Court Rejects Claim of Retaliation Because of Foster Parents' Religious Beliefs

In Lasche v. State of New Jersey, (D NJ, June 4, 2020), a New Jersey federal district court rejected claims by a couple who were formerly foster parents that the state acted unconstitutionally when it removed a foster child from their home and when it suspended their foster care license. Plaintiffs claim that they were retaliated against because of their religious belief that homosexuality is a sin, or because they shared their religious belief with their child. The court found insufficient allegations to support an equal protection claim. As to plaintiffs' 1st Amendment retaliation claim, the court said in part:

there is no legal support for Plaintiffs’ assertion of a First Amendment right to share their religious beliefs with their foster child, who was neither their biological child nor their adoptive child. In fact, finding that foster parents have an unfettered constitutional right to share their religious beliefs with a foster child would seemingly conflict with the free exercise rights of the foster children and his or her biological parents. Accordingly, I do not find that Plaintiffs can assert a First Amendment retaliation claim based on such a theory.

Rejecting the argument that the state's actions were in retaliation merely for their religious beliefs, the court said in part:

Plaintiffs’ allegations present a close-question regarding causality, nonetheless, I find that Plaintiffs have failed to allege facts demonstrating “a pattern of antagonism,” or other circumstantial evidence from which retaliatory or discriminatory motives can be inferred.

Court Upholds Most of NY's Statute Barring Employer Reproductive Health Discrimination; Enjoins Notice Provision

In CompassCare v. Cuomo, (ND NY, June 5, 2020), a church and two pro-life organizations challenged the constitutionality of N.Y Labor Law § 203-e which prohibits employers from discriminating or taking retaliatory action against an employee because of the employee's reproductive decision making or use of any drug, device or medical service. It also requires employee handbooks to give notice to employees of their rights under the statute. According to the court:

Plaintiffs’ complaint, then, is that Labor Law § 203-e will alter their appearance and thus undermine their message. People will know that, even though they proclaim a public commitment to a particular message about religion, sexuality, abortion, and contraception, employees may engage in conduct contrary to their professions of faith....

The court, in a 67-page opinion, rejected plaintiffs' free speech and association claims, saying in part:

The limitations here are not on the speech for which the Plaintiffs contend they associate, but instead threaten to create a situation where hearers might perceive that not all employees ... of the Plaintiffs practiced what they preached. The danger that others be able to call the Plaintiffs hypocrites is not a significant limitation on Plaintiffs’ speech or right to associate. 

The court also rejected plaintiffs' free exercise claims, saying in part:

In the end, the Court cannot find that the evidence presented by the Plaintiffs establishes that the legislature’s purpose was “to challenge the plaintiffs’ religious beliefs” and instead finds that “there was a neutral, secular purpose” for Section 203-e: protecting New Yorkers’ right to make their own decisions about reproduction, including whether to have a child and whether to use birth control....

The court, however, did find that the notice provision amounts to unconstitutional compelled speech and enjoined enforcement of this portion of the law, saying in part:

The notice directed by the statute is language that the Plaintiffs would otherwise not use, and they contend that the prohibitions on discrimination because of “reproductive decision making” undermines their message that the only choices that persons should make on such matters are to carry a child to term, not use birth control, and conduct their sexual lives according to the standards Plaintiffs claim the Bible sets out. While the language in Section 203-e’s notice section does not mention abortion by name, does not suggest to anyone that abortion providers are available, and does not direct anyone to use birth control, the Court finds that the statute compels Defendants to use language they otherwise would not. The notice provision, therefore, is subject to strict scrutiny. No issue of professional speech applies here, which could raise an issue concerning some other level of scrutiny.

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.]

6th Circuit Strikes Down Kentucky Abortion Law

In EMW Women’s Surgical Center v. Friedlander, (6th Cir., June 2, 2020), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held unconstitutional a Kentucky statute that prohibits  dilation and evacuation abortions after 13 weeks of pregnancy unless fetal demise occurs before removal of the fetus from the uterus. The majority, affirming the grant of a permanent injunction, said in part:

Altogether, H.B. 454 imposes substantial burdens on the right to choose. Because none of the fetal-demise procedures proposed by the Secretary provides a feasible workaround to H.B. 454’s restrictions, it effectively prohibits the most common second-trimester abortion method, the D&E. In the balance against these burdens, we weigh the minimal benefits that H.B. 454 provides with respect to the Commonwealth’s asserted interests. These benefits are vastly outweighed by the burdens imposed by H.B. 454. Thus, H.B. 454 unduly burdens the right to choose, in violation of the Fourteenth Amendment.

Judge Bush dissented, arguing in part:

[T]here is a potential conflict of interest between Plaintiffs and their patients: for whatever reason—be it financial, litigation strategy, or otherwise—EMW’s physicians have refused to obtain the necessary training to perform fetal demise, even though uncontroverted studies presented at trial show that many, and perhaps a substantial majority, of women would choose fetal demise before undergoing a D&E procedure.... EMW’s doctors simply do not want to provide fetal demise before a D&E procedure, and their opposition to fetal demise creates a potential conflict of interest that deprives them of standing to bring this facial challenge against H.B. 454.

Courthouse News Service reports on the decision. [Thanks to Scott Mange for the lead.]

Suit Challenges Prof's Radical Interpretation of Islam

This week, a Muslim student at Scottsdale, Arizona Community College filed a lawsuit against the college and a World Politics professor claiming that the faculty member's course contains a module on Islamic terrorism that is based on one-sided, biased perspectives of Islam. The complaint in Sabra v. Maricopa County Community College District, (D AZ, filed 6/2/2020) (full text of complaint and exhibits are at the end of this CAIR press release) alleges that the professor violates the Establishment Clause by teaching that Islam mandates terrorism without telling students that only some extremists believe this. It also claims that the professor violated the free exercise clause by requiring the student to agree to the professor's radical interpretation of Islam in answering a quiz. A law firm was commissioned to conduct an outside review of the College's response to complaints about the professor's actions. The full text of that report is at the end of this article from Fronteras.

3rd Circuit, 2-1, Affirms Dismissal of Church's Challenge To Delaware COVID-19 Limits

In Bullock v. Carney, 2020 U.S. App. LEXIS 17374 (3d Cir., May 30, 2020), a majority of a 3-judge panel in the U.S. 3rd Circuit Court of Appeals upheld a Delaware federal district court's denial of a preliminary injunction to a pastor who objected to the Governor's COVID-19 restrictions on worship services. In a one-sentence order, the court affirmed the district court "substantially for the reasons set forth in the Court's May 29, 2020 Memorandum Opinion."  Judge Phipps filed a dissenting opinion, saying in part:

Reverend Bullock does not bring a free exercise claim in isolation, but rather he also challenges a restriction on a communicative element of that freedom. Specifically, he disputes limitations on gathering size, preaching, baptism, and communion. And in any event, because these restrictions govern churches specifically, they do not act as neutral and generally applicable regulations. Accordingly, to be constitutional, the Governor's order must survive strict scrutiny.

A reasonable probability exists that the Governor's order does not meet that most exacting standard of constitutional scrutiny....  Here, the Governor's order furthers a compelling state interest — preventing the spread of the coronavirus. But ... a reasonable probability exists that the Governor will not be able to demonstrate that the challenged restrictions on churches are narrowly tailored to accomplishing that goal.

Christian Group Challenges England's Liberalization of Abortion Rules In COVID-19 Crisis

On March 30, Britain's Secretary of State for Health and Social Care, as part of the country's COVID-19 restrictions, approved a temporary rule allowing women seeking a non-surgical, medical abortion to take both Mifepristone and Misoprostol at home, following a remote consultation, instead of having to go to a clinic. Christian Concern filed a challenge to the new rule.  After the challenge was rejected, Christian Concern sought to have the High Court of Justice to allow judicial review of the challenges to the new rule. In The Queen v. Secretary of State for Health and Social Care, (High Ct., May __, 2020), a two judge panel, after a May 19 hearing, in a draft opinion refused permission to bring the claim for judicial review. Christian concern is appealing the ruling. Christian Concern has more information on the case. [Thanks to Law & Religion UK for the lead.]

Church's Challenge To St Louis COVID-19 Order Dismissed As Moot

In Church of the Word v. St. Louis County Executive Dr. Sam Page, (ED M, May 31, 2020), a Missouri federal district court dismissed as moot (with leave to amend) a church's challenge to St. Louis County's COVID-19 restrictions on church services. The court said in part:

Plaintiff filed its lawsuit seeking injunctive relief from St. Louis County’s April 20, 2020, Stay-at-Home Order1 two days after that Order had been superseded, and twelve days after the County had enacted the superseding law.

St. Louis Post Dispatch reports that yesterday the court granted plaintiff's motion for a voluntary dismissal.

President Trump Issues Executive Order On International Religious Freedom

Yesterday, President Trump issued an Executive Order on Advancing International Religious Freedom (full text). The Order provides in part:

Within 180 days of the date of this order, the Secretary of State (Secretary) shall, in consultation with the Administrator of the United States Agency for International Development (USAID), develop a plan to prioritize international religious freedom in the planning and implementation of United States foreign policy and in the foreign assistance programs of the Department of State and USAID....

The Secretary and the Secretary of the Treasury shall ... develop recommendations to prioritize the appropriate use of economic tools to advance international religious freedom in countries of particular concern, countries on the Special Watch List, countries in which there are entities of particular concern, and any other countries that have engaged in or tolerated violations of religious freedom as noted in the report required by section 102(b) of the [Religious Freedom Act of 1998].

Deseret, reporting on the Order notes:

The order’s release was timed to coincide with the president’s visit to a shrine honoring Pope John Paul II....

Supreme Court Says Druze Immigrant Can Appeal Factual Findings Under Convention Against Torture

Yesterday the U.S. Supreme Court ruled that factual findings relating to relief under the Convention Against Torture can be appealed from the Board of Immigration Appeals to the federal circuit courts. In Nasrallah v. Barr, (Sup. Ct., June 1, 2020), a member of the Druze religion claimed he would likely be tortured by Hezbollah if he returned to Lebanon. In a 7-2 decision, in an opinion written by Justice Kavanaugh, the Court said in part:

It would be easy enough for Congress to preclude judicial review of factual challenges to CAT orders, just as Congress has precluded judicial review of factual challenges to certain final orders of removal. But Congress has not done so, and it is not the proper role of the courts to rewrite the laws passed by Congress and signed by the President.

Justices Thomas and Gorsuch dissented. The Hill reports on the decision.

Recent Articles of Interest

From SSRN:

• Timothy Alan Campbell, Law’s Religious Awakening: Cincinnati’s Bible War, the Concept of Religious Neutrality, and Its Role Today , (Belmont Law Review, vol. 7, issue 2, pp. 47-85 (2020)).
• Andrew Seidel, Bad History, Bad Opinions: How ‘Law Office History’ Is Leading the Courts Astray on School Board Prayer and the First Amendment, (Northeastern University Law Review, Vol. 12, No. 1, 2020).
• Anita Koirala, Hindu Concept of Law, (April 30, 2020).
• Margaret Ryznar, Extending the Charitable Deduction Beyond the Covid-19 Pandemic, (Tax Notes Federal, Vol. 167, No. 3, pp. 463-464, April 20, 2020).

From SmartCILP:

• Festschrift: In Honor of Arthur J. Jacobson. Preface by Michael Pantazakos; introductory remarks by Richard H. Weisberg; introduction by Melanie Leslie; articles by Arthur J. Jacobson, Tvsi Blanchard, J. David Bleich, Mauro Bussani, George P. Fletcher, Otto Pfersmann, Monroe Price, Uriel Procaccia, Andraa Sajo, Bernhard Schlink, Jeanne L. Schroeder, Suzanne Last Stone, Paul Verkuil. 40 Cardozo Law Review 3047-3320 (2019). (Abstract).

Church's RLUIPA Zoning Claim Rejected

In New Harvest Christian Fellowship v. City of Salinas, (ND CA, May 29, 2020), a California federal district court rejected a church's claim that the City of Salinas, California's zoning code violates its rights under RLUIPA. In order to stimulate pedestrian friendly commercial activity, the zoning code bans clubs, lodges, places of religious assembly, and similar assembly uses on the ground floor of buildings facing three blocks of Main Street. The city refused to grant zoning amendments to allow the church to use a building it purchased for worship services. The court concluded that the zoning restrictions did not violate either the substantial burden or the equal terms provisions of RLUIPA, saying in part:

New Harvest has not presented any evidence to counter the City’s evidence of feasible alternative locations....

New Harvest’s own evidence establishes that [four theaters permitted in the area] ..., unlike New Harvest, offer numerous activities throughout the week that would reasonably be expected to attract the general public, such as first run films, weddings, concerts, comedy shows, and other events. By contrast, New Harvest offers no evidence that its activities actually draw any non-members, and no evidence that its activities have a positive impact on commercial activity or vibrancy within the Main Street restricted area.

Court Refuses To Order Vermont To Extend Dual Enrollment Program To Catholic School

In A.M. v. French, (D VT, May 29, 2020), a Vermont federal district court refused to issue a preliminary injunction to require the state to allow a student enrolled in a Catholic high school to participate in the Dual Enrollment Program (DEP) that pays for high schoolers to take college courses. The court observed that while those administering DEP advised plaintiffs that religious parochial schools are ineligible to participate, this was an inaccurate characterization.  Instead, DEP is open to students enrolled in public schools, in private schools where a district without a public high school pays tuition, or students who are home schooled. In a prior decision, the Vermont Supreme Court held that the program allowing districts without public high schools to pay tuition to private schools violates the Vermont constitution only when the district reimburses tuition for a religious school and does not impose adequate safeguards to prevent the use of the funds for religious worship. In light of this, the federal district court said in part:

The DEP's plain text does not impose classifications or disparate treatment based on religion. Indeed, the statutory scheme does not even mention religion.... [A] home study student receiving a religious education from his or her parents may take religious education classes at a postsecondary institution with a religious affiliation provided the home study student can satisfy the DEP Eligibility Requirements. A publicly funded high school student at an approved independent school with a religious affiliation may do the same....

Because qualified independent religious schools are not categorically excluded from the DEP and face no additional burdens not imposed on secular approved independent schools, the DEP Eligibility Requirements are neutral as applied to religion. Plaintiffs have therefore not demonstrated a violation of their constitutional rights giving rise to irreparable harm.

TRO Denied In Church's Challenge To Delaware COVID-19 Order

In Bullock v. Carney, (D DE, May 29, 2020), a Delaware federal district court refused to issue a temporary restraining order to the pastor of Canaan Baptist Church who objected to Delaware Governor John Carney's COVID-19 restrictions on worship services. The court refused the TRO in part because the governor's restrictions had been liberalized by a May 23 order. Additionally the court said:

... Dr. Bullock's counsel argued that his client would be irreparably harmed as a result of three restrictions imposed by the May 23rd Guidance: (1) the requirement that preachers wear a mask while preaching; (2) the requirement that the pastor ( or anyone else) not hold a person during the course of the person's baptism; and (3) certain requirements that relate to the preparation and distribution of communion.... There is, however, no record evidence to support these assertions, and attorney argument cannot establish a showing of irreparable harm.

The court added:

[M]y decision today has no bearing on the merits of Dr. Bullock's claims. Those claims implicate one of our most treasured rights protected by the Constitution-the right to exercise freely one's religion. And they implicate as well the fundamental right of a state "to protect itself against an epidemic of disease which threatens the safety of its members.".... These important principles make this an important case, and my decision today will afford me the opportunity to give the case the considered reflection it deserves.

Delaware News Journal reports on the decision.

US Supreme Court, 5-4, Refuses To Enjoin California's Limits On Worship Services

On Friday night, by a vote of 5-4, the U.S. Supreme Court refused a church’s request to enjoin application to it of California’s COVID-19 restrictions that limit attendance at religious worship services to 25% of building capacity or 100 attendees.  In South Bay United Pentecostal Church v. Newsom, (US Sup. Ct., May 29, 2020), Justices Ginsburg, Breyer, Kagan, and Sotomayor voted to deny the injunction without writing an opinion. Chief Justice Roberts concurred in denying the injunction, filing a 2-page opinion explaining his vote. He said in part:

Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.

Justice Kavanaugh filed a 3-page dissenting opinion which was joined by Justices Thomas and Gorsuch, saying in part:

The Church and its congregants simply want to be treated equally to comparable secular businesses. California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices. The State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings”…

Justice Alito dissented without filing or joining an opinion.

Earlier in the day, the Court had issued a brief order similarly denying an injunction against Illinois restrictions on worship services, but here because the challenged Illinois restrictions had expired the day before.. Full text of order in Elim Romanian Church v. Pritzker, (US Sup. Ct., May 29, 2020). SCOTUSblog reports on the decisions.

DOJ Sues New Jersey Town Over Anti-Jewish Zoning Ordinances

Last week the Department of Justice filed suit against the Township of Jackson, New Jersey alleging that it has violated RLUIPA by using its zoning ordinances to target the Orthodox Jewish community.  The Township banned schools (including religious schools) in certain zoning districts and banned dormitories throughout the township so that boarding schools cannot operate.  The complaint (full text) in United States v. Township of Jackson, (D NJ, filed 5/20/2020), alleges in part:

The 2017 Ordinances were enacted in response to the growth of the Orthodox community and the complaints Township officials received from residents about the Orthodox community....

Hostility toward the Orthodox community by Township officials and residents in Jackson has continued since the enactments of Ordinances 03-17 and 04-17 to the present time.

The Department of Justice issued a press release announcing the filing of the lawsuit.

Congress Passes Uyghur Human Rights Policy Act

Congress yesterday gave final passage to the Uyghur Human Rights Policy Act of 2020 (full text). The bill now goes to the President for his signature. The bill addresses China's human rights violations targeted at Uyghurs, ethnic Kazakhs, Kyrgyz, and other Muslim minority groups in Xinjiang Uyghur Autonomous Region. It calls on the President and the State Department to take specific actions against China, including designating China as a country of particular concern under the International Religious Freedom Act. The bill also calls for various reports on the topic to be submitted to Congress and the imposition of sanctions on foreigners responsible for these human rights violations.

Italian Court Upholds Lease Of Historic Abbey to Conservative Catholic Group With American Ties

The Art Newspaper reports that in Italy in a decision published Monday, a 3-judge administrative court rejected an attempt by the Ministry of Culture to revoke a 19-year lease granted to a conservative Catholic organization, Dignitatis Humanae Institute (DHI), for an elaborate 13th century abbey. According to the report:

The lease was awarded as part of an initiative to involve the private sector in the management of abandoned cultural sites in Italy.

The judges concluded that the ministry had failed to act within the prescribed time limit for the annulment of public contracts. The verdict is an embarrassing defeat for the Italian ministry of culture which had argued that the time limit should not apply because the DHI made “false and mendacious” statements in its application for the lease, an allegation which the administrative judges say the ministry failed to provide evidence for.

DHI says that the case against it is politically motivated. DHI is funded by Donald Trump's controversial former chief strategist Steve Bannon. After the decision was released, Italy's Attorney General's Office said it would begin a criminal investigation of  DHI’s founder, Benjamin Harnwell. And the Ministry of Culture says it will appeal the administrative court's decision.

Family of 12 Challenges Virginia Restrictions On Worship Services Of Over Ten Persons

Suit was filed last week in a Virginia federal district court by a Catholic family of 12 challenging the provisions in Virginia Governor Ralph Northam's COVID-19 order that bars worship services with more than ten people. (The state is loosening these requirements in its reopening plan.) The complaint (full text) in Diaz-Bonilla v. Northam, (ED VA, filed 5/22/2020), alleges in part:

As a result of the Orders, the Diaz-Bonilla family is able to take their entire family of 12 to: restaurants to order food; any number of retail stores (such as Walmart and Target) that sell food or pharmaceuticals among a vast array of other items; electronics retailers; home improvement stores; lawn and equipment retailers, gas stations or convenience stores; pet stores;office supply stores; laundromats and dry cleaners; or even beer, wine, and liquor stores, if those businesses, deemed essential by the Governor’s order, adhere to certain social distancing requirements.

...However, under the Orders, the Diaz-Bonilla family cannot go to church or even invite a priest or fellow parishioner to their own home for religious purposes, no matter how strictly the family engages in social distancing and sanitization practices.

LifeSite News reports on the lawsuit.

Settlement In Suit Against Georgia City By Anti-Gay Preacher

In Georgia, the Athens-Clarke County Commission has agreed to pay $25,000 in settlement of a lawsuit brought by an anti-LGBT street preacher who was escorted out of the 2019 Athens Pride Festival by police officers. City Dope reported  yesterday on the settlement.  Preacher Adam Bishop was evicted from the festival when he shouted anti-gay rhetoric through a megaphone. The settlement of  Bishop's free exercise and free speech claims also includes a commitment to train police officers on how to treat expressive activity.