West Virginia Sues Catholic Diocese For Past Abuse of Minors

As reported by The Hill, West Virginia's Attorney General announced yesterday that the state had filed a civil suit against the Catholic Diocese of Wheeling-Charleston.  The case grew out of Pennsylvania's Statewide Investigating Grand Jury Report on sexual abuse of minors. (See prior posting.)  Some of the priests identified in that Report had at one time been employed by the West Virginia diocese. The complaint (full text) in State of West Virginia v. Diocese of Wheeling Charleston, (WV Cir. Ct., filed 3/19/2019), alleges that the Diocese knowingly employed admitted and credibly accused sexual abusers and hired priests and lay employees without adequate background checks. The suit was brought under West Virginia's Consumer Credit and Protection Act and contends that the Diocese falsely advertised that it provided a safe learning environment and intentionally concealed the danger in its educational and recreational services.

Bavarian Court Upholds Ban On Judges and Prosecutors Wearing Hijab

In Germany, Bavaria's constitutional court yesterday upheld a Bavarian law banning judges and prosecutors from wearing religious symbols in the courtroom. The court said that officials administering justice have a special obligation to be neutral in religion and ideology.  The ban was challenged a Muslim group that objected to the ban's application to the wearing of Islamic head scarfs. DW reports:

The judge voiced the opinion that the ban, which also forbids officials to wear religious symbols such as crosses or a kippa — or yarmulke — during court proceedings, did not go against laws on religious freedom or equality....

The Islamic group had argued that the ban violated both laws, as the Christian symbol of the cross hangs in Bavarian courtrooms.

This argument was not accepted by the court, which maintained that the presence of crosses was a different matter, as it was determined by the court administration and cast no doubt on the neutrality of individual judges or lawyers.

The court also said the ban did not discriminate against women, as other items of clothing with religious significance that were worn by men were also forbidden.

South African Court Invalidates Dutch Reformed Church's LGBT Policy

In South Africa, a 3-judge panel of the North Gauteng High Court set aside as unlawful and invalid a decision on same-sex relationships made by the General Synod of the Dutch Reformed Church during the Synod's November 2016 meeting. That decision reversed a 2015 policy that recognized same-sex civil unions and allowed the ordination of gays and lesbians.  In Gaum v. Van Rensburg, S.A. High Ct., March 8, 2019), the court said in part:

The Church denied that the 2016 decision prevents the participation of the LGBTQIA+ community in the church community, or that it impedes their private lives, or that the decision violates their constitutional rights.... On behalf of the Church it was submitted that the 2016 decision did not restrict Gaum’s right to freedom of association; Gaum is free to join another Church that interprets the Bible in the way that Gaum does....

The differentiation caused by the 2016 decision does inherently diminish the dignity of Gaum because same-sex relationships are tainted as being unworthy of mainstream church ceremonies and persons in a same-sex relationship cannot be a Minister in the Church....

There is an argument to be made that a Court cannot prescribe who must be appointed as a Minister in a Church. But, if a member of the Church is permitted to study to become a Minister in that Church, but disallowed to engage in his or her profession only due to the fact that he or she would be in same sex relationship there is an inherent contradiction in the conduct of the Church....

The threshold requirement in section 36 of the Constitution is that any limitation of a fundamental right must be “law of general application …” Where a church discriminates, it constitutes private discrimination, with the law of general application not likely to apply.

eNCA reports on the decision.

CORRECTION: SG's Views Sought In Title VII Religious Accommodation Case

The U.S. Supreme Court today asked for the Solicitor General to file a brief in Patterson v. Walgreen Co., (Docket No. 18-349, 3/18/2019). (Order List). In the Title VII case, the 11th Circuit held that Walgreens had offered reasonable accommodation for the religious needs of a Seventh Day Adventist employee whose beliefs did not permit him to work on Saturday. (See prior posting.) A prior posting incorrectly reported that cert. had been denied in the case.

Supreme Court Denies Review In B&B's Refusal To Rent To Lesbian Couple

The U.S. Supreme Court today denied review in Aloha Bed & Breakfast v. Cervelli, (Docket No. 18-451, certiorari denied 3/18/2019). (Order List).  In the case, a Hawaii sate appeals court held that a 3-room bed & breakfast violated the state's public accommodation law when the B&B owner refused on religious grounds to accept a room reservation from a lesbian couple. (See prior posting.) The Hawaii Supreme Court denied review. (See prior posting.)

10th Circuit: Suit Against FLDS Leader Warren Jeff's Lawyers Can Move Ahead

In Bistline v. Parker, (10th Cir., March 14, 2019), the U.S. 10th Circuit Court of Appeals in a 2-1 decision reversing a district court's dismissal of the case, allowed various former members of the polygamous FLDS Church to move ahead with claims against the law firm that represented FLDS Prophet Warren Jeffs.  The court, in its 72-page opinion, summarizes plaintiffs' allegations:

Plaintiffs allege that defendants: (1) directly worked with Mr. Jeffs to create a legal framework that would shield him from the legal ramifications of child rape, forced labor, extortion, and the causing of emotional distress by separating families; (2) created an illusion of legality to bring about plaintiffs’ submission to these abuses and employed various legal instruments and judicial processes to knowingly facilitate the abuse; (3) held themselves out to be the lawyers of each FLDS member individually, thus creating a duty to them to disclose this illegal scheme; and (4) intentionally misused these attorney-client relationships to enable Mr. Jeffs’ dominion and criminal enterprise.

On plaintiffs' legal malpractice claim the majority said the district court should determine whether a lawyer-client relationship existed between defendants and various plaintiffs, saying:

If individuals have been cut off from outside resources because of sincerely held religious beliefs and have been actively and repeatedly deceived as to an attorney’s responsibilities and allegiances towards them personally, it is plausible that they reasonably believed they were individually and collectively represented by that attorney.

The district court had dismissed many of plaintiffs' claims on statute of limitations grounds. The Court of Appeals reversed, saying in part:

[D]efendants were allegedly tortfeasors who actively concealed wrongdoing from plaintiffs who plausibly contend they did not have enough knowledge to support a duty to inquire. Plaintiffs have alleged facts to support their claim that defendants had a direct fiduciary relationship of trust to plaintiffs, which they intentionally exploited to mislead plaintiffs over an extended period of time and arguably up to the time plaintiffs filed this action. The fraudulent concealment doctrine thus may operate to toll the limitations periods for plaintiffs’ claims of legal malpractice, breach of fiduciary duty, and civil conspiracy, making it inappropriate to dismiss these claims at this stage.

The court also allowed certain plaintiffs to move ahead with claims under the Trafficking Victim Protection Reauthorization Act. Judge Briscoe filed a dissenting opinion. Courthouse News Service reports at greater length on the decision.

Certiorari Denied In Historic Touro Synagogue Dispute

The U.S. Supreme Court today denied review in Congregation Jeshuat Israel v. Congregation Shearith Israel, (Docket No. 18-530, certiorari denied 3/18/2019). (Order List.) In the case, the U.S. 1st Circuit Court of Appeals held that Rhode Island's historic Touro Synagogue, and a pair of historic silver Torah ornaments worth some $7 million, are owned by New York's Shearith Israel congregation. (See prior posting and denial of en banc review.) Providence Journal reports on the Supreme Court's denial of certiorari.

Suit Challenging End of School Yoga Program Moves Ahead

AP reports that a Georgia federal district court judge refused Friday to dismiss an Establishment Clause suit against the Cobb County (GA) School District. The suit alleges the school district ended a yoga program and transferred an elementary school assistant principal in response to parents who objected to the yoga program as inconsistent with their Christian religious beliefs.  The suit brought by former Bullard Elementary School assistant principal Bonnie Cole will now move to trial.  AP reports in part:

During the 2014-2015 school year, Cole said she implemented breathing and stretching exercises based on yoga and meditation in classrooms as a way of reducing stress and encouraging relaxation....

According to the lawsuit, upset parents held a 2016 prayer rally for ‘‘Jesus to rid the school of Buddhism.’’

UPDATE: Here is the full text of the opinion and additional pleadings in Cole v. Cobb County School District (ND GA, March 19, 2019).

Recent Articles of Interest

From SSRN:

• Paula A. Franzese & Angels Carmella, Housing and Hope: Property Law and Catholic Social Teachings, (Forthcoming in Christianity and Private Law (Cochran & Moreland, eds.) (Cambridge Press)).
• Thomas Charles Berg, Freedom to Serve: Religious Organizational Freedom, LGBT Rights, and the Common Good , (Religious Freedom, LGBT Rights, and The Prospects for Common Ground (William Eskridge, Jr. and Robin Fretwell Wilson eds., Cambridge University Press 2018)).
• Thomas Charles Berg, Religious Freedom and Nondiscrimination, (50 Loyola University Chicago Law Journal 181 (2018)).
• Lloyd Hitoshi Mayer, When Soft Law Meets Hard Politics: Taming the Wild West of Nonprofit Political Involvement, (45 Journal of Legislation (2019, Forthcoming).
• Brian Bird, The Call in Carter to Interpret Freedom of Conscience, (2018) 85:2 Supreme Court Law Review 107-141.
• Tyler Broker, Church And State Originalism,(University of Memphis Law Review, Forthcoming).
• Lloyd Hitoshi Mayer, The Promises and Perils of Using Big Data to Regulate Nonprofits, (94 Washington Law Review (2019, Forthcoming)).

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

• Azadeh Dastyari, Let the Asylum Seekers Stay: Strengths and Weaknesses of Church Sanctuary as a Strategy for Law Reform, (Monash University Law Review, Forthcoming)).
• Patrick Quirk, The Undefined Remains Unprotected: Tensions Between Conscience and the Law in Germany by Way of Joseph Isensee, (Tulane Journal of International & Comparative Law, Vol. 27, No. 1, 2018).
• Bhavya Gupta, Secularism as an Ideology: A Global and Indian Perspective, (November 16, 2018).

From SSRN (Islamic Law);

• Jeffrey A. Redding,The Pakistan Transgender Persons (Protection of Rights) Act of 2018 and Its Impact on the Law of Gender in Pakistan, (February 22, 2019).
• Nafis Alam, Islamic Finance and Business: Capital, Commerce, & Careers, (Proceedings of Harvard University Muslim Alumni Islamic Finance Conference, 2018).
• Saadiya Suleman, Innocence of Muslims: Blasphemy, Islam and Public Disorder - A Holy Analysis, (ILI Law Review Winter Issue 2018 Vol. II).

From SmartCILP:

• Joshua C. Wilson & Amanda Hollis-Brusky, Higher Law: Can Christian Conservatives Transform Law Through Legal Education?, 52 Law & Society Review 835-870 (2018).

Catholic Student Who Objects To Chicken Pox Vaccination Requirement Sues

ABC News reports on a state court lawsuit filed last week against the Northern Kentucky Health Department by a high school student who has religious objections to receiving the chicken pox vaccine. There have been 32 cases of chicken pox since February at Our Lady of the Sacred Heart Elementary School.  To stop the spread, health officials have, among other things, ordered the related Assumption Academy to bar all students who are not vaccinated or otherwise immune from the disease from participating in extra-curricular activities.  Subsequently health officials ordered the schools to exclude all non-immune students entirely from school until the spread ends, and to end other outside activities until then.  Eighteen year old Jerome Kunkel and his family, who are conservative Catholics, object to the vaccine because it was originally developed in the 1960's using cell lines from two aborted fetuses.

7th Circuit: Parsonage Allowance Exclusion Is Constitutional

In Gaylor v. Mnuchin, (7th Cir., March 15, 2019), the U.S. 7th Circuit Court of Appeals rejected an Establishment Clause challenge to Internal Revenue Code Sec. 107(2) which excludes from taxable income housing allowances paid to members of the clergy. The court noted that the Treasury Department asserted that "the survival of many congregations hangs in the balance." Applying the Lemon test, as well as the historical significance test, the court said part:

§107(2) is simply one of many per se rules that provide a tax exemption to employees with work-related housing requirements.... Congress’s policy choice to ease the administration of the convenience-of-the-employer doctrine by applying a categorical exclusion is a secular purpose, not “motivated wholly by religious considerations.”

....  The government argues Congress passed § 107(2) because providing the tax exemption only to ministers given in-kind housing tended to exclude ministers of smaller or poorer denominations....  [W]e take the government at its word, which resolves this question. “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”

The third secular legislative purpose cited by the Treasury Department is to avoid excessive entanglement with religion. To the government, Congress’s decision to exempt ministers from the proof requirements of § 119(a)(2) prevents the IRS from conducting intrusive inquiries into how religious organizations use their facilities....

[T]he primary effect of § 107(2) is not to advance religion on behalf of the government, but to “allow[] churches to advance religion, which is their very purpose.” ...

FFRF claims § 107(2) renders unto God that which is Caesar’s. But this tax provision falls into the play between the joints of the Free Exercise Clause and the Establishment Clause: neither commanded by the former, nor proscribed by the latter. We conclude § 107(2) is constitutional.

Milwaukee Journal Sentinel reports on the decision.

Terrorist Shootings By White Supremacist In 2 New Zealand Mosques Kill 49

The Sun has details of the mass shootings by a white supremacist at two mosques in New Zealand today which killed 49 and injured 48 others, 20 of them critically. The Guardian and Perth Now describe the killer's rambling 74-page manifesto which he titled The Great Replacement.  The full text of the manifesto is available here.

Recent Prisoner Free Exercise Cases

In Janny v. Gamez, 2019 U.S. Dist. LEXIS 34932 (D CO, March 5, 2019), a Colorado federal district court adopted in part a magistrate's recommendation (2018 U.S. Dist. LEXIS 222320, Sept. 20, 2018) and allowed a parolee who is an atheist to move ahead with objections to the requirement that he stay at a Rescue Mission and take part in its religious activities.

In Kruger v. Lashbrook, 2019 U.S. Dist. LEXIS 36031 (SD IL, March 5, 2019), an Illinois federal district court dismissed an inmate's free exercise claim growing out of the refusal to allow him to receive religious greeting cards that he had ordered. Other religious claims were severed into a new case.

In Knight v. Shults, 2019 U.S. Dist. LEXIS 35791 (SD MS, March 6, 2019), a Mississippi federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 36936, Feb. 11, 2019) and refused to dismiss an inmate's claim under RFRA that he was not provided a requested Nation of Islam Ceremonial Meal.

In Fisherman v. Schaefer, 2019 U.S. Dist. LEXIS 36821 (D MN, March 7, 2019), a Minnesota federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 37752, Jan. 16, 2019) and dismissed an inmate's complaint that he was denied a vegan diet.

In Larry v. Goldsmith, 2019 U.S. Dist. LEXIS 38128 (ED WI, March 11, 2019), a Wisconsin federal district court dismissed a Muslim inmate's complaint about the one-time enforcement of a rule prohibiting praying on the floor between bunks when the dayroom is closed.

In Wilcox v. Erie County Prison, 2019 U.S. Dist. LEXIS 38282 (WD PA, March 11, 2019), a Pennsylvania federal district court dismissed an inmate's complaint that his kosher diet was rescinded as punishment for his eating kosher foods from another inmate's tray.

Rastafarian's Challenge To Marijuana Enforcement Is Rejected

In Lepp v. Yuba County, 2019 U.S. Dist. LEXIS 39855 (ED CA, March 11, 2019), a California federal magistrate judge recommended dismissing plaintiffs' contention that his ability to practice his Rastafarian religion was substantially burdened when state authorities seized his marijuana, and when they failed to promulgate a religious exemption to allow marijuana use.

Recent Prisoner Free Exercise Cases

In Hatton v. Piper, 2019 U.S. Dist. LEXIS 32219 (D MN, Feb. 28,2019), a Minnesota federal district court adopted with modifications a magistrate's report (2019 U.S. Dist. LEXIS 33010, Jan. 23, 2019) and dismissed complaints by civilly committed sex offenders that they were not permitted to attend Native American religious services.

In Long v. Somerset County Jail, 2019 U.S. Dist. LEXIS 33508 (D NJ, March 4, 2019), a New Jersey federal district court dismissed, with leave to amend, a complaint by a Muslim pre-trial detainee that the jail did not permit Friday prayer services, had insufficient accommodations for Ramadan, did not provide prayer rules, kufis or prayer oil, and serve kosher instead of halal meals.

In Burtton v. Kenosha County Jail, 2019 U.S. Dist. LEXIS 33830 (ED WI, March 4, 2019), a Wisconsin federal district court allowed a Jewish inmate to move ahead with his complaint that he was removed from the kosher meal program.

In Heid v. Mohr, 2019 U.S. Dist. LEXIS 33895 (SD OH, March 4, 2019), in a lengthy opinion, an Ohio federal district court in denying a preliminary injunction upheld a prison's prohibiting inmate access to material of the Christian Separatist Church. The judge also denied a motion for recusal.

In Mason v. Ryan, 2019 U.S. Dist. LEXIS 33962 (D AZ, March 4, 2019), in a footnote in an opinion dealing largely with other matters an Arizona federal district court rejected an inmate's complaint that he was denied access to religious programs and services.

In Young v. Rodriguez, 2019 U.S. Dist. LEXIS 34235 (ED CA, March 4, 2019), a California federal magistrate judge refused to grant summary judgment to defendants on a Rastafarian inmate's 1st and 14th Amendment claims growing out of the refusal to allow him to wear his Crown into the prison visitation room.

Cert. Filed In Montana Scholarship Tax Credit Challenge

A petition for certiorari (full text) was filed with the U.S. Supreme Court on March 12 in Espinoza v. Montana Department of Revenue.  In the case the Montana Supreme Court held that Montana's tax credit program for contributions to student scholarship organizations is unconstitutional under Montana Constitution Art. X, Sec, 6 which prohibits state aid to sectarian schools. (See prior posting.)  The petition for review asks the U.S. Supreme Court to decide whether it violates the 1st or 14th Amendments for a state court to invalidate a generally available and religiously neutral student-aid program because the program includes students attending religious schools.  Institute for Justice issued a press release announcing the filing of the cert. petition.

DOD Issues Memo Implementing New Policy on Transgender Service In Military

On March 12, the Department of Defense issued Memorandum (DTM)-19-004 - Military Service by Transgender Persons and Persons with Gender Dysphoria  implementing the military's new policy limiting service in the military by transgender persons.  The new policy is effective April 12, 2019.  While there are special transition provisions for individuals who have enlisted before the effective date of the new policy, for future recruits, the following policy applies:

(1) A history or diagnosis of gender dysphoria is disqualifying unless:

(a) As certified by a licensed mental health provider, the applicant demonstrates 36 consecutive months of stability in the applicant’s biological sex immediately preceding submission of the application without clinically significant distress or impairment in social, occupational, or other important areas of functioning; and

(b) The applicant demonstrates that the applicant has not transitioned to his or her preferred gender and a licensed medical provider has determined that gender transition is not medically necessary to protect the health of the individual; and

(c) The applicant is willing and able to adhere to all applicable standards, including the standards associated with the applicant’s biological sex.

(2) A history of cross-sex hormone therapy or a history of sex reassignment or genital reconstruction surgery is disqualifying.

The DOD has created a special website explaining in clear language and diagrams the new policy. Washington Post reports on the new policy.

Cardinal Pell Sentenced By Australian Court To 6 Years In Prison On Sex Abuse Charges

As previously reported, last December a court in Australia convicted Catholic Cardinal George Pell on five counts of child sexual offenses dating back decades. As reported by CNN, yesterday the 77-year old Cardinal who was a top Vatican advisor was sentenced by the court to six years in prison.

6th Circuit En Banc Upholds Planned Parenthood Funding Cut-Off

In Planned Parenthood of Greater Ohio v. Hodges, (6th Cir., March 12, 2019), the U.S. 6th Circuit Court of Appeals, sitting en banc, by a vote of 11-6 upheld an Ohio law which cuts off state funding for Planned Parenthood. At issue was the cut-off of funding for two Planned Parenthood health centers because they are affiliated with an "entity that performs or promotes nontherapeutic abortions." The majority explained, in part:

As the district court saw it, the Ohio law imposes two unconstitutional conditions on Planned Parenthood. It denies the organization funding if it continues to perform abortions— what the court perceived to be a due process violation. And the law denies the organization funding if it continues to promote abortion—what the court perceived to be a free speech violation. To prevail, Planned Parenthood must show that both limitations—the conduct and speech requirements—violate the U.S. Constitution. Ohio may deny funding to Planned Parenthood in other words if either limitation satisfies the Constitution. Because the conduct component of the Ohio law does not impose an unconstitutional condition in violation of due process, we need not reach the free speech claim.

Judge White's dissent (joined by 5 others) argued:

The majority avoids this straightforward application of the unconstitutional-conditions doctrine primarily by adopting an unprecedented rule that abortion providers—entities that are necessary to ensure a woman’s right to safe abortions—cannot prevail in challenging the Statute. An abortion provider’s constitutional right may be derivative of the patient’s right—but it is a right nonetheless.

Politico reports on the decision. [Thanks to Tom Rutledge for the lead.]

False Light Invasion of Privacy Suit By Pastor Is Dismissed

In Byrd v. DeVeaux, (D MD, March 4, 2019), a Maryland federal district court dismissed on ecclesiastical abstention and ministerial exception grounds a false light invasion of privacy suit brought by Alicia Byrd, a pastor at an African Methodist Episcopal Church. Byrd sought over $14 million in damages for a report issued by the parent AME Church's Ministerial Efficiency Committee saying that she collateralized church property to build a non-profit facility without proper approval and for a letter alleging that she co-mingled church funds.  The court said in part:

Some of the independent  statements Plaintiff relies on are obviously fused with concepts of church law, polity, or doctrine, while others appear secular.... As a whole, the reports and letter constitute a matter of internal church discipline, and the statements contained within the documents are incapable of extrapolation from the overall ecclesiastical nature of the documents. Thus, Plaintiff's false light claim is barred by the ecclesiastical abstention doctrine....

Here, Plaintiff's claim is rooted in the MEC's disciplinary review of Plaintiff and decision that Plaintiff should be placed on administrative leave.... [T]he ministerial exception would apply to Plaintiff's false light claim and would provide an additional reason to grant summary judgment to Defendants.