Monday, July 06, 2020

Recent Articles of Interest

From SSRN:
From SmartCILP:

Michigan Mosque Sues Cemetery Over Need To Prepay For Grave Sites

In May, suit was filed in a state trial court in Dearborn, Michigan by a local mosque which claims that a cemetery is attempting in breach of contract to double the price of grave space for mosque members during the COVID-19 emergency.  On July 2, the mosque filed a motion (full text) for summary judgment on its breach of contract claim. The allegations in American Moslem Society v. Midwest Memorial Group, LLC, (MI Cir. Ct., filed 7/2/2020), are that the mosque entered three separate contracts over the years for the purchase of a large number of graves at a discount price, and then made the graves available to its members when needed by them. The mosque has paid $380,000 for 608 of the 1000 graves acquired under its latest contract. The cemetery now contends that the mosque must pay in advance for all 1000 graves before it may use any of them. Plaintiffs' motion for Summary Disposition alleges in part:
Defendant's unjustified refusal to allow burials in AMS III at a time of great suffering and need in the wake of the COVID-19 pandemic is clearly part of a grossly improper attempt to shake down Plaintiff and its members.  Defendant's April 14 letter cynically proposes a simple "cure" for the problem.  Plaintiff either 1)  pays the amount of $353,750 remaining ..., or 2) waives its rights under the 2017 Contract and enters into a new contract in which the cost of graves ... is roughly doubled.
... Defendant's demands are particularly coercive in light of its knowledge that the AMS community is extraordinarily tight knit and places a high premium on having its loved ones buried in close proximity to each other and to their mosque, which is located adjacent to the cemetery.
Detroit News reports on the lawsuit.

Sunday, July 05, 2020

Justice Kavanaugh Refuses To Enjoin Illinois District Court's Upholding of COVID-19 Limits On Political Gatherings

As previously reported, on July 2 an Illinois federal district court rejected arguments by state and local Republican organizations that the governor's COVID Order placing more restrictions on political party gatherings than religious gatherings violates the First and Fourteenth Amendments. On July 3, the U.S. 7th Circuit Court of Appeals denied plaintiffs' application for a injunction pending appeal. Plaintiffs immediately filed an Emergency Application for an Injunction (full text) with the U.S. Supreme Court, through a filing with Justice Kavanaugh who is Circuit Justice for the 7th Circuit.  The petition requested relief by 5:00 pm on July 4. On July 4, Justice Kavanaugh denied the request. Washington Examiner reports on the Supreme Court's action.

Friday, July 03, 2020

British Pastors Sue Challenging Government COVID-19 Orders Which Closed Churches

In Britain, a group of 26 Christian pastors and activists have filed suit challenging the closure of churches as part of the response to COVID-19, even though the government has allowed reopening of churches as of July 4.  The complaint (full text) in The Queen on application of Omooba v. Secretary of State for Health and Social Care, (QB, filed 6/23/2020), contends in part:
The Claimants do not for a moment suggest that churches should have continued to operate as before notwithstanding the Coronavirus epidemic. Rather, the Claimants’ concern is that, as a matter of principle, the imposition of appropriate anti-epidemic measures in the Church is ultimately a matter for Church authorities rather than secular state authorities.
Christian Concern issued a press release announcing the filing. Free Thinker blog has additional reporting.

Illinois Can Favor Religious Gatherings Over Political Ones

In Illinois Republican Party v. Pritzker, (ND IL, July 2, 2020) an Illinois federal district court rejected arguments by state and local Republican organizations that the governor's COVID Order placing more restrictions on political party gatherings than religious gatherings violates the First and Fourteenth Amendments. The court said in part:
Because the exemption is a content-based restriction, this provision can only stand if it survives strict scrutiny....
Plaintiffs contend that the Governor cannot satisfy the least restrictive means test because a political party caucus is no more likely to spread COVID-19 than a church service.... However, the Constitution does not accord a political party the same express protections as it provides to religion.... Additionally, the Order’s limited exemptions reinforce that it is narrowly tailored. The Order only exempts two other functions from the gathering limit: emergency and governmental functions. These narrow exemptions demonstrate that the Order eliminates the increased risk of transmission of COVID-19 when people gather while only exempting necessary functions to protect health, safety, and welfare and free exercise of religion. Therefore, the Governor has carried his burden at this stage in demonstrating that the Order is narrowly tailored to further a compelling interest, and the Order survives strict scrutiny.

Execution Delay Sought Because of Health of Chaplain

USA Today reports on anew twist in litigation seeking to delay execution of an inmate.  A suit was filed in federal district court in Indiana seeking a stay:
The lawsuit, filed on behalf of a Buddhist priest who has ministered to condemned inmate Wesley Purkey, argues that the pandemic would risk the health of Rev. Seigen Hartkemeyer who is "religiously obligated" to attend Purkey's July 15 execution....
Purkey's lawyers asserted that Rev. Hartkemeyer, 68, has lung-related illnesses that "make him particularly vulnerable to COVID-19."
The lawsuit claims that the timing of the execution, "forcing Rev. Hartkemeyer to risk his health and life to perform his religious duties as Purkey’s priest," violates the Religious Freedom Restoration Act. 

Supreme Court Denies Review To Deported Iraqi Christians, Yezidis, Kurds

The U.S. Supreme Court yesterday denied review in Hamama v. Adducci,  (Docket No. 19-294, cert denied 7/2/2020). (Order List). According to the petition for certiorari:
Petitioners are Iraqis with final orders of removal who lived for years or decades in the United States under orders of supervision...  Petitioners and others similarly situated were suddenly detained and threatened with immediate removal, without the opportunity to challenge their removal in immigration court. Petitioners, who include Christians, Yezidis, Kurds, and other religious and ethnic minorities in Iraq, faced likely torture and death in Iraq. After their final orders of removal were issued, country conditions in Iraq had changed drastically, such that Petitioners had strong claims for deportation protection under, inter alia, the Convention Against Torture. In order to assert those claims, Petitioners needed to move to reopen their final orders in the appropriate immigration court.... Petitioners requested a temporary stay of removal so they could access the immigration court system. The district court granted the stay, giving Petitioners 90 days after receipt of the necessary immigration court files to file motions to reopen in immigration court. The court of appeals reversed, holding that 8 U.S.C. § 1252(g) divested the district court of jurisdiction and that the elimination of jurisdiction was consistent with the Suspension Clause. 

Supreme Court Clears Docket In Light of Two Recent Major Decisiions.

In orders released yesterday (Order List), the U.S. Supreme Court cleared its docent of a number of abortion cases in light of its decision earlier this week in June Medical Services v. Russo.  The court granted certiorari and summarily vacated the judgment below and remanded to the 7th Circuit two appeals in Box v. Planned Parenthood of Indiana and Kentucky (Docket No. 18-1019 and 19-816). The Court also denied certiorari in Yost v. Planned Parenthood, (Docket No. 19-677) and Hill v. Whole Woman's Health, (Docket No. 19-743).

In light of its school aid decision earlier this week in Espinoza v. Montana Department of Revenue, the Court granted certiorari, summarily vacated the judgment below and remanded to the 7th Circuit the appeal in St. Augustine School v. Stand.

EEOC Wins Suit On Behalf of Fired Jehovah's Witness

The EEOC announced yesterday that a New York federal district court has entered a consent decree in a religious discrimination lawsuit brought on behalf of a Jehovah's Witness who was fired as an administrative assistant at a Manhattan pediatric medical practice:
Pediatrics 2000 was aware that its worker was a Jehovah’s Witness when she was hired and initially accommodated her request not to work on Wednesdays due to her religious practices on that day. But then the company demonstrated animus toward her religion, saying that her religion was a “cult,” and placed her on probation for “missing” work on Wednesdays. When the worker requested to be excused from the company’s holiday party for religious reasons, she was fired — even though other employees were permitted to miss the party for non-religious reasons....
The decree gives $68,000 in lost wages and other damages for the worker and grants injunctive relief, including: the creation of anti-discrimination policies and procedures....

Church's Appeal of Visa For Its Music Director Fails

In Liberty Church of the Assemblies of God v. Pompeo, (D MA, July 1, 2020), a Massachusetts federal district court invoked the doctrine of consular non-reviewability to dismiss a church's appeal of the denial of an R-1 visa to its Director of Music and Media.
[T]he complaint fails to plausibly plead a violation of Liberty Church’s constitutional rights. Although Liberty Church broadly alleges that the act of denying Mr. Rocha a visa infringed its rights under the Establishment Clause by making it “suddenly and unduly unable to establish church services” ..., it has not explained how it has been unable to establish church services in the wake of the denial. There is no indication, for example, that Liberty Church cannot operate without Mr. Rocha.... Indeed, the allegations in the complaint suggest the exact opposite.... To the extent Liberty Church instead means to contend that it needs someone (if not Mr. Rocha himself) to serve as Director of Music and Media, nothing in the complaint would allow the Court to reasonably infer that the denial of Mr. Rocha’s visa application rendered Liberty Church unable to employ a Director of Music and Media.

Appeals Court Upholds NY Abortion Coverage Requirement

In Roman Catholic Diocese of Albany v Vullo, (NY App.Div., July 2, 2020), a New York state appellate court rejected a challenge by several religious organizations and other plaintiffs to a New York administrative regulation  requiring health insurance policies in New York to provide coverage for medically necessary abortion services. The court held that the case was governed by a 2006 decision of New York's highest court rejecting a challenge to a state statutory requirement that health insurance policies which provide coverage for prescription drugs must include coverage for prescription contraceptives, saying in part:
The overriding reason for such rejection — equally applicable in the instant case — was that the WHWA set forth a neutral directive with respect to prescription medications to be uniformly applied without regard to religious belief or practice, except for those who qualified for a narrowly tailored religious exemption 
The court also rejected the argument that the Superintendent of Financial Services had exceeded his regulatory authority in promulgating the regulation.

Thursday, July 02, 2020

Suit Challenges Virginia's Ban On LGBT Discrimination In Public Accommodations

Suit was filed on Tuesday in a Virginia federal district court by a wedding photographer challenging the Virginia Values Act which  prohibits businesses from discriminating on the basis of sexual orientation. The complaint (full text) in Chris Herring Photography, LLC v. Herring, (ED VA, filed 6/30/2020) alleges in part:
Virginia interprets this law to force Chris to do more than serve LGBT clients (which Chris already does). Virginia instead requires Chris to promote content he disagrees with—to create and convey photographs and blogs celebrating same-sex weddings because he does so for weddings between a man and a woman. The law even makes it illegal for Chris to hold a policy of photographing and blogging about weddings only between a man and woman or to post internet statements explaining his religious reasons for only creating this wedding content.
ADF issued a press release announcing filing of the lawsuit.

California Sues Cisco Alleging Caste-Based Discrimination

In a June 30 press release, the California Department of Fair Employment & Housing announced the filing of an unusual employment discrimination lawsuit against Cisco Systems, Inc. and two of its managers:
The lawsuit alleges that managers at Cisco’s San Jose headquarters campus, which employs a predominantly South Asian workforce, harassed, discriminated, and retaliated against an engineer because he is Dalit Indian, a population once known as the “untouchables” under India’s centuries-old caste system....
The lawsuit alleges that Complainant was expected to accept a caste hierarchy within the workplace where he held the lowest status within a team of higher-caste colleagues, receiving less pay, fewer opportunities, and other inferior terms and conditions of employment because of his religion, ancestry, national origin/ethnicity, and race/color.
The Print reports on the lawsuit.

Wednesday, July 01, 2020

White House Praises Espinoza Decision

The White House press secretary yesterday issued the following statement (full text) on the Supreme Court's decision in Espinoza v.Montana Department of Revenue:
We celebrate today’s Supreme Court decision on religious schools, which removes one of the biggest obstacles to better educational opportunities for all children.  States may no longer hide behind rules motivated by insidious bias against Catholics, known as Blaine Amendments, to exclude religious schools from public benefits.  Laws that condition public benefits, like need-based academic scholarships, on religious status demonstrate state-sanctioned hostility to religion, pressure people and institutions to censor their religious views, and stigmatize disfavored religions.  The Trump Administration believes that school choice is a civil rights issue, and that no parent should be forced to send their child to a failing school.  President Donald J. Trump will fight for school choice, and he will always defend our first freedom: the free exercise of religion.

Tuesday, June 30, 2020

Supreme Court Says Montana Cannot Exclude Religious Schools From Tax-Credit Program

In Espinoza v. Montana Department of Revenue, (US Sup. Ct., June 30, 2020), the U.S. Supreme Court in a 5-4 decision held that Montana's exclusion of religious schools from its scholarship tax credit program violates the Free Exercise clause of the U.S. Constitution.  The Montana Supreme Court had invalidated the entire scholarship program because it included religious schools, relying on the "no aid" provision of the Montana constitution.  Chief Justice Roberts majority opinion, joined by Justices Thomas, Alito, Gorsuch and Kavanaugh, said in part:
This case also turns expressly on religious status and not religious use. The Montana Supreme Court applied the no-aid provision solely by reference to religious status. The Court repeatedly explained that the no-aid provision bars aid to “schools controlled in whole or in part by churches,” “sectarian schools,” and “religiously-affiliated schools.”... Applying this provision to the scholarship program, the Montana Supreme Court noted that most of the private schools that would benefit from the program were “religiously affiliated” and “controlled by churches,” and the Court ultimately concluded that the scholarship program ran afoul of the Montana Constitution by aiding “schools controlled by churches.”... The Montana Constitution discriminates based on religious status just like the Missouri policy in Trinity Lutheran, which excluded organizations “owned or controlled by a church, sect, or other religious entity.”...
...Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.
Justice Thomas filed a concurring opinion which was joined by Justice Gorsuch, saying in part:
I write separately to explain how this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights. Until we correct course on that interpretation, individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom.
Justice Alito filed a concurring opinion, saying in part:
Respondents argue that Montana’s no-aid provision merely reflects a state interest in “preserv[ing] funding for public schools,”... known as “common schools” during the Blaine era. Yet just as one cannot separate the Blaine Amendment from its context, “[o]ne cannot separate the founding of the American common school and the strong nativist movement.”  Spearheaded by Horace Mann, Secretary of the Massachusetts Board of Education from 1837 to 1848, the common-school movement did not aim to establish a system that was scrupulously neutral on matters of religion. (In a country like ours, that would have been exceedingly difficult, if not impossible.) Instead the aim was to establish a system that would inculcate a form of “least-common denominator Protestantism.”This was accomplished with daily reading from the King James Bible, a curriculum that, Mann said, let the book “speak for itself.” ... Yet it was an affront to many Christians and especially Catholics, not to mention non-Christians.
Mann’s goal was to “Americanize” the incoming Catholic immigrants. In fact, he and other proponents of the common-school movement used language and made insinuations that today would be considered far more inflammatory.
Justice Gorsuch filed a concurring opinion, saying in part:
 I was not sure about characterizing the State’s discrimination in Trinity Lutheran as focused only on religious status, and I am even less sure about characterizing the State’s discrimination here that way....
Maybe it’s possible to describe what happened here as status-based discrimination. But it seems equally, and maybe more, natural to say that the State’s discrimination focused on what religious parents and schools do—teach religion....
Most importantly, though, it is not as if the First Amendment cares. The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.
Justice Ginsburg filed a dissenting opinion, joined by Justice Kagan, saying in part:
[T]he Montana court remedied the state constitutional violation by striking the scholarship program in its entirety. Under that decree, secular and sectarian schools alike are ineligible for benefits, so the decision cannot be said to entail differential treatment based on petitioners’ religion.
Justice Breyer filed a dissenting opinion, joined in part by Justice Kagan, saying in part:
It is true that Montana’s no-aid provision broadly bars state aid to schools based on their religious affiliation. But this case does not involve a claim of status-based discrimination. The schools do not apply or compete for scholarships, they are not parties to this litigation, and no one here purports to represent their interests. We are instead faced with a suit by parents who assert that their free exercise rights are violated by the application of the no-aid provision to prevent them from using taxpayer-supported scholarships to attend the schools of their choosing. In other words, the problem, as in Locke, is what petitioners “‘propos[e] to do—use the funds to’” obtain a religious education. ....
I agree with the majority that it is preferable in some areas of the law to develop generally applicable tests. The problem, as our precedents show, is that the interaction of the Establishment and Free Exercise Clauses makes it particularly difficult to design a test that vindicates the Clauses’ competing interests in all—or even most—cases.That is why, far from embracing mechanical formulas, our precedents repeatedly and frankly acknowledge the need for precisely the kind of “‘judgment-by-judgment analysis’” the majority rejects.
Justice Sotomayor filed a dissenting opinion, saying in part:
Neither differential treatment nor coercion exists here because the Montana Supreme Court invalidated the tax-credit program entirely....
To be sure, petitioners may want to apply for scholarships and would prefer that Montana subsidize their children’s religious education. But this Court had never before held unconstitutional government action that merely failed to benefit religious exercise....
[T]he Montana Supreme Court remedied a state constitutional violation by invalidating a state program on state-law grounds, having expressly declined to reach any federal issue....
NPR reports on the decision.

European Court Says Greece Should Not Have Indicated Non-Christening On Birth Record

In Stavropoulos and others v. Greece, (ECHR, June 25, 2020), the European Court of Human Rights, in a Chamber Judgment, held that Greece violated the religious freedom rights of parents when when their child's first name was entered into the birth record with an abbreviation in brackets next to it indicating that the parents had not christened the child.  The court, finding a violation of the European Convention on Human Rights, said in part:
[T]he Court shares the applicants’ view that the note “naming” next to the third applicant’s first name carries a connotation, namely that she was not christened and that her name was given by the civil act of naming. That conclusion is further reinforced by the section concerning christening that is included in the birth registration act which ... has been left blank. Such information appearing in a public document issued by the State constitutes an interference with the right of all of the applicants not to be obliged to manifest their beliefs, which is inherent in the notion of freedom of religion and conscience as protected by Article 9 of the Convention. That is because it implies that the first and second applicants, as the parents and legal guardians of the third applicant, chose not to have the third applicant christened.
The court awarded damages of €10,000, plus costs, to petitioners.

Monday, June 29, 2020

Supreme Court Invalidates Louisiana Abortion Law Requiring Clinic Doctors To Have Hospital Admitting Privileges

The U.S. Supreme Court today in June Medical Services L.L.C. v. Russo, (U.S. Sup. Ct., June 29, 2020), by a 5-4 vote, struck down Louisiana's law that requires doctors at abortion clinics to hold active admitting privileges at a hosp[ital within 30 miles of the clinic.  At issue in the case were (1) whether abortion providers have standing to assert their patients' abortion rights, and (2) whether the Louisiana statute is constitutional.  The Court in 2016 in Whole Women's Health v. Hellerstedt struck down a similar Texas statute.

Justice Breyer wrote today's plurality opinion which was joined by Justices Ginsburg, Sotomayor and Kagan.  As to standing, the plurality held:
The State did not mention its current objection until it filed its cross-petition—more than five years after it argued that the plaintiffs’ standing was beyond question.
The State’s unmistakable concession of standing as part of its effort to obtain a quick decision from the District Court on the merits of the plaintiffs’ undue-burden claims bars our consideration of it here.
On the merits, the plurality said in part:
The District Court found that enforcing the admitting privileges requirement would “result in a drastic reduction in the number and geographic distribution of abortion providers.” ... In light of demographic, economic, and other evidence, the court concluded that this reduction would make it impossible for “many women seeking a safe, legal abortion in Louisiana . . . to obtain one” and that it would impose “substantial obstacles” on those who could....
The District Court found that there was “‘no significant health-related problem that the new law helped to cure.’” ...
We conclude, in light of the record, that the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support. None is “clearly erroneous.” Given the facts found, we must also uphold the District Court’s related factual and legal determinations. These include its determination that Louisiana’s law poses a “substantial obstacle” to women seeking an abortion; its determination that the law offers no significant health-related benefits; and its determination that the law consequently imposes an “undue burden” on a woman’s constitutional right to choose to have an abortion.
Chief Justice Roberts filed a concurring opinion, saying in part:
I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.....
The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.
Justice Thomas filed a dissenting opinion, saying in part:
Despite the fact that we granted Louisiana’s petition specifically to address whether “abortion providers [can] be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients,” ... a majority of the Court all but ignores the question. The plurality and THE CHIEF JUSTICE ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.
Justice Alito filed a dissenting opinion, joined by Justice Gorsuch, and joined in part by Justices Thomas and Kavanaugh, saying in part:
The plurality concludes that the Louisiana law does nothing to protect the health of women, but that is disproved by substantial evidence in the record. And the plurality upholds the District Court’s finding that the Louisiana law would cause a drastic reduction in the number of abortion providers in the State even though this finding was based on an erroneous legal standard and a thoroughly inadequate factual inquiry....
Both the plurality and THE CHIEF JUSTICE hold that abortion providers can invoke a woman’s abortion right when they attack state laws that are enacted to protect a woman’s health. .... [T]he idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.
Justice Gorsuch filed a dissenting opinion, saying in part:
The judicial power is constrained by an array of rules. Rules about the deference due the legislative process, the standing of the parties before us, the use of facial challenges to invalidate democratically enacted statutes, and the award of prospective relief. Still more rules seek to ensure that any legal tests judges may devise are capable of neutral and principled administration. Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be.
Today’s decision doesn’t just overlook one of these rules. It overlooks one after another....
Justice Kavanaugh filed a dissent, saying in part:
[I]n my view, additional fact finding is necessary to properly evaluate Louisiana’s law. As JUSTICE ALITO thoroughly and carefully explains, the factual record at this stage of plaintiffs’ facial, pre-enforcement challenge does not adequately demonstrate that the three relevant doctors ... cannot obtain admitting privileges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-privileges law.
New York Times reports on the decision.

Recent Articles of Interest

From SSRN:
From SSRN (Islamic Law);
From SmartCILP and elsewhere: