Suit Challenges New Jersey's COVID-19 Limit On Worship Services

Earlier this week, two churches and their pastors filed suit in a New Jersey federal district court challenging New Jersey's COVID-19 orders which limit worship services to ten people.  The complaint (full text) in Solid Rock Baptist Church v. Murphy, (D NJ, filed 6/3/2020) alleges in part:

[L]ocal police officers have visited the churches, installed cameras on church property for surveillance purposes, investigated the parking lot of one church, filed Complaints against the 3 pastors for allowing religious gatherings that exceed the 10-people limit, even though the gathered individuals were separated by six feet and wore masks unless hindered from doing so for health reasons, while occupying the sanctuary, meeting or exceeding the social distancing and personal hygiene recommendations for “Essential Services” still permitted to gather.

... The Defendants’ Orders are not neutral laws of general applicability because they target constitutionally protected activity, significantly burden the Plaintiffs’ right to the freedom of religion and assembly, establish an orthodox form of religious exercise approved by the State of New Jersey, all the while providing broad exemptions for many secular activities that are not constitutionally protected....

[Thanks to Matthew Brown for the lead.]

Priest Sues Challenging New Jersey COVID-19 Order

Last week, a New Jersey Catholic priest filed suit challenging New Jersey Governor Phil Murphy's COVID-19 Order which has led to the closure of all Catholic churches in the state. The complaint (full text) in Robinson v. Murphy, (D NJ, filed 4/30/2020), alleging violations of the 1st and 14th Amendments, seeks a temporary restraining order preventing the state from imposing different restrictions on religious gatherings than it does on gatherings at "essential" commercial businesses.  NJ101.5 News reports on the lawsuit.

UPDATE: On July 23, plaintiffs filed a third amended complaint (full text) in the case. Thomas More Society issued a press release announcing the filing.

New Jersey's COVID-19 Ban Enforced Against Religious Life-Cycle Events

Philadelphia Inquirer yesterday published this report on enforcement in Lakewood, New Jersey of the state's COVID-19 ban on large gatherings:

Fifteen men were charged with violating Gov. Phil Murphy’s ban on large gatherings during the coronavirus crisis after they attended an Orthodox Jewish funeral Wednesday in Lakewood, the Ocean County Prosecutor’s Office said Thursday.

The gathering was one of several in Lakewood in recent weeks in which police were called to break up large groups of people. Other events included a bat mitzvah over the weekend; four separate weddings in which four people who hosted them were charged with a disorderly person offense or with maintaining a nuisance; and a gathering of about 25 young men at a school in which the headmaster was charged with maintaining a nuisance.

New Jersey's Aid In Dying Act Is Upheld

In Petro v. Grewal, (NJ Super., April 1, 2020), a New Jersey state trial court dismissed a suit challenging the constitutionality of New Jersey's Medical Aid in Dying for the Terminally Ill Act.  Plaintiffs challenged the law on numerous grounds, including under the free exercise clause. First the court held that plaintiffs lack standing to challenge the law, saying in part:

Their deeply felt religious, ethical or professional objections to the Act do not suffice to establish standing, even under New Jersey's liberal standard.

The court however went on to also reject plaintiffs' claims on the merits. In part of its opinion, the court rejected plaintiffs' free exercise objections to the obligation of a doctor who refuses to provide aid in dying to transfer health care records to a patient's new doctor. The court said that the law is a neutral law of general applicability, and that the obligation to transfer records is "minimally burdensome."  North Jersey.com reports on the decision.

Church Leaders Sentenced To Prison In Scheme To Siphon Off Church Funds

The U.S. Attorney's Office for the District of New Jersey announced this week:

The leader and the main treasurer of the Israelite Church of God in Jesus Christ were sentenced to federal prison today for their respective roles in a scheme in which both men caused the church to pay millions of dollars in personal expenses for the leader that the leader then omitted from his personal tax returns.

The two men had previously pleaded guilty to one count of conspiring to defraud the United States of at least $250,000 in taxes.  Jermaine Grant, the church leader, was sentenced to 18 months in prison. The treasurer, Lincoln Warrington, was sentenced to 12 months and one day.

Court Upholds Removal of Mosque's Finance Director

In Islamic Center of Passaic, Inc. v. Salahuddin, (NJ App.,Jan. 13, 2020), a New Jersey appellate court upheld the removal of defendant as finance director and member of the governing Shura Board of a New Jersey Islamic Center. Defendant was the wife of the founder and long-time spiritual leader of the Center. She clashed with the Center's new imam, refusing to allow him or the Shura Board to oversee her financial transactions on behalf of the organization.  The court said in part:

Here, the parties' claims arise from Islamic Center's constitution and bylaws and do not involve religious doctrine or practices. The trial court's findings of fact and conclusions of law concern whether Islamic Center complied with the procedures set forth in its organizational documents. Judge LaConte applied neutral principles of law to determine if Salahuddin was lawfully removed from office. Resolution of the parties' purely secular claims did not trespass on their religious freedoms.

With respect to Salahuddin's substantive claims, our scope of review of the judge's findings in this nonjury case is limited. We must defer to the judge's factual determinations, so long as they are supported by substantial credible evidence in the record....

[W]e are convinced there is substantial, credible evidence supporting Judge LaConte's findings of fact. We also agree with his legal conclusion Islamic Center complied with its constitution and bylaws when removing Salahuddin as finance director and Shura Board member.

Pennsylvania Archdiocese Can Be Sued In New Jersey Courts For Priest's Abuse In New Jersey

Doe I v. Archdiocese of Philadelphia, (NJ Super. Ct., Jan. 8, 2020) is a case in which plaintiff sued the Archdiocese of Philadelphia (PA) in a New Jersey court alleging that in the 1970's he was sexually abused by a now-deceased priest who was assigned to a Pennsylvania parish.  The abuse, however, took place in New Jersey.  The suit claims that the Archdiocese was negligent in hiring, supervising and investigating complaints against the priest. Apparently the suit was brought in New Jersey because the state had extended its statute of limitations in child sex abuse cases, while Pennsylvania's statute of limitations would bar the lawsuit.  The New Jersey trial court rejected the Archdiocese's claim that the suit should be dismissed either for lack of jurisdiction or on forum non conveniens grounds. As to jurisdiction, the court said in part:

Here, the alleged conduct by the defendants’ agent ..., while in New Jersey ... caused serious injury – in the form of sexual abuse – to plaintiff. Once the abuse began, Brugger purposely transported plaintiff from Pennsylvania to New Jersey on two additional occasions to continue the abuse....

[P]laintiff is now, and was at all relevant times, a resident of Pennsylvania. Thus, plaintiff’s choice of forum in New Jersey is granted substantially less deference.... Additionally, the majority of potential witnesses are domiciled in Pennsylvania.... The Archdiocese’s principal office is located in ... Pennsylvania.... [However] the Archdiocese previously owned two properties in ... Atlantic County, New Jersey – the very county where the instant litigation pends....The New Jersey property ownership took place during the times relevant to this litigation, although no alleged abuse by Brugger occurred at either location....

Under this set of facts, it would not be a violation of defendants’ due process rights to subject them to the long-arm jurisdiction of the Courts of New Jersey, given their contacts with this State.....

Denying defendants' forum non conveniens defense, the court said in part:

the alternate forum, Pennsylvania, is inadequate as there remains no remedy there for the plaintiff due to its strict statute of limitations.

Former Cardinal McCarrick and Newark Archdiocese Sued By Sex Abuse Victim

Just minutes after a new New Jersey law went into effect opening a 2-year window in which previously time-barred sex abuse cases can be filed, suit was filed in a New Jersey state trial court against former Cardinal Theodore McCarrick and the Catholic Archdiocese of Newark. The complaint (full text) in Bellocchio v. Roman Catholic Archdiocese of Newark, (NJ Super. Ct., filed 12/1/2019), states claims for sexual battery against McCarrick, and for negligence against the Archdiocese. It alleges in part:

31. In approximately 1995 or 1996, when Plaintiff was approximately 13 or 14 years old, McCarrick engaged in unpermitted sexual contact with Plaintiff.

32. McCarrick engaged in a similar course of conduct and pattern of sexual predation of devout Catholic youth under his control.

Washington Post and America report on the lawsuit.

New Jersey Assisted Suicide Law Reinstated By Appeals Court

In Glassman v. Grewal, (NJ App.,  Aug. 27, 2019), a New Jersey state appeals court lifted the temporary restraining order entered by a trial courtearlier this month (see prior posting) preventing the state's Aid in Dying for the Terminally Ill Act from being enforced.The appeals court said in part:

Here, plaintiff failed to establish that injunctive relief was necessary to prevent irreparable harm and preserve the status quo.... The only harm identified by the court was the Executive Branch's failure to adopt enabling regulations. Neither the court nor plaintiff, however, identified how the absence of such regulations harmed him, irreparably or otherwise.... 

Further, as the Act makes clear, participation by physicians like plaintiff is entirely voluntary. The only requirement the Act imposes on health care providers who, based upon religious or other moral bases, voluntarily decide not to treat a fully-informed, terminally-ill patient interested in ending their lives, is to transfer any medical records to the new provider selected by the patient. See N.J.S.A. 26:16-17(c). We fail to discern how the administrative function of transferring those documents constitutes a matter of constitutional import, or an act contrary to a physician's professional obligations. In this regard, we note that a physician has long been required to transfer a patient's records on request, see N.J.A.C. 13:35-6.5, and does so without personal assent to any subsequent medical procedures.

A few hours later, the New Jersey Supreme Court refused to vacate the appeals court decision. (Full text of Supreme Court Order.) NorthJersey.com reports on the decisions.

3rd Circuit: Abortion Clinic Buffer Zone Challenge Remanded For Trial

In Turco v. City of Englewood, New Jersey, (3d Cir., Aug. 19, 2019), the U.S. 3rd Circuit Court of Appeals held that neither side was entitled to summary judgment in a challenge to Englewood's ordinance creating an 8-foot buffer zone around abortion clinics. The ordinance was enacted in response to aggressive anti-abortion protests that regularly occurred outside one clinic. In reversing the district court's grant of summary judgment to plaintiff and remanding the case for further proceedings, the appeals court said in part:

This record contains a multitude of contradicting factual assertions. Some facts suggest that the buffer zones imposed a significant restraint on the plaintiff’s ability to engage in constitutionally-protected communication. Others support Englewood’s position that the buffer zones hardly affected plaintiff’s ability to reach her intended audience. Some facts support plaintiff’s argument that the City had foregone less restrictive options to address the chaotic environment outside of the clinic. Others show that Englewood considered these options and reasonably rejected them or found them to be ineffective. In short, the record does not conclusively demonstrate that either party is entitled to summary judgment on the narrow tailoring claim.

North Jersey Record reports on the decision. [Thanks to Tom Rutledge for the lead.]

Court Temporarily Enjoins New Jersey's Assisted Suicide Law

Fox29 News reports that on Wednesday, a New Jersey state trial court judge issued a temporary restraining order preventing the state's Aid in Dying for the Terminally Ill Act from being enforced.  The bill took effect on Aug. 1. (Background).  The suit challenging the Act was brought by an Orthodox Jewish physician who says that the law is an affront to religious doctors.  Sec. 26-16-17(c) of the Act provides:

If a health care professional is unable or unwilling to carry out a patient's request under P.L.2019, c.59 (C.26:16-1 et al.), and the patient transfers the patient’s care to a new health care professional or health care facility, the prior health care professional shall transfer, upon request, a copy of the patient's relevant records to the new health care professional or health care facility.

The lawsuit alleges that this requirement to transfer records violates doctors' rights to practice medicine without breaching the fiduciary duties of their patients as well as doctors' rights "to freely practice their religions in which human life is sacred and must not be taken." A hearing in the case is set for October.

New Jersey Town Settles With Native American Tribe Seeking Use of Its Sacred Land

Mahwah Patch reports that a settlement has been reached in four pending cases pitting the Native American Ramapough Lenape Nation against the Township of Ramapough, New Jersey. Three of the cases are land use and zoning claims against the Indian Tribe. The fourth is a federal civil rights suit by the Tribe  claiming that local officials along with a neighboring housing association are attempting to prevent the Ramapoughs from using their own prayer ground for religious activities. (See prior posting.) Under the settlement agreement, the Tribe can continue to hold community and religious gatherings at its Sweet Water Prayer Site, and the Township will not try to remove the Tribe's sacred prayer circle or stone altar from the site. The settlement also dismisses millions of dollars of fines that had been levied against the Tribe. A civil rights action by the Tribe against the Ramapo Hunt & Polo Club has not been settled. That suit alleges that the Club, which borders the Tribe's Prayer Site, has conspired to deny the Tribe the use of its own land. Center for Constitutional Rights also issued a press release announcing the settlement agreement.

Court Says Conversion Therapy Provider Violated Injunction

In Ferguson v. JONAH, (NJ Super. Ct., June 10, 2019), a New Jersey state trial court judge held that the organization JONAH (Jews Offering New Alternatives for Healing), its founder and a counselor, have violated a permanent injunction issued in 2015. JONAH provided "conversion therapy" that it falsely claimed could change an individual from gay to straight.  Instead of appealing the decision, defendants entered a confidential settlement agreement and agreed to the issuance of a permanent injunction requiring JONAH to cease operations and liquidate. (See prior posting.) The court held that defendants' new organization, JIFGA (Jewish Institute for Global Awareness), is a mere continuation of JONAH. NJ.com  reports on the decision. [Thanks to Steven H. Sholk for the lead.]

New Jersey Governor Signs Statute of Limitations Extension For Sex Abuse Claims

New Jersey Gov. Phil Murphy on Monday signed S. 477 (full text) (Governor's signing statement) (press release). The new law extends the statute of limitations for suits for sex abuse of claims by minors and adults. The accompanying statement of the Senate Judiciary Committee explains the new law's complex provisions in detail.  It summarizes the changes as follows:

This substitute bill would extend the statute of limitations in civil actions for sexual abuse claims, as well as create a two-year window for parties to bring previously time-barred actions based on sexual abuse. The bill would also expand the categories of potential defendants in civil actions, and for some actions permit retroactive application of standards of liability to past acts of abuse for which liability did not previously exist.

Settlement Reached Requiring Subdivision Gates To Be Open On Sabbath

According to a press release this week from the Office of the New Jersey Attorney General, a settlement agreement has been reached in a religious discrimination suit filed with the state civil rights division:

The homeowner, Nathan Reiss, filed a discrimination complaint in 2017 against The Enclave at the Fairways in Lakewood, alleging that security measures at the adult community interfered with his ability – and the ability of his fellow Orthodox Jewish neighbors – to observe the Sabbath. Specifically, Reiss alleged, a locking electronic pedestrian gate at a community entrance near his home prevented Orthodox Jewish Sabbath observers from walking to synagogue....

Under the settlement announced today and a similar settlement reached in a case filed in federal court, the Enclave Homeowners Association has agreed to unlock the pedestrian gate on the Sabbath, and to make other scheduling accommodations for Jewish Holy Days.

Matzav reports on the settlement. [Thanks to Steven H. Sholk for the lead.]

Two Church Leaders Plead Guilty To Tax Fraud Conspiracy Involving Diversion of Church Funds

On Tuesday, the U.S. Attorney's Office for the District of New Jersey announced that two church leaders have plead guilty to a charge of conspiracy to commit tax fraud:

The leader and the main treasurer of the Israelite Church of God in Jesus Christ admitted their respective roles today in a scheme in which both men caused the church to pay millions of dollars in personal expenses for the leader that the leader then omitted from his personal tax returns....

Grant and Warrington used their leadership positions in the church to divert to Grant millions of dollars belonging to the church and its members for Grant’s personal use and benefit. The defendants used a variety of methods to carry out the scheme. For example, Grant and Warrington created a purported entertainment company that portrayed Grant as an industry mogul whose wealth was derived from his success in the industry, thereby concealing from church members that his lifestyle was supported entirely by the church and donations from its members. 

3rd Circuit Hears Oral Arguments In Fair Housing Act Challenge To Sex-Segregated Pool Hours

On Tuesday, the U.S. 3rd Circuit Court of Appeals heard oral arguments in Curto v. Country Place Condominium Association, Inc. (audio of full oral arguments). As reported by Courthouse News Service, at issue is whether a New Jersey condominium association's sex-segregated swimming pool hours, instituted to accommodate the condos' large Orthodox Jewish population, violate the federal Fair Housing Act.

New Trial Ordered After Juror Questions Defendant's Taking of Oath

In Davis v. Husain, (NJ App., March 1, 2019), a New Jersey state appellate court, in a hostile work environment case that has already wound its way to the state Supreme Court once, ordered a new trial.  At issue is a statement that was made by one of the jurors raising a question about the testimony of the defendant. The juror noted that defendant, a Hindu, had not placed his hand on the Bible when taking the oath. In earlier proceedings, it was shown that the defendant had acted in this way, at least in part, because of his religious belief that the left hand should never be placed on a holy book.  In ordering a new trial, the appeals court said in part:

The juror's comment regarding the Bible raises the specter of religious bigotry. Whether that concern colored the view of the other jurors is still unknown, with the exception of the juror who appeared. This is a peculiar situation. The Law Division judge said the juror who made the observation was only concerned with Husain's credibility, i.e. that a person who refused to place his hand on the Bible was incapable of taking the oath seriously and was therefore incredible. He contrasted this with out-and-out religious bigotry. But if he was correct, that too is simply impermissible. The exercise of a person's religion should not make him or her per se incredible.

NJ.com reports on the decision.

Supreme Court Denies Cert. In Case On Preservation Grants To Churches

The U.S. Supreme Court today denied review in the companion cases of Morris County Board of Chosen Freeholders v. Freedom From Religion Foundation, (Docket No.18-364) and Presbyterian Church in Morristown v. Freedom From Religion Foundation, (Docket No. 18-365) (certiorari denied 3/4/2019). (Order List [scroll to pg. 9]).  In the case, the New Jersey Supreme Court held that historic preservation grants to 12 churches (totaling $4.6 million) violate the Religious Aid Clause of the New Jersey Constitution.  That clause (Art. I, Sec. 3) provides that no person shall be obliged to pay taxes for building or repairing any church. The New Jersey Supreme Court concluded that there is no implied exception to this prohibition for historical preservation, and that this is consistent with the Free Exercise Clause of the U.S. Constitution. (See prior posting.)  In the U.S. Supreme Court today, Justice Kavanaugh, joined by Justices Alito and Gorsuch, filed a statement concurring in the denial of review, but contending that:

the decision of the New Jersey Supreme Court is in serious tension with this Court’s religious equality precedents.

However they agreed that certiorari should be denied in this case both because of unclear factual details and because

there is not yet a robust post-Trinity Lutheran body of case law in the lower courts on the question whether governments may exclude religious organizations from general historic preservation grants programs.

New Jersey Dioceses Release Names of Accused Priests

North Jersey Record reports that the five Catholic dioceses in New Jersey yesterday posted the names of 188 priests who have been credibly accused of sexually abusing children over past decades.79 of the priests listed are still living. In a letter to the faithful of the Archdiocese of Newark, Cardinal James Tobin announced that a new Independent Victim Compensation Program has been established.