Religion Clause

Monday, August 10, 2020

8th Circuit Vacates Injunction Against Arkansas Abortion Regulations

In Hopkins v. Jegley, (8th Cir., Aug. 7, 2020), the U.S. 8th Circuit Court of Appeals in a 7-page per curiam opinion vacated an Arkansas federal district court's preliminary injunction against four Arkansas statutory provisions restricting abortions. At issue were 2017 enactments: (1) the Arkansas Unborn Child Protection from Dismemberment Abortion Act; (2) the Sex Discrimination by Abortion Prohibition Act, (3) requirements regarding the disposition of fetal remains, and (4) a requirement to maintain forensic samples from abortions performed on a child. The court remanded the case for consideration in light of Chief Justice Roberts’s separate opinion in June Medical Services v. Russo. The court said in part:

According to Chief Justice Roberts, the appropriate inquiry under Casey is whether the law poses “a substantial obstacle” or “substantial burden, not whether benefits outweighed burdens.”...

Here, the district court—without the benefit of Chief Justice Roberts’s separate opinion in June Medical—applied the Whole Woman’s Health cost-benefit standard to the challenged laws....

In addition, the district court relied on Whole Woman’s Health’s “holding that the ‘statement that legislatures, and not courts, must resolve questions of medical uncertainty is . . . inconsistent with this Court’s case law.’” ... Chief Justice Roberts, however, emphasized the “wide discretion” that courts must afford to legislatures in areas of medical uncertainty.

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

Sunday, August 09, 2020

Weddings In Restaurant Cannot Be Limited More Than Dining

In DiMartile v. Cuomo, (ND NY, Aug. 7, 2020), a New York federal district court preliminarily enjoined enforcement of a COVID-19 50-person limit on weddings when they are held in a restaurant which is allowed to seat more people when operating for dining. The court said in part:

The Court is not persuaded by the State Defendants’ argument that the fact that part of the purpose of a wedding is for the married couple to interact with friends and family is sufficient to justify finding that weddings are practically dissimilar from ordinary dining and thus do not merit to be treated the same as an ordinary dining use of the venue.

Friday, August 07, 2020

2nd Circuit Enjoins Pending Appeal Vermont's Exclusion of Catholic High School Students From Dual Enrollment Program

As previously reported, earlier this year 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 that pays for high schoolers to take college courses. This week, in E.M. v. French, (2d Cir., Aug. 5, 2020), the U.S. 2nd Circuit Court of Appeals in a brief order granted an emergency injunction pending appeal, saying:

In light of the Supreme Court’s recent decision in Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), Appellants have a strong likelihood of success on the merits of their claims.

ADF issued a press release announcing the 2nd Circuit's action.

Catholic Group Threatens Litigation Over BLM Attempts To Remove References To Famous California Priest

One of the historical figures now seen as problematic by the Black Lives Matter Movement is the 18th century Catholic priest Father Junipero Serra, who was canonized in 2015 by Pope Francis during his trip to the United States. As explained by an RNS article earlier this year:

While Serra is credited with spreading the Catholic faith across what is now California, critics say Serra was part of an imperial conquest that beat and enslaved Native Americans.

Serra, who was born in Spain, came to the Americas in 1749, and in 1769 he founded the first of what would become 21 missions along the California coast.

Native Americans brought into the mission to be evangelized were not allowed to leave the grounds. Many labored for no pay. There is evidence of beatings, imprisonment and other abuse at the hands of the missionaries.

In light of this, the city of San Buenaventura last month voted to remove a statue of Serra that stands in front of City Hall. Recently efforts have been made to remove Serra from the city's police badges and the Ventura County seal. The Thomas More Society contends that these moves are anti-Catholic, and this week it sent a demand letter (full text) to the city and county, saying in part:

should Ventura remove Fr. Serra from its Seal, its Police Badges, or any other similar prominent municipal location, we will bring a claim seeking to enjoin such conduct under the Establishment Clause of the U.S. Constitution, and seek our attorneys’ fees. Our firm was lead counsel in defending the Mt. Soledad Cross in San Diego—which proudly still stands today—and we have extensive experience in ensuring that our attorneys’ fees are paid when we prevail. Thank you for considering the below as you take subsequent action during these times of national and local anti-Catholic sentiment....

For California Catholics generally, Fr. Serra is “the Apostle of California,” “the first saint to be canonized on U.S. soil and by the first pope from the Americas.” ... For them, the attacks on Fr. Serra “call[] to mind very similar activities at earlier stages of American history. In the mid to late nineteenth century, anti-Catholicism was rampant in the United States, due in part to prejudices inherited from Protestantism but also due to the arrival of large groups of immigrants from Catholic countries, who were considered inferior.”... For them, “how can [they] not see the ugly specter of anti-Catholicism raising its head” again?

For all Catholics, the only reasonable way to view the attacks on Fr. Serra are as attacks on a psychological mascot, or a “convenient scapegoat and whipping boy,” for those who hate Catholics and who hate that they evangelized native peoples.

Life Site News reports on these developments.

Thursday, August 06, 2020

County Sues Church For Violation of COVID Orders

The county of Ventura, California filed suit in a state trial court yesterday seeking a temporary restraining order and an injunction against a church and its pastor for holding indoor worship services in violation of state and local COVID-19 orders. The complaint (full text) in County of Ventura v. Godspeak Calvary Chapel, (CA Super. Ct., file 8/5/2020), alleges in part:

The wrongful conduct of defendants ..., unless and until enjoined and restrained by the court, will cause and continue to cause great and irreparable injury to the general public ... by creating a significant risk of further community spread of COVID-19, including hospitalizations and deaths, which in turn is likely to result in continued and further restrictions on businesses and other operations and activities within Ventura County, detrimentally affecting the quality of life of the entire community.

Ventura County Star reports on the lawsuit.

Trump Campaign Circumvents Nevada Church Limits By Holding Evangelical Rally At Casino

As previously reported, last month the U.S. Supreme Court refused to grant an injunction pending appeal to a Nevada church challenging the differential treatment of churches and casinos under the Governor's COVID-19 orders. Now according to Microsoft News:

President Trump's campaign is holding an "Evangelicals for Trump" event on Thursday at a Las Vegas hotel and casino, amid a controversial ban in the state on gatherings of more than 50 people in houses of worship while places like casinos are subject to a less stringent 50 percent capacity limit.

The event is scheduled to take place at ... one of the many joint hotels and casinos in Las Vegas. It will feature Trump spiritual adviser Pastor Paula White ... and others. The full event title is "Evangelicals for Trump: Praise, Prayer and Patriotism."

"In a time when many Nevadans can’t go to church because of overreaching restrictions, President Trump’s campaign is bringing together evangelicals from across the community to pray, worship and discuss key issues facing Americans in the November election," Trump 2020 deputy national press secretary Ken Farnaso said in a statement.

Wednesday, August 05, 2020

Suit Says Chicago Schools Program Promoted Hindu Beliefs

Organizations comprised of parents, students and churches this week filed suit in an Illinois federal district court challenging on Establishment Clause and free exercise grounds the "Quiet Time" program that has been implemented in a number of Chicago public schools. the complaint (full text) in Separation of Hinduism From Our Schools v/ Chicago Public Schools, (ND IL, filed 8/3/2020), alleges in part:

3. Although all named Defendants have made statements to the contrary, the “Quiet Time” program is based in Hindu beliefs and the practice of “Transcendental Meditation” is fundamentally religious in nature.

4. Plaintiffs’ rights under the First Amendment were violated when Defendants created environments within public schools where Hindu beliefs and the practice of “Transcendental Meditation” were being endorsed and students were coerced to engage in religious practices against their wills.

Christian News reports on the lawsuit.

Tuesday, August 04, 2020

New York Child Victims Act Filing Window Is Extended

Yesterday New York Governor Andrew Cuomo signed into law S7082 (full text) which extends the window for Child Victims Act lawsuits until August 14, 2021. (Press release). Originally, the window was for a one-year period ending this month. CNA, reporting on the new legislation, says that the change in the law was motivated by concern that the Covid pandemic has deterred many victims from coming forward in time to meet the prior deadline.

Anti-Kapparot Group Renews Attempt To Get NYC Police Enforcement of Health Code

As previously reported, in 2018 New York's highest court refused a writ of mandamus to require enforcement of public health and animal cruelty laws against the Jewish pre-Yom Kippur religious practice of kaporos using live chickens. The court held that mandamus cannot be used to order discretionary enforcement action. Now a motion to renew the request for a mandamus petition has been filed, alleging that the COVID-19 pandemic has revealed new evidence relevant to the claim. In Alliance to End Chickens as Koporos v. New York City Police Department, (NY Ct. Sup. Ct.) a motion and affidavit (full text) filed 7/6/2020, focuses in large part on the animal-to-human spread of COVID-19, saying in part:

99. In light of the health, economic, and financial devastation caused [by] Covid-19, in light of how this pandemic [has] caused our lives to come to a grinding halt, in light of the hundreds of thousands of lives lost worldwide, and in light of the fact that Covid-19 originated from a live animal wet market, we cannot allow our police department to pick and choose what lows to enforce when it comes to the health code. Too much is at stake, which we all so painfully are currently aware of.

JTA reports on these developments. Attorney for plaintiffs issued a press release on the filing.

Monday, August 03, 2020

Attack On Connecticut COVID-19 Orders Rejected

In Murphy v. Lamont, (D CT, Aug. 3, 2020), a Connecticut federal district court rejected a wide-ranging constitutional attack, including 1st Amendment challenges, on the COVID-19 orders of Connecticut Governor Ned Lamont. The court found that plaintiffs lack standing, saying in part:

... Barnes asserts that he is “impeded from attending church.”... However, because no Executive Order prohibits religious worship, Barnes cannot show that the conduct he wishes to engage is “proscribed by statute.” ... Furthermore, Barnes alleges no facts as to his intention to attend religious services or any specific occurrence where he was prevented from doing so.

Murphy also asserts an injury to his religious liberty, along with his freedom of association. He alleges that, “[b]efore the illegal lock down orders, my family participated in a homeschooling group, in which we met in a church. We have not met since this lock down.”... Like Barnes’ allegations, these allegations are too vague to establish an injury-in-fact.

The court also found that plaintiffs were unlikely to succeed on the merits, saying in part:

Executive Order 7TT limits attendance of places of worship to 25% of building capacity or a maximum of 100 attendees, whichever is fewer.... In South Bay United Pentecostal Church, 140 S. Ct. at 1613, the Chief Justice, in his concurrence in the judgment denying a temporary injunction, found that those same restrictions (in California) did not violate the Free Exercise Clause. The court reaches the same conclusion here. The challenged Executive Orders are plainly neutral, and plaintiffs have not proffered any evidence to suggest that the Governor has any animus towards religious organizations. Indeed, more severe restrictions apply to secular gatherings.

Sunday, August 02, 2020

Limits On Street Preacher At Farmers Market Are Upheld

In Denton v. City of El Paso, 2020 U.S. Dist. LEXIS 135896 (WD TX, July 28, 2020), a Texas federal district court rejected free speech, free exercise and other challenges to a policy that prevents plaintiff, a street preacher, from proselytizing at the El Paso Art and Farmers Market. The city bars fundraising, political campaigning or religious proselytizing at the event. It also requires non-profits to distribute information only from designated booth space and bars organizations from approaching or shouting to those passing by.

The court said in part:

[C]onsidering the evidence in the record thus far, Plaintiff has not carried his burden to demonstrate a clear likelihood that the City's policy is content based. Instead, the evidence strongly suggests that the policy is content neutral.

...Because the City seeks to preserve the Market as a space for its visitors to converse with each other and local artisans and enjoy buskers' performances, it has a substantial interest in eliminating disruptive noise....

Moreover, the City also asserts a related economic interest in promoting vendors' ability to sell their wares without "having to shout over someone"...

Saturday, August 01, 2020

Satanic Temple Has Promissory Estoppel Claim After Its Permit To Erect Memorial Was Voided

In The Satanic Temple v. City of Belle Plaine, Minnesota, (D MN, July 31, 2020), a Minnesota federal district court dismissed free exercise, free speech and equal protection claims by the Satanic Temple which objected to the city's Resolution 17-090 which rescinded a prior resolution that created a limited public forum in Veterans Memorial Park. The earlier resolution allowed individuals and organizations to erect and maintain privately owned displays to honor local veterans and veterans' organizations. The Satanic Temple had received a permit to erect a display, and spent substantial amounts for its design and construction, before the rescission. It argues that the rescission came about because of the controversial nature of its display. The court said in part:

[A]lthough TST identifies the core tenants of its religion, TST fails to explain or allege facts that identify any central tenet of its religious beliefs that TST cannot exercise because of Resolution 17-090. Second, TST alleges no facts demonstrating that Resolution 17-090 prevents TST from expressing adherence to its faith. And third, TST fails to allege whether and how any activity that Resolution 17-090 prohibits is fundamental to TST’s religion.

The court however allowed Satanic Temple to move ahead with its promissory estoppel claim, saying in part:

TST sufficiently alleges that Belle Plaine should have reasonably expected that TST would expend time and resources to construct a display after receiving approval and that TST in fact expended such time and resources.

Finally, TST alleges sufficient facts that enforcement of Belle Plaine’s promise may be necessary to avoid injustice.

Friday, July 31, 2020

11th Circuit: Shame To Muslim Family From Assault Allegations Allows Woman To Proceed As Jane Doe

In Doe v. Neversome, (11 Cir., July 30, 2020), the U.S. 11th Circuit Court of Appeals held that that a Florida federal district court abused its discretion when it refused to allow a plaintiff in a sexual assault and battery action against a musical celebrity. The court said in part:

Here Ms. Doe ... asserts that because she is from a “devout Muslim family,” the “very nature of her allegations would be sufficient to bring harm to [herself] and shame to her family under the cultural/religious traditions that her family practices.”... The district court erred by treating Ms. Doe’s motion as merely alleging personal embarrassment, without accounting for what she actually alleged or considering our social stigma cases.

We also note that, under our precedent, the district court may have too easily discounted evidence that Ms. Doe would be subject to threats and harassment if she were required to proceed under her real name.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

American On Trial For Blasphemy In Pakistan Is Assassinated In Courtroom

A press statement from the State Department yesterday reports on the killing of an American citizen, Tahir Naseem, inside a court room in Pakistan where he was on trial for blasphemy:

Mr. Naseem had been lured to Pakistan from his home in Illinois by individuals who then used Pakistan’s blasphemy laws to entrap him. The U.S. Government has been providing consular assistance to Mr. Naseem and his family since his detention in 2018 and has called the attention of senior Pakistani officials to his case to prevent the type of shameful tragedy that eventually occurred.

The State Department called for the reform of Pakistan's blasphemy laws. Radio Free Europe adds details:

It was not clear how the suspect, identified as Khalid Khan, managed to gain access to the courtroom.

He told police the prophet Muhammad had ordered him to kill Nasim because he had belonged to the Ahmadi faith....

According to BBC News:

Mr Naseem was first accused of blasphemy by Awais Malik, a madrassa student from Peshawar. Mr Naseem had struck up an online conversation with him whilst living in the United States.

Mr Malik told the BBC he had then met Mr Naseem in a shopping mall in Peshawar to discuss his views on religion, after which he filed a case against him with the police....

Mr Naseem was born into the persecuted Ahmadi sect, according to a spokesman for the community. But he added that he had left the sect and claimed to be a prophet himself.

The community leader suggested Mr Naseem had been mentally ill - he had uploaded videos to YouTube claiming to be a messiah.

Thursday, July 30, 2020

Canadian Court Says Catholic Archdiocese Is Vicariously Liable For Sexual Abuse At Orphanage

In John Doe v. Roman Catholic Episcopal Corporation of St. John's, (Newfoundland & Labrador Ct. App., July 28, 2020), the Court of Appeal in the Canadian province of Newfoundland, in a 136-page opinion, held that the Catholic Archdiocese is vicariously liable for sexual abuse suffered by the four plaintiffs. Five members of the Christian Brothers abused plaintiffs in the 1950's when they were living at the Mount Cashel Orphanage. The court said in part:

In our view, the total relationship between the Brothers at Mount Cashel and the Archdiocese shows that the Brothers were working on the account of the Archdiocese’s social and religious mandate. Their relationship was sufficiently close, and the connection between the Brothers’ assigned tasks and their wrongdoing was sufficiently close, to justify the imposition of vicarious liability on the Archdiocese. Doing so in the circumstances of this case upholds the policy objectives of the doctrine.

The court held however that the Archdiocese is not liable for a chaplain's failure to act after he learned of the abuse, saying in part:

As Monsignor Ryan was not negligent and did not breach a fiduciary duty, there is no basis upon which the Archdiocese could be liable for his conduct.

Canadian Press reports on the decision.

Ministerial Exception Doctrine Leads To Dismissal of Music Director's Discrimination Suit

In Menard v. Archdiocese of Boston, (MA App., July 29. 2020), a Massachusetts state appellate court held that the ministerial exception doctrine requires dismissal of a sex and age discrimination suit against the the Archdiocese. In the suit, a church's director of music ministries claimed that the church's pastor subjected her to harassment and that she was retaliated against when she notified the Archdiocese. The court said in part:

In this case, Menard's job duties place her squarely within the ministerial exception. As implied by her title, director of music ministries, Menard's role was a substantive one. She selected and played music at all parish events, taught and conducted multiple choirs, trained the church's cantors, and organized the cantors' schedule for Mass. Far more than the rote playing of an instrument, ... Menard's job required her to thoughtfully select the music for each event and train others to perform it.

Wednesday, July 29, 2020

Suit Challenges North Carolina Opportunity Scholarship Program

Suit was filed in a North Carolina state trial court this week challenging North Carolina's Opportunity Scholarship Program. The complaint (full text) in Kelly v. State of North Carolina, (NC Super. Ct., filed 7/27/2020), alleges that as implemented the Program violates various provisions of the North Carolina state Constitution. The complaint says in part:

2. The Program sends millions of taxpayer dollars to private schools without imposing any meaningful educational requirements. As implemented, many of the Program’s funds are directed to schools that divide communities on religious lines, disparage many North Carolinians’ faiths and identities, and coerce families into living under religious dictates.

3. The Program as implemented funds discrimination on the basis of religion. Families’ ability to participate in the Program is limited by their religious beliefs and their willingness to cede control of their faith to a religious school.

4. The Program as implemented funds schools that discriminate against students and parents based on who they love or the gender they know themselves to be, and against those with religious beliefs that do not condemn homosexuality, bisexuality, or gender non-conformity.

NCAE issued a press release announcing the filing of the lawsuit. AP reports on the lawsuit.

Tuesday, July 28, 2020

Hajj Begins Tomorrow-- Scaled Down In Response To Pandemic

The Hajj begins tomorrow in Saudi Arabia, in a scaled down fashion because of the COVID-19 pandemic. AP and Andoula Agency both report on the event which will be limited to between 1,000 and 10,000 participants who are already living in Saudi Arabia. Normally the Hajj attracts 2.5 million pilgrims. According to AP:

This year, pilgrims must wear face masks and will only be able to drink holy water from the Zamzam well in Mecca that has been pre-packaged in plastic bottles. Pebbles for casting away evil that are usually picked up by pilgrims along hajj routes will be sterilized and bagged before being distributed to pilgrims.

Pilgrims are also bringing their own prayer rugs and will be required to pray at a distance from one another, rather than packed shoulder to shoulder.