Buffalo Catholic Diocese Reaches Settlement With New York AG In Suit Over Handling of Sex Abuse Claims

The Catholic Diocese of Buffalo announced yesterday in a press release and a Letter to the Faithful that it has reached a settlement with the New York Attorney General in the suit brought against it and two of its former bishops alleging that they mishandled complaints of sexual abuse of minors and vulnerable adults. (See prior posting.) The provisions of the Stipulated Final Order (full text) in People of the State of New York v. Diocese of Buffalo, (SD NY, Oct. 24, 2022) were described by Bishop Michael Fisher in part as follows:

The settlement that the Diocese and the New York Attorney General have agreed to confirms that the rigorous policies and protocols the Diocese has put in place over the past several years are the right ones to ensure that all young people and other vulnerable persons are safe and never at risk of abuse of any kind by a member of the clergy, diocesan employee, volunteer, or member of a religious order serving in the Diocese of Buffalo.  At the same time, we have strengthened our Safe Environment policies with the Priest Supervision Program which I implemented in June of last year to account for priests removed from active ministry, and with the additional appointment of a new Child Protection Policy Coordinator. We hope that these initiatives, along with our commitment to producing an additional detailed annual compliance audit by an independent auditor, will provide further evidence of our commitment to the level of accountability and transparency that all Catholic faithful and the broader public rightly deserve and require.

Certiorari Filed in Challenge to Arkansas Anti-BDS Law

 A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Arkansas Times, LP v. Waldrip, (Sup. Ct., filed 10/20/2022). In the case, the U.S. 8th Circuit Court of Appeals sitting en banc, in a 9-1 opinion, upheld against a free speech challenge Arkansas' law requiring public contracts to include a certification from the contractor that it will not boycott Israel. (See prior posting.) ACLU issued a press release announcing the filing of the petition for review.

Yeshiva University Creates New LGBTQ Student Group Amid Litigation

Yeshiva University, which is embroiled in litigation over whether it must recognize an LGBTQ student group, YU Pride Alliance, yesterday announced that it has approved a new club for undergraduate LGBTQ students "that presents an approved traditional Orthodox alternative to YU Pride Alliance." Known as Kol Yisrael Areivim Club, the new organization is described by the University:

This newly founded undergraduate student club, which emerges from Yeshiva’s principles and its students’ interest for a club under traditional Orthodox auspices, was approved by the Administration, in partnership with lay leadership, and endorsed by senior Roshei Yeshiva. It also reflects input and perspectives from conversations between Yeshiva’s rabbis, educators, and current and past undergraduate LGBTQ students. The club will provide students with space to grow in their personal journeys, navigating the formidable challenges that they face in living a fully committed, uncompromisingly authentic halachic life within Orthodox communities. Within this association students may gather, share their experiences, host events, and support one another while benefiting from the full resources of the Yeshiva community – all within the framework of Halacha – as all other student clubs.

The University said it also wants to strengthen its support systems for LGBTQ students. 

YU Pride Alliance issued a response to the University's announcement, calling it a "desperate stunt" by the University, saying in part:

The YU sham is not a club as it was not formed by students, is not led by students, and does not have members; rather it is a feeble attempt by YU to continue denying LGBTQ students equal treatment as full members of the YU community.

Both sides say the current litigation will continue. The Forward reports on these developments.

Today Is Diwali; NYC Schools To Recognize It

Today is Diwali, the Hindu Festival of Lights which is also celebrated by some Jains, Sikhs and Buddhists. As reported by CNN, last Thursday New York City Mayor Eric Adams announced that starting next year, Diwali will be a public school holiday in New York City.  In order to keep the same number of school days in the academic year, state legislation has been introduced to allow New York City public schools to no longer celebrate Anniversary Day as a holiday. Anniversary Day (also known as Brooklyn-Queens Day) is variously described as celebrating the opening of the first Protestant Sunday School on Long Island or the founding of the Brooklyn Sunday School Union in 1816.

UPDATE: Here is President Biden's statement sending greetings for a happy Diwali.

State's Removal of 16-Year-Old Transgender Child from Parents' Home Did Not Violate Their Free Exercise Rights

In In re A.C. (Minor Child), (IN App., Oct. 21, 2022), an Indiana state appeals court upheld a trial court's order removing from the home a 16-year old transgender child who suffered from an untreated eating disorder and who was emotionally abused because of their parent's unwillingness to accept their transgender identity. The parents testified that they could not affirm their child's transgender identity or use the child's preferred pronouns because of their religious beliefs.  In rejecting the parents' Free Exercise claims, the court said in part:

[T]he Dispositional Order was based on Child’s medical and psychological needs and not on the Parents’ disagreement with Child’s transgender identity....

Even if the Parents were able to demonstrate that the Dispositional Order imposes a substantial burden on their religious freedom, their claim that Child’s continued removal from the home violates the Free Exercise Clause would fail....  [P]rotecting a child’s health and welfare is well recognized as a compelling interest justifying state action that is contrary to a parent’s religious beliefs.

The court also held that the trial court's order requiring the parents to refrain from discussing Child’s transgender identity during visitation does not violate the parents' free speech rights.

Recent Articles of Interest

From SSRN:

• Jeffrey A. Brauch, Human Germline Editing and a Christian View of Human Nature, (August 25, 2022).
• Ira P. Robbins, The Obsolescence of Blue Laws in the 21st Century, (Stanford Law & Policy Review, Vol. 33, No. 2, 2022).
• Nathan B. Oman, The Development of Modern Latter-day Saint Marriage Rules (July 12, 2022).
• Nathan B. Oman, "Time, Eternity, and Real Estate: Hilton v. Roylance, Mormon Law in Secular Court, and the Opacity of Religion", (July 12, 2022).
• Rebecca Aviel & Wiley Kersh, The Weaponization of Attorney's Fees in an Age of Constitutional Warfare, (Yale Law Journal, Forthcoming).
• Stephen G. Gilles, What Does Dobbs Mean for the Constitutional Right to a Life-or-Health-Preserving Abortion?, (Mississippi Law Journal, Vol. 92, 2022).
• Frank G. Colella, Incorporation by Reference Nixed a Charitable Deduction for Art, (Tax Notes Federal, Vol. 177, No. 1, p. 35 (Oct. 3, 2022)).

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

• Dhruva Gandhi, Religious Discrimination under the Indian Constitution: Unpacking the Contents of Religion, (Indian Journal of Constitutional Law, 2022).
• Laetitia-Ann Greeff, A Critical Analysis of Parental Corporal Punishment: A Call for Legislative Reform, (October 10, 2022).
• Brandon Reece Taylorian, How Do Governments Use Recognition and Registration to Control Religion, (August 18, 2022).
• Latifatul Fajriyyah & Alfitri, Hearsay Evidence Admissibility: Due Process and Evidentiary Rules in Muslim Marriage Legalization (Isbat Nikah), (Fiat Justisia Jurnal Ilmu Hukum 16, no. 3 (2022): 269-296).
• Ioanna Tourkochoriti, The Constitutional Politics of Religion, (Mark Tushnet and Dimitry Kochenov eds., Research Handbook on the Politics of Constitutional Law (Edward Elgar, 2023), Forthcoming).
• Yulia Ioffe & Hedi Viterbo, Homophobia Disguised as Children’s Rights in Russia’s Constitutional Referendum, (VerfBlog, 2020/6/29).
• Imran A. Nyazee, Foundations of Article 62(1)(f) in Islamic Law (Being Sadiq and Ameen), (October 6, 2022).
• Lucas Lixinski, Religious Heritage in International Law: Nationalism, Culture, and Rights,  (64(1) Pravovedenie 138-155 (2020)).

NY Gun Ban at Places of Worship Violates 2nd Amendment

In Hardaway v. Nigrelli, (WD NY, Oct. 20, 2022), a New York federal district court issued a temporary restraining order barring enforcement of the provision in New York law that prohibits possession of firearms at "any place of worship or religious observation." The suit was filed by two clergy who allege that as leaders of their churches they want to carry firearms on church premises to keep the peace. The court concluded that the state restriction violates the Second Amendment, saying in part:

Here, the state cites to a handful of enactments in an attempt to meet its "burden" to demonstrate a tradition of accepted prohibitions of firearms in places of worship or religious observation.... The notion of a "tradition" is the opposite of one-offs, outliers, or novel enactments....

[T]he Nation's history does not countenance such an incursion into the right to keep and bear arms across all places of worship across the state. The right to self-defense is no less important and no less recognized at these places.

Volokh Conspiracy has more on the decision. [Thanks to Steven H. Sholk for the lead.]

Baker With Religious Objections to Same-Sex Marriage Did Not Violate California's Civil Rights Law

In a tentative decision which becomes final in ten days unless objections are filed, a California state trial court has concluded that a bakery which refuses on religious grounds to furnish custom designed cakes for same-sex weddings and instead refers customers to another bakery for such items did not violate the Unruh Civil Rights Act. In Department of Fair Employment and Housing v. Cathy's Creations, Inc., (CA Super. Ct., Oct. 21, 2022), the court concluded that the state failed to prove intentional sexual orientation discrimination, saying in part:

Miller and Tastries do not design and do not offer to any person-- regardless of sexual orientation-- custom wedding cakes that "contradict God's sacrament of marriage between a man and a woman.

The court went on to hold that because California's Unruh Civil Rights Act is a neutral law of general applicability, the state did not violate defendant's free exercise rights. However, application of the Unruh Civil Rights Act here would violate defendants' free speech rights because it would compel expressive conduct based on content or viewpoint. Thomas More Society issued a press release announcing the decision.

Canadian Court Sentences Former Politician on Charge of Antisemitic Hate Speech

Ottawa City News reports on the sentencing by a Saskatchewan trial court of the leader of a now defunct political party for violation of Canada's hate speech law:

The former leader of the Canadian Nationalist Party was handed a one-year sentence Thursday on a hate speech charge after he called for the genocide of Jewish people in a video posted on the party's website and social media accounts.

Travis Patron, who founded the now-defunct party, was convicted of wilfully promoting hate by a jury earlier this month during a trial in Estevan, Sask.

Justice Neil Robertson of Court of King's Bench accepted the Crown's recommendation that the 31-year-old serve one year behind bars.

Indictment Handed Down in 2018 Shooting of Jehovah's Witness Building

The Justice Department announced yesterday that a federal grand jury in Seattle, Washington has indicted Mikey Diamond Starrett, aka Michael Jason Layes, on one count of damaging religious property and one count of using a firearm during a crime of violence. According to the indictment, in May 2018 Starrett used a semi-automatic rifle to damage the Jehovah’s Witnesses Kingdom Hall of Yelm, Washington because of its religious character. He had also previously been charged with possession of an unregistered firearm.  If convicted, he faces a sentence of up to 20 years in prison on the charge of damaging religious property, plus up to ten years on the other charges. Last September, in U.S. v. Layes, (WD WA, Sept. 14, 2021), a federal magistrate judge ordered Starrett to be held in pre-trial detention.

Florida Education Department Adopts Two Rules On LGBTQ Concerns

 As reported by the Washington Blade, the Florida Department of Education on Wednesday by a unanimous vote adopted two rules relating to LGBTQ issues.  New Rule 6A-10.086 (full text) provides in part:

If a school board or charter school governing board has a policy or procedure that allows for separation of bathrooms or locker rooms according to some criteria other than biological sex at birth, the policy or procedure must be posted on the district’s website or charter school’s website, and must be sent by mail to student residences to fully inform parents.

Amendments to Rule 6A-10.081 (full text) provides that Florida teachers:

Shall not intentionally provide classroom instruction to students in kindergarten through grade 3 on sexual orientation or gender identity....

Violation of the rule can lead to suspension or revocation of a teacher's certificate. 

Britain's Inquiry Into Child Sexual Abuse Publishes Its Final Report

In Britain yesterday, the Independent Inquiry into Child Sexual Abuse which was established in 2015 under the Inquiries Act 2005 published its Final Report. (Full text).  The Executive Summary says in part:

This report is the final statutory report published by the Independent Inquiry into Child Sexual Abuse (the Inquiry). In accordance with the Terms of Reference, it sets out the main findings about the extent to which State and non-State institutions failed in their duty of care to protect children from sexual abuse and exploitation and makes recommendations for reform. It draws on the Inquiry’s 15 investigations and 19 related investigation reports, the Interim Report of the Independent Inquiry into Child Sexual Abuse and 41 other Inquiry reports and publications. The Inquiry has made 20 recommendations in this report. These final recommendations complement the 87 recommendations contained in the previously published investigation reports (including six which have been restated).

Among the Inquiry's 15 investigations were ones into the Roman Catholic Church in England and Wales and the Anglican Church.

Profs Sue University for Including Caste in Antidiscrimination Policy

Suit was filed on Monday in a California federal district court by two California State University professors challenging the University's inclusion of discrimination on the basis of caste in its Interim Antidiscrimination Policy adopted in January. The complaint (full text) in Kumar v. Koester, (CD CA, filed 10/17/2022) alleges in part:

[T]he Interim Policy seeks to define the Hindu religion as including “caste” and an alleged oppressive and discriminatory caste system as foundational religious tenets. That not only is an inaccurate depiction of the Hindu religion, but the First Amendment to the United States Constitution prohibits California and CSU from defining the contours of Hinduism (or any religion)....

The Interim Policy also singles out only CSU’s Hindu employees, professors and students, as well as those of Indian/South Asian origin. No other Protected Status in the Interim Policy addresses any specific ethnicity, ancestry, religion or alleged religious practice,,,

Plaintiffs seek a determination that the term “caste” as used in the Interim Policy is unconstitutionally vague, and the Interim Policy as drafted violates the rights of Plaintiffs (and similarly situated individuals) under the First and Fourteenth Amendments to the United States Constitution, as well as their rights under the California Constitution.

The Hindu American Foundation issued a press release announcing the filing of the lawsuit.

Biden Calls For Federal Law Protecting Abortion Rights

In a talk (full text) at a political event at the Howard Theater in Washington, D.C. on Tuesday, President Biden called for a federal law protecting abortion rights.  He said in part:

And I’ve said before: The Court got Roe right nearly 50 years ago, and I believe Congress should codify Roe once and for all....

Right now, we’re short a handful of votes.  If you care about the right to choose, then you got to vote.  That’s why, in these midterm elections, it’s so critical to elect more Democratic senators to the United States Senate and more Democrats to keep control of the House of Representatives....

And, folks, if we do that, here is the promise I make to you and the American people: The first bill that I will send to the Congress will be to codify Roe v. Wade....  And when Congress passes it, I’ll sign it in January, 50 years after Roe was first decided the law of the land.,,,

European Commission Holding Conference on Halal and Kosher Slaughter

Jerusalem Post reports that today in Brussels, the European Commission, in partnership with the Council of Europe, the OSCE and the U.N. Commissioner for Equality, will hold a conference on "Freedom of religion with regard to religious slaughter." According to the European Commission:

The conference will bring together representatives of the European Union (EU) Member States and other national authorities, special envoys and coordinators on combating antisemitism and anti-Muslim hatred, representatives of national Jewish, Muslim and other religious communities, international organizations and independent experts.

European Court OK's Company Rule Neutrally Banning Wearing of All Signs of Religious Belief

 In L.F. v. S.C.R.L., EU EDJ, Oct. 13, 2022), the Court of Justice of the European Communities, in a request from Belgium for a preliminary ruling, held that a private company may prohibit employees from wearing all visible signs of political, philosophical or religious belief in the workplace.  This would not constitute direct discrimination on the ground of religion or belief in violation of Council Directive 2000/78 so long as the company's policy covers any manifestation of religious, philosophical or spiritual beliefs without distinction and treats all employees alike by requiring them in a general and undifferentiated way to dress neutrally. Such a rule might constitute indirect discrimination if it had a disparate impact on persons of one religion, but would not if it were objectively justified by a legitimate aim and the means of achieving that aim were appropriate and necessary. The question arose in the context of a company's refusal to employ a Muslim woman as an intern because she insisted on wearing a hijab. The Court issued a press release announcing the decision. Law & Religion UK also has coverage.

Recent Articles of Interest

From SSRN:

• Hershey H. Friedman, Mesmerizing Narratives of the Talmud: In Which God Laughs, Satan Sulks, Elijah Rebukes, and Jesters go to Heaven, (August 25, 2022).
• Taylor Kordsiemon, A Right to Marital Rape? The Immorality of the Dobbs Approach to Unenumerated Rights, (12 HLRe 90 (2022)).
• Robin Fretwell Wilson, Harm, Not Privilege. Review of: John Adenitire A General Right to Conscientious Exemption: Beyond Religious Privilege (Cambridge University Press, 2020), Keele Law Review, Volume 4 (2022) 13-41.
• Katie R. Eyer, Transgender Equality and Geduldig 2.0, (October 7, 2022).
• Yvonne Lindgren, Dobbs v. Jackson Women's Health and the Post-Roe Landscape, (October 4, 2022).

From SmartCILP:

• Early Arguments and Contemporary Thoughts: A Festschrift Honoring Michael J. Perry, Emory Law Journal, Vol. 71, Issue 7 (2022).
• John Paul Kimes, Scandal and Due Process: A Canonical Response to the McCarrick Case, [Abstract], 36 Notre Dame Journal of Law Ethics & Public Policy 237-264 (2022).

European Court: Suspended Prison Sentence For Protest In Catholic Church Violated Rights Of Abortion Rights Activist

In Bourton v. France, (ECHR, Oct. 13, 2022) (full text of decision in French), the European Court of Human Rights in a Chamber Judgment held that a French court's imposition of a suspended one-month prison sentence on a 39-year feminist activist charged with "sexual exposure" violated her rights of freedom of expression under the European Convention on Human Rights. The French court had also ordered defendant to pay damages and costs totaling 3500 Euros.  According to the English language press release from the European Court:

On 20 December 2013 [Eloise Bouton] staged a protest in the church of La Madeleine in Paris, but not during mass, by standing in front of the high altar while exposing her breasts, revealing slogans daubed across her body, and pretending to carry out an abortion using raw beef liver as a prop. Her performance was brief and she left the church when so requested by the choirmaster. The protest received media coverage, about ten journalists having been present....

The purpose of the applicant’s mise en scène had been to convey, in a symbolic place of worship, a message relating to a public and societal debate on the positioning of the Catholic Church on a woman’s right to free disposal of her body, including the right to have an abortion.

In these circumstances, the [European] Court [of Human Rights] took the view that the applicant’s freedom of expression should have been afforded a sufficient level of protection since the content of her message related to a matter of public interest....

The Court reiterated that the imposition of a prison sentence for an offence in the area of political speech would be compatible with freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, as, for example, in the case of hate speech or incitement to violence....

The Court found that the grounds given by the domestic courts had not been sufficient for it to consider that they had weighed up the interests at stake in an appropriate manner and in accordance with the criteria established in its case-law....

Pakistan Agency Creates Unit To Handle Blasphemy Complaints

The News on Sunday reports that on Oct. 6 Pakistan's Federal Investigation Agency announced that it has created a dedicated unit to deal with complaints of blasphemy on social media. The report says in part:

Sources in the FIA say the Agency has inadequate manpower and that many officials in its Cybercrime Wing are contractual employees. The number of complaints lodged with the Wing under various categories runs into tens of thousands, an official said. A majority of these complaints are pending because the staff is overburdened.

Lawyer Saiful Malook who has defended several people from marginalised segments of the society accused of blasphemy says the notification is discriminatory. “Neither a high court nor the FIA on its own can create a dedicated unit that is discriminatory and relates to religious freedom and persecution,” he says.

DC Circuit Hears Oral Arguments From Sikh Marine Enlistees

On Tuesday, the D.C. Circuit Court of Appeals heard oral arguments in Singh v. Berger. (Audio of full oral arguments.) In the case, the D.C. federal district court refused to grant a preliminary injunction to three Sikh Marine recruits who wanted to prevent enforcement of the Marine's uniform and grooming policies during recruit training while their case continues to be litigated. Sikh religious beliefs require plaintiffs to maintain an unshorn beard and hair, wear a turban and wear other religious items. (See prior posting.) PTI reports on the oral arguments.