Religion Clause

Tuesday, June 14, 2022

10th Circuit Affirms Dismissal Of Church's Complaint Regarding Sending Of Material To Inmates

In Colorado Springs Fellowship Church v. Williams, (10th Cir., June 13, 2022), the U.S. 10th Circuit Court of Appeals rejected a church's challenge to prison rules that barred it from sending DVD's directly to inmates. Religious organizations could only send religious materials to the Bureau of Prisons which would them make them available to all inmates. The district court had dismissed the church's Establishment Clause claim. On appeal, the court refused to consider the church's argument that the Turner standard does not apply to free speech and free exercise claims brought by non-prisoners because the church had not made that argument to the district court below. The church had also failed to allege that it was treated differently than other religious groups.

Monday, June 13, 2022

11th Circuit: Jail's Procedure For Passover Participation Is Upheld

In Dorman v. Chaplain's Office BSO, (11th Cir., June 10, 2022), the U.S. 11th Circuit Court of Appeals upheld the procedures used by the Broward County, Florida jail that required inmates to register 45 days in advance in order to participate in Passover services and meals. The court said in part:

First, the 45-day registration requirement did not constitute a substantial burden on Mr. Dorman’s exercise of his Jewish faith under the RLUIPA, and therefore it also did not violate the First Amendment’s more lenient reasonableness standard. Second, the electronic posting of the 45-day registration requirement on the Jail’s computer kiosk, which he and other inmates used to communicate with Jail staff, provided adequate notice of the registration requirement to satisfy due process.

Friday, June 10, 2022

Challenges To New Jersey's Assisted Suicide Act Are Rejected

In Petro v. Platkin, (NJ App., June 10, 2022), a New Jersey state appellate court dismissed constitutional challenges to New Jersey's Medical Aid in Dying for the Terminally Ill Act. It held the plaintiffs-- a terminally ill resident, a physician and a pharmacist-- lack standing because their participation in the procedures permitted by the Act are completely voluntary. The court also rejected claims that the statute violates the "single object" requirement of the state constitution or state constitutional provisions on the right to enjoy and defend life. It also rejected 1st Amendment free exercise claims, finding that the statute is a neutral law of general applicability.

Christian Mission's Suit Over Sex Offender Statute Is Moot

In City Union Mission, Inc. v. Sharp, (8th Cir., June 10, 2022), the U.S. 8th Circuit Court of Appeals affirmed the dismissal of a suit brought by an organization that offers meals, shelter and a Christian Life Program for men seeking help with life skills and addiction. At issue was whether a state statute barring sex offenders from being present or loitering within 500 feet of a children's playground is constitutional. The court held that the statute does not apply to the Mission because it does not allege that its clients are loitering when they are receiving services. Therefore its suit seeking an injunction is moot. Its claim for damages against the former sheriff who enforced the statute were dismissed on qualified immunity grounds. The court said in part:

we can find no “controlling case” or “robust consensus of cases of persuasive authority” that would have notified Sheriff Sharp that Affected Persons had a clearly established right to seek City Union Mission’s services in a building located within 500 feet of a park containing playground equipment.

Judge Kobes filed a concurring opinion.

School Lacks Standing To Sue For Students' and Parents' Distress From Anti-Abortion Pickets

In Nicdao v. Two Rivers Public Charter School, (DC Ct. App., June 9, 2022), the District of Columbia's local Court of Appeals held that a school's suit for intentional infliction of emotional distress should be dismissed for lack of standing. At issue was intrusive protests by three individuals who were opposing the construction of a Planned Parenthood clinic next door to the school. The court held that the school lacked third-party standing to sue on behalf of parents and students who were injured. Financial hurdles making it difficult for the injured parties to sue are insufficient here justify third-party standing. The court also dismissed plaintiff's private nuisance and conspiracy claims. Liberty Counsel issued a press release announcing the decision.

Thursday, June 09, 2022

European Court Says Russia Violated Rights of Jehovah's Witnesses

In a 6-1 Chamber Judgment in Taganrog LRO and Others v. Russia, (ECHR, June 7, 2022), the European Court of Human Rights held that Russia's forced dissolution of Jehovah’s Witnesses religious organizations, banning of Jehovah's Witness religious literature and international website on charges of extremism, banning distribution of their religious magazines, criminal prosecution of individual Jehovah’s Witnesses, and confiscation of their property violate protections for freedom of religion, expression and assembly found in Articles 9, 10 and 11 of the European Convention on Human Rights, as well as other protections. The Court said in part:

152. The first ground for declaring the Taganrog LRO to be an “extremist” organisation was the charge that its texts stoked religious hatred by casting “traditional” Christian denominations in a negative light, undermining respect for their religious figures, urging people to leave those religions, and proclaiming the superiority of the religion of Jehovah’s Witnesses....

153. The Court reiterates that preference for one’s own religion, the perception of it as unique and the only true one or as a “superior explanation of the universe” is a cornerstone of almost any religious system, as is the assessment of the other faiths as “false”, “wrong” or “not conducive to salvation”.... In the absence of expressions that seek to incite or justify violence or hatred based on religious intolerance, any religious entity or individual believers have the right to proclaim and defend their doctrine as the true and superior one and to engage in religious disputes and criticism seeking to prove the truth of one’s own and the falsity of others’ dogmas or beliefs....

154. ... [I]n a pluralist and democratic society, those who exercise their right to freedom of religion ... cannot reasonably expect to be shielded from exposure to ideas that may offend, shock or disturb. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.... Religious people may be genuinely offended by claims that others’ religion is superior to theirs. However, just because a remark may be perceived as offensive or insulting by particular individuals or groups does not mean that it constitutes “hate speech”....

The Court also issued a press release summarizing the lengthy opinion.

Colorado Imposes Reporting Requirements On Health Care Sharing Ministries

Yesterday, Colorado Governor Jared Polis signed House Bill 22-1269 (full text) into law. The law requires health care sharing ministries to file detailed annual reports with the Commissioner of Insurance. Colorado Politics reports on the bill.

Free Exercise Challenge To New Mexico COVID Orders Moves Ahead

McKinley v. Grisham, (D NM, June 7, 2022), involves various challenges to Executive Orders and Public Health Orders issued by New Mexico officials in response to the COVID pandemic. While most of the challenges were dismissed, the court allowed plaintiffs to move ahead with their free exercise challenge to restrictions on in-person gatherings at houses of worship. The court said in part:

Some New Mexico public health orders treated comparable secular activities more favorably than religious exercise. For example, the April 11, 2020, public health order allowed essential businesses 20% occupancy capacity but prohibited mass gatherings in a church, synagogue, mosque or other place of worship....

Taking the allegations as true, it is plausible that the Plaintiffs state a freedom of religion claim. Therefore, whether the public health orders survive strict scrutiny is a factual inquiry that cannot be resolved on this Motion. For the above reasons, Plaintiffs alleged a plausible freedom of religion claim, and this Count cannot be dismissed at this stage.

9th Circuit OK's Refusal To House Muslim Inmate Only With Co-Religionists

In Al Saud v. Days, (9th Cir., June 8, 2022), the U.S. 9th Circuit Court of Appeals rejected claims under RLUIPA and the 1st Amendment brought by a Muslim inmate who sought to be housed only with other Muslim inmates. He contends he is currently unable to pray five times per day as required by his religion because inmates with whom he is now housed harass him when he prays. The court summarized the holding in part as follows:

Al Saud’s RLUIPA claim failed because denying his request to be housed only with Muslims was the least restrictive means of furthering a compelling governmental interest. The panel concluded that the outcome of this case was largely controlled by Walker v. Beard, 789 F.3d 1125 (9th Cir. 2015), which held that a prison could deny a prisoner’s religious accommodation when he sought to be housed with only white people. Because both race and religion are suspect classes, the likelihood that equal protection liability would flow from housing prisoners based on religion was substantially identical to the likelihood of liability for housing prisoners based on race and, therefore, was sufficient to serve as a compelling interest.

Wednesday, June 08, 2022

Universal Life Church Prevails In Pennsylvania Settlement Over Conducting Marriages

In Universal Life Church Monastery Storehouse v. McGeever, (WD PA, June 6, 2022), a Pennsylvania federal district court issued an Order based on a agreed settlement by the parties. The Order bars Allegheny County court personnel from telling members of the public that Universal Life Church ministers cannot solemnize marriages in Pennsylvania. the Order reads in part:

[A] government policy or practice that applies 23 Pa. Cons. Stat. Ann. § 1503 in a manner that denies, discourages, or otherwise chills the religious practice of the Universal Life Church and its ministers by proclaiming that Universal Life Church ministers have no legal authority to solemnize marriages under 23 Pa. Cons. Stat. Ann. §1503(a)(6) would violate the First and Fourteenth Amendments to the United States Constitution by (a) preferring certain religions over others in violation of the Establishment Clause, (b) burdening the Universal Life Church’s and its members’ religious practices in violation of the Free Exercise Clause, and (c) discriminating against the Universal Life Church and its members in violation of the Equal Protection Clause, to the extent the policy or practice treats Universal Life Church ministers less favorably than those similarly situated.

GoSkagit reports on the court order.

10th Circuit: No Interlocutory Appeal Of Ministerial Exception Determination

In Tucker v. Faith Bible Chapel International, (10th Cir., June 7, 2022), the U.S. 10th Circuit Court of Appeals, in a 2-1 decision, held that interlocutory appeals from the denial of a ministerial exception defense are not permitted. The 50-page majority opinion said in part:

the “ministerial exception” is an affirmative defense to employment discrimination claims, rather than a jurisdictional limitation on the authority of courts to hear such claims....

In the case, a former high school teacher and administrator/ chaplain contends that he was fired for opposing alleged racial discrimination by a Christian school.

Judge Bacharach filed a 44-page dissent, saying in part:

The ministerial exception also advances values of a high order, protecting religious bodies from burdensome litigation over religious doctrine and preserving the structural separation of church and state. These values compel courts to resolve application of the ministerial exception at an early stage of the litigation.

EEOC Sues Restaurant For Failing To Accommodate Employee's Church Attendance

The EEOC announced this week that it has filed suit against Del Frisco’s of Georgia, an Atlanta restaurant, for refusing to accommodate an employee's religious beliefs. The EEOC alleges:

[T]he employee requested and was granted an accommodation of not working on Tuesday evenings and Sunday mornings so she could attend prayer and church services. Del Frisco’s scheduled the employee to work on Tuesday, Dec. 31, 2019, in conflict with her existing religious accommodation and her need to attend prayer services that evening. The employee reminded her supervisors of her religious conflict, but she was not taken off the schedule. When the employee did not appear for work on that day, Del Frisco’s fired her.

Tuesday, June 07, 2022

Court Resolves Details Of Last Rites During Inmate's Execution

In Atwood v. Shinn, (D AZ, June 6, 2022), an Arizona federal district court entered a preliminary injunction detailing the manner in which a Greek Orthodox priest could administer last rites to a prisoner before and during the prisoner's execution by lethal injection. The state consented to many of the provisions of the injunction. However the court, relying on RLUIPA as a basis, resolved the remaining areas of disagreement: (1) The inmate may be in a wheelchair rather than a restraint chair so he can fully participate in the tonsure ceremony; (2) the priest may be at the inmate's head during the execution so he can place a priestly stole over his head.

New York Court Reaffirms Its Decision Upholding Required Coverage For Medically Necessary Abortions

In Roman Catholic Diocese of Albany v. Vullo, (NY App., June 2, 2022), a New York intermediate appellate court, in a case on remand from the U.S. Supreme Court, reaffirmed its holding rejecting a challenge by several religious organizations and other plaintiffs to a New York administrative regulation requiring health insurance policies in New York to provide coverage for medically necessary abortion services. (See prior posting) The U.S. Supreme Court had vacated the original judgment and remanded the case for further consideration in light of Fulton v. Philadelphia. (See prior posting.)

NY School Districts Not Required To Provide Bussing For Religious Schools On Days Public Schools Are Closed

In In the Matter of United Jewish Community of Blooming Grove, Inc. v. Washingtonville Central School District, (NY App., June 2, 2022), a New York state appellate court held that under New York statutory law, school districts are not required (but are permitted) to provide bus transportation to non-public school students on days when those schools are in session but public schools are closed. The suit was brought seeking to require the school district to provide transportation to students in Jewish schools in Kiryas Joel on all days when those schools were open.

Monday, June 06, 2022

Certiorari Denied In Wisconsin Parochial School Bussing Case

The U.S. Supreme Court today denied review in St. Augustine School v. Underly, (Docket No. 21-1295, certiorari denied 6/6/2022). (Order List). In the case, the U.S. 7th Circuit Court of Appeals sent back to the district court a suit challenging Wisconsin's refusal to provide bus transportation to students at St. Augustine School. The decision was based on a Wisconsin statute that requires school districts to bus private school students, but limits the obligation to only one private school affiliated with the same religious denomination or sponsoring group in each attendance district. The case has a complicated litigation history. (See prior posting.)

Friday, June 03, 2022

Oversight Report Issued On Philadelphia Archdiocese Compensation Of Abuse Claimants

Yesterday, the Catholic Archdiocese of Philadelphia released the Final Report (full text) of the Oversight Committee monitoring the Archdiocese's Independent Reconciliation and Reparations Program. The Program was designed to to provide compensation and support to victims of childhood sexual abuse committed by clergy of the Archdiocese. The Report says in part:

Of the 623 claims filed, 619 received final determination letters. Three of the 623 claims filed remain "on hold" as a result of ongoing criminal investigations of these claims, and one claim was withdrawn by the Claimant prior to determination.

Of the 619 Claimants who received determination letters, 475 were determined to be eligible for compensation, while 144 were determined to be ineligible.

Of the 475 eligible claims, as of the writing of this report:

438 Claimants (more than 90% of those eligible) have accepted their offers and been paid a combined total of $78,465,000;
one claim was withdrawn after the determination was made;
fifteen claims missed the acceptance deadline....; and
twenty-one offers (totaling $2,040,000) were rejected by the Claimants....

...We also confirmed that the Archdiocese reports all allegations of criminal conduct to law enforcement regardless of when the conduct is alleged to have occurred or the status of the alleged perpetrator. The Archdiocese does not make a determination of an allegation's potential viability for prosecution, but rather leaves that determination to the law enforcement authorities with appropriate jurisdiction over the allegation.

Catholic Philly has additional details. The victim advocacy organization SNAP also issued a press release reacting to the Report.

High School Rules Barring Religious Requirements For Christian Student Organization Leaders Is Upheld

In Fellowship of Christian Athletes v. San Jose Unified School District Board of Education, (ND CA, June 1, 2022), a California federal district court upheld a high school's non-discrimination policy for recognized student groups that precluded Fellowship of Christian Athletes from requiring its leaders to agree with and live in accordance with the group's Christian beliefs. In rejecting challenges to the policy, the court said in part:

[P]olicies meant “to ensure that the school’s resources are open to all interested students without regard to special protected classifications” are similar to the antidiscrimination laws intended to ensure equal access that the Supreme Court has concluded are viewpoint and content neutral.... The fact that the Policy allows clubs to set “non-discriminatory criteria” but not criteria based on religion, sexual orientation, or other protected classifications does not mean the Policy aims at the suppression of speech....

Plaintiffs have not shown that the Policy, as written, clearly violates their right to free exercise of their religion. The District’s Policy applies to all ASB student clubs. It does not “impose special disabilities” on Plaintiffs or other religious groups, but instead affects those groups in ways incidental to the general application of the Policy....