Religion Clause

Monday, May 20, 2019

British Divorce Case Poses Catch-22 For Jewish Husband

The Daily Mail reported last week on arguments in Britain's Court of Appeal in a divorce case involving a Jewish couple in which the husband claims that the trial court's order creates problems under Jewish religious law. In order to force the millionaire husband Alan Moher to grant his wife a Jewish bill of divorce, the trial court ordered that he pay maintenance of £1,850 per month until he grants his wife a Get. Moher argues however that a Get is invalid under Jewish law if it is not granted freely, and this means the maintenance order prevents him from providing a valid Get. According to the husband's attorney:

The imposition of a financial sanction on a party, in a bid to force them to grant a Get, invalidates the Get under religious law.

[Thanks to Law & Religion UK for the lead.]

Florida Enacts New School Voucher Program [Corrected]

On May 10, Florida's Governor Ron DeSantis signed Senate Bill 7070 (full text) (legislative history). Among other things, the bill creates a Family Empowerment Scholarship Program which offers school vouchers to students from low-income families. The awards may be used at sectarian as well as non-sectarian private schools. Reporting on the new law, Blog from the Capital points out that the Florida Supreme Court ruled a similar law unconstitutional in 2006.

FLDS Bishop Convicted By Canadian Court In Marriage of His Minor Daughter

In Regina v. Oler, (B.C. Sup. Ct., May 17, 2019), a British Columbia trial court found Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) Bishop James Oler guilty under Canadian Criminal Code §273.3(1)(b) of removing his 15-year old daughter from Canada for purposes of sexual exploitation. As summarized by the court:

The Crown alleges that upon receipt of instructions from Warren Jeffs on June 23, 2004, Mr. Oler facilitated the removal of his daughter C.E.O. from Canada and transported her together with others to Cedar City, Utah, on June 24, 2004, and then to Mesquite, Nevada where C.E.O. was married to James Leroy Johnson on June 25, 2004, by Warren Jeffs in the presence of Mr. Oler. In doing so, Mr. Oler foresaw that upon her marriage, C.E.O. would be the subject of sexual contact which, if it had occurred in Canada, would be prohibited by s. 153 of the Code.

Lethbridge News reports on the case.

Sunday, May 19, 2019

Christian Wedding Services Owner Loses Challenge To Colorado's Public Accommodation Law

303 Creative LLC v. Elenis, (D CO, May 17, 2019), is another in the growing line of cases in which Christian wedding service providers refuse on religious grounds to make their services available for same sex weddings. Here plaintiff Lorie Smith wanted to expand her business to design custom websites for couples planning weddings. However she would not provide her services for same-sex weddings. In the case, a Colorado federal district court rejected a constitutional challenge to the application of the "communications clause" of Colorado's public accommodation law to Lorie Smith's business. That law prohibits publication of any notice or advertisement indicating that services will be withheld on the basis of, among other things, sexual orientation. The court rejected both 1st and 14th Amendment claims.

In their equal protection challenge, plaintiffs argued that the Colorado Civil Rights Commission has applied the law only where business owners disfavor same sex marriages, but not to refusals to produce products with pro-religious messages. The court concluded however that businesses in the other cases were not similarly situated to plaintiff's business.

In rejecting plaintiffs' free speech challenge, the court emphasized that only the clause in the law barring communication of an intent to discriminate was at issue. The court assumed, for purposes of its decision, that the law's "accommodation clause" which is a substantive ban on discrimination is constitutional. This led it to conclude that under Supreme Court precedent:

the government’s ability to regulate unlawful economic activity allows it to prohibit advertisements of this type, even if it must do so by defining the prohibited message based on its content.

The court rejected plaintiffs' Free Exercise challenge, finding that the communications clause is a neutral of general applicability.

Friday, May 17, 2019

Alito Weighs In Late On Buddhist Inmate's Request For His Spiritual Adviser At His Execution

As previously reported, late on March 28, the U.S. Supreme Court In Murphy v. Collier ruled in favor of Buddhist prisoner Patrick Murphy who wanted his Buddhist spiritual adviser to be present in the execution chamber when his execution was carried out. At that time it was indicated that Justices Thomas and Gorsuch voted against granting the stay. This week, on May 13, Justice Alito filed an opinion (full text) dissenting from the grant of the stay. Justices Thomas and Gorsuch joined the opinion.

In the present case, Murphy cannot overcome the presumption against last-minute applications. As I will explain, see Part III, infra, his religious liberty claims are dependent on the resolution of fact-intensive questions that simply cannot be decided without adequate proceedings and findings at the trial level. Those questions cannot be properly resolved in a matter of hours on a woefully deficient record. But that is precisely what Murphy asked of the lower courts and this Court.

Justice Alito did not explain why he was not listed originally as dissenting from the grant of the stay of execution. He merely said in this week's opinion:

I did not agree with the decision of the Court when it was made. Because inexcusably late stay applications present a recurring and important problem and because religious liberty claims like Murphy’s may come before the Court in future cases, I write now to explain why, in my judgment, the Court’s decision in this case was seriously wrong.

Justice Kavanaugh, in an opinion joined by Chief Justice Roberts, responded to Justice Alito, saying in part:

Put simply, this Court’s stay facilitated the prompt resolution of a significant religious equality problem with the State’s execution protocol and should alleviate any future litigation delays or disruptions that otherwise might have occurred as a result of the State’s prior discriminatory policy.

Battle For Control Over Christian Broadcasting and Relief Organization

An Indiana federal district court last week allowed plaintiffs to move ahead with most of their claims in a lawsuit between two cousins in their battle to control of LeSEA, described by the court as:

a Christian non-profit organization based in South Bend, Indiana and with wide-ranging operations. LeSEA was founded by Dr. Lester Frank Sumrall (grandfather of defendant Lester Sumrall) in 1957 and has grown to operate churches, bookstores, a Bible college, a large food and disaster relief operation, as well as a series of television and radio broadcast networks focused on religious programming.

In LeSEA Inc. v. LeSEA Broadcasting Corp., (ND IN, May 10, 2019), the court described the legal issues involved:

The gist of the case involves allegations of a wide ranging attempt to steal trademarks and other intellectual property as well as a host of alleged state law violations sounding mostly in conversion and other intentional torts.

The Indiana Lawyer, reporting on the decision, said in part:

Two “warring cousins” who each claim to be the rightful heir to the South Bend-based LeSEA Christian broadcasting network will continue to slug it out after a federal judge largely denied one cousin’s motion to dismiss.

6th Circuit Orders New Trial Because of Prosecutors' References To Religion

In United States v. Acosta, (6th Cir., May 15, 2019), the U.S. 6th Circuit Court of Appeals granted a new trial to two defendants who had been convicted of drug violations. The vacating of defendants' convictions stemmed in large part from the prosecutor's comments at trial regarding the religious practices of one of the defendants. The prosecutor questioned the defendant about a shrine to Jesus Malverde found in his home. Malverde is a folk saint of drug traffickers. Then, in closing, the prosecutor said to the jury:

Another shocking thing yesterday was the defendant, Mr. Morales’ [sic] testimony. Thou shall not have any Gods before me. I’ve never ever seen a defendant admit to worshiping Malverde. I’m not going to call it a saint, I’m going to use the word and call it a deity. He worships a deity . . . . He prayed for protection from police. He prays that he doesn’t get caught.

... I wonder how many prayers he has said to Malverde before he walked into the courtroom yesterday. I wonder if what’s going through his mind this morning was, I’m going to say another prayer for protection from the jurors of Central Kentucky....

Luis Morales [sic], the worshiper of a deity of a drug trafficking entity who prays for protection from police, prosecutors, court systems and juries. Is he entitled to any credibility for what he said? No, not at all.

Louisville Courier-Journal reports on the decision.

VA Will Remove Unauthorized Religious Additions To Medical Center Display

As previously reported, earlier this month a suit was filed in New Hampshire federal district court against a VA Medical Center challenging a lobby "Missing Man" display that includes a Bible that was carried by a prisoner of war in World War II. Yesterday, according to the New Hampshire Union Leader, a patient at the VA Center added items representing different religious traditions to the display-- books from the Jewish, Muslim, Mormon and Wiccan faiths, and a blank tablet to represent non-faith traditions. The VA is not happy about the additions. A spokesman said:

We will not tolerate interference with and/or alteration of approved displays — such as this Northeast POW/MIA Network-sponsored POW/MIA table — and as a result these items will be removed.

Court Rejects Christian Adoption Agency's Challenge To Anti-Discrimination Regulation

In New Hope Family Services v. Poole, (ND NY, May 16, 2019), a New York federal district court rejected a constitutional challenge by a Christian adoption agency to New York's anti-discrimination provisions. Regulations of New York's Office of Children & Family Services prohibit adoption agencies from discriminating, among other things, on the basis of sexual orientation, gender identity or marital status. New Hope Family Services will not place children with same-sex couples or with unmarried couples. Inquiries from such couples are referred to other agencies. The court rejected New Hope's contention that the regulation violates its free exercise rights because it was adopted to target faith-based agencies. Instead, the court found that the regulation "is facially neutral and generally applicable, and that it has been neutrally and generally applied in this case...." The court also rejected New Hope's free speech and equal protection challenges to New York's regulation. In a press release, ADF said that the decision is likely to be appealed.

Thursday, May 16, 2019

Ontario Court Upholds Requirement That Objecting Doctors Refer Patients to Others

In Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, (Ont. Ct. App., May 15, 2019), the Ontario Court of Appeal rejected a constitutional challenge to two policies of the College of Physicians and Surgeons of Ontario. At issue is the requirement that physicians who object to providing any medical procedure or pharmaceuticals on the basis of religion or conscience must refer the patient to a non-objecting, available and accessible physician, health care professional or agency. Physicians challenging the policies claimed they infringe their freedom of conscience and religion under Sec. 2(a) of the Canadian Charter of Rights and Freedoms by requiring them to be complicit in procedures such as abortion or aid in dying that violate their religious beliefs. In a 74-page opinion, the court held while the policies infringe religious liberty, the infringement is justified under Sec. 1 of the Charter, because they are reasonable limits, demonstrably justified in a free and democratic society. The Globe & Mail reports on the decision.

Burdensome Water Rates On Churches Challenged In Lawsuit

A suit was filed in a Texas state trial court this week challenging a Magnolia, Texas ordinance imposing disproportionately higher water rates on non-profit institutions, including churches. The higher rates were intended to make up for the city's inability under state law to collect property taxes from non-profit institutions. The complaint (full text) in Magnolia Bible Church v. City of Magnolia, (Montgomery Cty. Dist. Ct., filed 5/14/2019), contends that the city's actions violate state law, including the Texas Religious Freedom Restoration Act:

The Institutional Water Rate is void for three independent reasons. First, the Institutional Water Rate is a thinly veiled property tax on a tax-exempt entity, and, as such, it is preempted by state law. Second, even were the Institutional Water Rate not a tax, it would nonetheless be void as a discriminatory, arbitrary utility rate. Finally, by nearly tripling the Churches’ water bills (a substantial burden on free exercise of religion) simply because the Churches do not pay property taxes (an irrational, non-tailored justification), the Institutional Water Rate violates the TRFRA.

First Liberty issued a press release announcing the filing of the lawsuit.

Cert. Filed In Challenge To School's Curriculum On the Muslim World

A petition for certiorari (full text) was filed with the U.S. Supreme Court this week in Wood v. Arnold, (cert. filed 5/13/2019). In the case, the U.S. 4th Circuit Court of Appeals rejected a high school student's Establishment Clause and compelled speech challenges to a classroom unit on The Muslim World. One challenge was to the teacher's Power Point slide which included the statement that most Muslims' faith is stronger than that of the average Christian. The other challenge was to the requirement on a work sheet for the student to fill in two words of the shahada. (See prior posting). Thomas More Law Center issued a press release announcing the filing of the petition for review.

Wednesday, May 15, 2019

Alabama Passes Restrictive Abortion Law; Other States Have Also

The Alabama legislature yesterday gave final passage to House Bill 314 (full text), which criminalizes the performance of abortions at any stage of pregnancy, except in cases of serious health risk to the mother, ectopic pregnancy or lethal anomaly in the unborn child. As reported by CNN, attempts to also include exceptions for rape or incest failed. The Guardian today has an analysis of the growing number of states that are enacting, or attempting to enact, abortion restrictions that go beyond those permitted under current Supreme Court precedent, saying in part:

Anti-abortion campaigners have successfully enacted a ban on all or most abortions in seven Republican-led states: Alabama, Arkansas, Kentucky, Mississippi, North Dakota, Ohio and Georgia.

Alabama’s law, which must be signed by the Republican governor, is the most severe.

At least 61 bills like this have been introduced across the country, in states including Louisiana, Missouri, South Carolina, Tennessee, Maryland, Minnesota, Texas and West Virginia. Even in states considered safe havens for abortion rights, such as New York and Illinois, anti-abortion lawmakers have introduced bills as a kind of protest.

The wave of restrictions is due primarily to the Trump administration’s judicial picks. Anti-abortion campaigners believe the chances of further restricting abortion through court cases are better today than they were a year ago....

Generally, the anti-abortion elements are made up of social conservatives. The Christian right has fought against abortion rights for decades, but some of its most extreme proposals have only recently started to pick up steam. The Christian right is also one of the Trump administration’s most fervent bases of political support.

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.

Abuse Survivors Sue Vatican

Five survivors of clergy sexual abuse filed a lawsuit yesterday in a Minnesota federal district court against the Vatican, seeking damages as well as release of the names of priests accused of child molestation and documents and information relating to the charges. The 77-page complaint (full text) in Keenan v. Holy See, (D MN, filed 5/14/2019) alleges various state causes of action as well as a claim of violation of international human rights law. AP reports on the lawsuit. A video of the press conference held by plaintiffs' lawyers to announce the filing of the lawsuit is also available online.

Court Rejects RFRA Claims By Former Street Gang Members

In People v. Latin Kings Street Gang, 2019 Ill. App. Unpub. LEXIS 852 (IL App., May 13, 2019), an Illinois appellate court rejected claims by former street gang members that the state violated Illinois Religious Freedom Restoration Act by bringing a frivolous lawsuit against them under the Illinois Streetgang Terrorism Omnibus Prevention Act .

The state sought to obtain damages from 79 individuals and enjoin them from further gang activity including meeting with members of the Latin Kings. Defendants contended that they had left the Latin Kings and become born-again Christians who met with current gang members in order to share the Christian Gospel with them. They contend that after the suit was filed, they could no longer go into schools to speak with students about the danger of gangs, nor were they able to preach the Gospel to gang members out of fear of being arrested. The court concluded, however:

... [T]he lawsuit here did not constitute a substantial burden on defendants' religious exercise.... [D]efendants were still able to communicate their faith to Latin Kings gang members after the complaint was filed in this case. Oscar testified that he was not prevented from communicating his faith to Latin Kings in a different county or city. There were times when he wanted to reach out to gang members through Facebook to get together so he could share his faith with them, but felt that he could not do so because of the lawsuit. However, he conceded that no one told him that he could not do so and that he merely considered it an inconvenience. Elias testified how he communicated with gang members via text messages.... He did not state that the lawsuit prevented from engaging in such communication, and the record does not reflect that police were monitoring defendants' cell phones such that they would have discovered, and used against them, such evidence. Further, Ruben testified that he held Bible studies in his home and spoke about his faith at other churches.

Tuesday, May 14, 2019

Settlement Reached In Student Group's Challenge To Denial of Registered Status

A Settlement Agreement (full text) has been reached in Ratio Christi at the University of Colorado, Colorado Springs v. Sharkey, according to a press release today from ADF. The Christian group, Ratio Christi sued last year in a Colorado federal district court challenging the University of Colorado's denial to it of registered status. The University objected to the group's policies requiring its officers to personally hold Christian beliefs, and requiring prospective members to agree with and promote the organization's purposes. (See prior posting.) Under the Settlement Agreement, the University will change its non-discrimination policy to provide:

All student clubs are permitted to require their leadership to promote the purposes of the club, to ascribe to sincerely held beliefs of the club, and/or to act in accordance with club standards.

However student clubs will not be permitted to limit membership on the basis of "race, color, national origin, sex, pregnancy, age, disability, creed, political affiliation or philosophy, religion, sexual orientation, gender identity, gender expression, or veteran status." Ratio Christi will change its constitution to provide:

Students are not required to profess faith in, endorse, or adopt any religious beliefs to become members of the Chapter or participate in its activities. Any efforts to undermine or subvert the purposes enumerated in Article II will be addressed by the Chapter Officers in consultation with the Faculty Advisor and/or Chapter Director.

The University will also make a settlement payment to Ratio Christi of $20,574.

Town Says It Will Keep Crosses On Courthouse

LifeSite News reported yesterday on the latest controversy over crosses on pubic property. Freedom From Religion Foundation has complained to authorities over the four crosses on the courthouse in the small town of Coldspring, Texas. Last week, the County Commissioners Court voted unanimously to keep the crosses after a three-hour public comment period attended two-thirds of the town's 900 population. Now officials are illuminating the crosses at night to support the decision.

Monday, May 13, 2019

Cert. Denied In Christian School Zoning Case

The U.S. Supreme Court today denied review in Tree of Life Christian Schools v. Upper Arlington, Ohio, (Docket No. 18-944, certiorari denied 5/13/2019). (Order List.) In the case, the 6th Circuit in a 2-1 decision held that a private Christian school had failed to establish a prima facie case under the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act. At issue was a zoning prohibition on the operation of schools-- both secular and religious-- in the area zoned as an office and research center district. (See prior posting.)