White House Already Planning For Christmas

The White House issued a press release yesterday announcing that planning for the 2019 Christmas season is already under way at the White House.  It invites applications from individuals interested in volunteering to decorate the White House or act as greeters during Holiday Open Houses.  It also invites musicians including high school bands, choirs, and Christmas-themed entertainers to apply to perform during the Holiday Open Houses in December.

Homeless Shelters Excluded From City's Anti-Discrimination Ordinances

In Downtown Soup Kitchen v. Municipality of Anchorage, (D AK, Aug. 9, 2019), an Alaska federal district court issued a preliminary injunction barring enforcement of two of Anchorage's anti-discrimination ordinances against a faith-based homeless shelter for women which admits only individuals who were determined to be female at birth. Thus transgender men may be admitted, but transgender women may not.  The court concluded that homeless shelters are not covered by either the fair housing or public accommodation provisions of the city's code. ADF issued a press release announcing the decision.

Recent Articles of Interest

From SSRN:

• Micah Schwartzman, Must Laws Be Motivated by Public Reason? (Public Reason and Courts (Silje Langvatn, et al. eds., Cambridge University Press, Forthcoming).
• Oana Horhogea, Law and Religion. The Mystical Link, (June 30, 2019).
• Cecile Laborde, Abortion, Marriage and Cognate Problems, (American Journal of Jurisprudence (July 2018)).
• Matthew Segal, America’s Conscience: The Rise of Civil Society Groups Under President Trump, (UCLA Law Review, Vol. 65, No. 6, 2018).
• Charles A. Sullivan, Making Too Much of Too Little?: Why 'Motivating Factor' Liability Did Not Revolutionize Title VII, (August 2, 2019).
• Eric Steven Smith, Exploiting the Charitable Contribution Deduction's Hypersalience, (Utah Law Review, Forthcoming).

From SSRN (Non-US Law):

• Leah Bornstein-Makovetsky, The Welfare of the Minor As a Fundamental Principle Guiding Guardianship and Custody Issues in Ottoman Jewish Society, (Forthcoming, International Journal of the Jurisprudence of the Family).
• Harlan Grant Cohen, The Primitive Lawyer Speaks!: Thoughts on the Concepts of International and Rabbinic Laws, (Villanova Law Review, Forthcoming).
• Avishalom Westreich, Surrogacy and Egg Donation in Israel: Legal Arrangements, Difficulties, and Challenges, (Fundamental Legal Problems of Surrogate Motherhood - Global Perspective (Piotr Mostowik, ed., Warsaw, 2019)).
• Sujit Choudhry, Postcolonial Proportionality: Johar, Transformative Constitutionalism and Same Sex Rights in India, (Philipp Dann, ed., The Global South and Comparative Constitutional Law (Oxford University Press, Forthcoming)).
• Ayesha Umar, Assessing Social Inclusion through Transgender Legal Reforms in Pakistan, (October 7, 2018).
• Erum Sattar, Property Rights for Landless Agricultural Workers and the Flexibility of Hanafi Land Law Jurisprudence: A Solution for Rural Displacement?, (August 1, 2019).

From SmartCILP:

• Michael Arthur Vacca, Education and Religious Freedom in the Toledo Guiding Principles: A Comparative Analysis Between the Holy See and the United States, 36 Arizona Journal of International & Comparative Law 111-132 (2019).
• Daniel Altaras, Separation of Synagogue and State in Israel, 36 Arizona Journal of International & Comparative Law 133-163 (2019).
• James D. Nelson, Corporate Disestablishment, 105 Virginia Law Review 595-654 (2019).
• Samuel W. Calhoun, Inappropriate for Establishment Clause Scrutiny: Reflections on Mary Nobles Hancock's Note. God Save the United States and this Honorable County Board of Commissioners: Lund, Bormuth, and the Fight Over Legislative Prayer, 76 Washington & Lee Law Review 485-508 (2019).

Court Rejects School's Transgender Bathroom Restrictions

In Grimm v. Gloucester County School Board, (ED VA, Aug. 9, 2019). a Virginia federal district court held that a school system violated Title IX and the equal protection clause of the 14th Amendment when it prevented a transgender male student from using rest rooms that correspond with his gender identity. The court rejected the school's argument that its policy is substantially related to protection of student privacy.  The court also issued a permanent injunction requiring the school to update the student's school records to reflect the male gender listed on the student's updated birth certificate. Washington Post reports on the decision.

Hajj Is Underway In Saudi Arabia

As reported by Time, in Saudi Arabia yesterday (Friday, Aug. 9) more than 2 million Muslims gathered at Mecca to begin the Hajj. The Conversation has a detailed explanation of each of the five days' rituals.

7th Circuit Clarifies Application of Ministerial Exception Doctrine

In Sterlinski v. Catholic Bishop of Chicago, (7th Cir., Aug.8, 2019), the U.S. 7th Circuit Court of Appeals in an opinion by Judge Easterbrook held employment discrimination allegations brought by an organist in a Catholic church must be dismissed under the "ministerial exception" doctrine.  In deciding the case, the court clarified the 7th Circuit's approach to determining when the ministerial exception doctrine will apply:

If the Roman Catholic Church believes that organ music is vital to its religious services, and that to advance its faith it needs the ability to select organists, who are we judges to disagree? Only by subjecting religious doctrine to discovery and, if necessary, jury trial, could the judiciary reject a church’s characterization of its own theology and internal organization. Yet it is precisely to avoid such judicial entanglement in, and second-guessing of, religious matters that the Justices established the rule of Hosanna-Tabor....

It is easy to see a potential problem with a completely hands-off approach. Suppose a church insists that everyone on its payroll, down to custodians and school-bus drivers, is a minister. That is not fanciful—it is what one religious group did assert in Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985)....

The answer lies in separating pretextual justifications from honest ones....  Once the defendant raises a justification for an adverse employment action, the plaintiff can attempt to show that it is pretextual. The defense bears the burden of articulating the justification, but the plaintiff bears the burden of showing that the justification is a pretext.

Near the end of his opinion, Judge Easterbrook adds an interesting tangential discussion of the history of music in the Catholic Church:

Even Hieronymus von Colloredo, the Prince-Archbishop of Salzburg who sacked Wolfgang Mozart, understood that music has a vital role in the Roman Catholic faith. After Colloredo decided that the mass, including its music, must not  exceed 45 minutes, Mozart asked for leave to travel. Colloredo refused and fired him.... Colloredo thought that lesser (and less demanding) musicians would suffice; he did not remove music from the mass. In 1782 he abolished instrumental music in church and severely limited accompanied music, but the organ remained. The rest of the world gained from Colloredo’s decisions, as Mozart moved to Vienna and went on to produce secular masterpieces such as the Marriage of Figaro and the Jupiter Symphony, as well as two glorious masses in which the music alone exceeds 45 minutes (the Mass in C minor, K. 427/417a, and the Requiem, K. 626).

3rd Circuit Upholds Cross On County Seal

In one of the first cases to rely on the U.S. Supreme Court's decision in June rejecting an Establishment Clause challenge to the 94-year old Bladensburg Cross, the U.S. 3rd Circuit Court of Appeals yesterday rejected a challenge to a Latin cross on the 75-year old official seal of Lehigh County, Pennsylvania. In Freedom From Religion Foundation, Inc. v. County of Lehigh, (3d Cir., Aug. 8, 2019), the 3rd Circuit said in part:

American Legion confirms that Lemon does not apply to “religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.”... Instead, informed by four considerations, the Court adopted “a strong presumption of constitutionality” for “established, religiously expressive monuments, symbols, and practices.”...

WFMZ News reports on the decision. [Thanks to Tom Rutledge for the lead.]

Seventh Day Adventist Tennis Players Sue Over Tournament Scheduling

Suit was filed this week in a Washington federal district court by two high school tennis players who are Seventh Day Adventists and were precluded from participating in state championship tournaments because matches were scheduled on their Sabbath (Friday night/ Saturday).  The complaint (full text) and motion for preliminary injunction (full text) in J.G.C. v. Washington Interscholastic Activities Association, (WD WA, filed 8/6/2019) allege that plaintiffs' free exercise and equal protection rights were infringed, and that the anti-discrimination provisions of Washington law and the Establishment Clause were violated in two respects.  Plaintiffs object to tournament scheduling that includes Friday evening/ Saturday games. They also object to tournament rules that require players participate in all events, except in case of injury, illness or unforeseen events.  Religious accommodation is not permitted. Becket issued a press release announcing the filing of the lawsuit.

Religious Activist Fined For Burning Library's LGBTQ Children's Books

In Orange City, Iowa yesterday, religious activist Paul Robert Dorr was found guilty of criminal mischief and fined $125 for burning four children's books that he checked out of the public library. As reported by the Des Moines Register, the books had LGBTQ themes. Dorr posted a video to Facebook showing him throwing the books into a burning barrel after he denounced the Orange City library for having the books.

Israel's Election Laws Require Advertising Companies to Sell Space For Objectionable Ads

In Israel yesterday, the Central Elections Committee, the body within the Knesset that enforces election laws, ruled that two major advertising companies in Israel cannot refuse to sell advertising space to Noam-- a far-right religious conservative party known for its opposition to gay rights.  As reported by the Times of Israel, the advertising companies-- which control large amounts of the billboard and bus advertising space-- objected to ads targeting gays and Reform Jews.  The ads read:

[Gay] pride and the buying of children, or having my son marry a woman – Israel chooses to be normal.

Reform [Judaism] or my grandson remains Jewish – Israel chooses to be normal.

Israel's 1959 Election Law (Publicizing Methods) prohibit companies selling election advertising from discriminating between political parties in any way. The Elections Committee's decision was handed down by Supreme Court Justice Neal Hendel.

Suit Charges Mormon Church With Intentional Misrepresentation of Its History

A former member of the Mormon Church filed suit this week in a Utah federal district court accusing the "Mormon Corporate Empire" of fraud, breach of fiduciary duty, RICO violations and intentional infliction of emotional distress. The 75-page complaint (full text) in Gaddy v. Corporation of the President of the
Church of Jesus Christ of Latter-day Saints, (D UT, filed 8/5/2019), asks for certification as a class action and contends:

2. This is not a claim for propagating false religious beliefs as part of the Mormon Church. Rather, it is a claim that the material facts upon which Mormonism is based have been manipulated through intentional concealment, misrepresentation, distortion and or obfuscation by the COP to contrive an inducement to faith in Mormonism’s core beliefs.

3. For almost 200 years, the COP, through its agent leaders, has represented Mormonism to be the restoration of the gospel of Jesus Christ, claiming that the divine authority essential to that gospel (Melchizedek and Aaronic priesthoods) was taken from the Earth after Christ’s crucifixion. It was purportedly restored hundreds of years later to Joseph Smith, Jr....

4. When the true facts are substituted for the longstanding false orthodox narrative, the story that emerges has shocked devoted Mormons who have made life-altering decisions based upon a scheme of lies.

Courthouse News Service reports on the filing of the lawsuit.

Factional Dispute In Church Dismissed

In In re Torres, (TX App., July 30, 2019), a Texas appellate court ordered dismissal of a suit between two factions of a church known as Templo Bautista.  According to the court:

Ramirez and Herrera complain about the removal of a pastor, his replacement by another, the manner in which that was done, whether it complied with the church procedures, the removal of parishioners as church members, and the way Torres and those aligned with him came to govern their church.

The court held that these "are controversies insulated from judicial interference under the neutral principles methodology. Thus, the trial court lacked subject-matter jurisdiction to address or regulate them."

State Has Compelling Interest In Licensing of Medical and Naturopathy Practice

In Jimenez v. Washington State Department of Health, (WA App., Aug. 5, 2019), a Washington state appellate court affirmed a finding by the health department that a marriage and family therapist engaged in the unlicensed practice of medicine and naturopathy. The court rejected Arely Jiminez's claim that the health department violated her free exercise rights protected by the U.S. and Washington state constitutions.  The court said in art:

Here, even assuming that the Department’s actions have infringed on Jimenez’s right to freedom of religion, the Department has a compelling public health and welfare interest in limiting the practice of medicine and naturopathy to individuals licensed by the Department. To the extent that Jimenez’s practice of Medicine without a Washington license burdened her exercise of religion, the Department’s interest in public health and safety justified any infringement of her constitutional rights.

11th Circuit: Board of Immigration Appeals Failed to Consider Evidence of Ahmadi Persecution In Pakistan

In Ali v. U.S. Attorney General, (11th Cir., Aug. 5, 2019), the U.S. 11th Circuit Court of Appeals vacated and remanded for further consideration a decision of the Board of Immigration Appeals (BIA) denying asylum, withholding of removal and Convention Against Torture claims by a Pakistani immigrant who practices Ahmadiyya Islam. The Appeals court concluded that the BIA ignored numerous de jure and de facto elements of harassment and abuse of Ahmadis that might lead to a conclusion of religious persecution.  The court said in part:

[T]he Board wields wide discretion on how to proceed on remand, and we today express no opinion on the merits. We simply hold that the Board’s decision, read alongside the record, considered alongside our religious persecution cases, is so puzzling that we cannot be sure the Board afforded Ali the consideration of his claims that the law requires. 

EEOC Wins Settlement For Jehovah's Witness Employee

In a July 31 press release, the EEOC announced that American Medical Response of Tennessee, Inc., a medical transportation service company, has settled a religious discrimination lawsuit filed against it by the EEOC. The company will pay $40,000 in damages for refusing to continue accommodating a Jehovah's Witness employee's request for Sundays off for worship.  The company also entered a 2-year consent decree requiring it to develop a religious accommodation policy and train its employees regarding Title VII.

European Court Says Russia Violated Rights of LGBT Organizations

Last month, in Zhdanov and Others v. Russia, (ECHR, July 16, 2019), the European Court of Human Rights in a Chamber Judgment held that Russia had violated Article 6 (access to courts), Article 11 (freedom of association) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights in refusing to register three organizations that promote LGBT rights.  Russia had denied registration on various grounds, including the contention that the organizations could destroy the moral values of society, decrease Russian population, jeopardize the institutions of family and marriage, and incite social or religious hatred. The Court issued a press release announcing the decision.

Challenge To Florida Abortion Waiting Period Law Remains In Play

In State of Florida v. Gainesville Woman Care, LLC, (FL App., Aug. 1, 2019), a Florida state appellate court refused to grant summary judgment in a facial challenge to Florida's 24-hour waiting period for abortions. Even though Florida's Supreme Court upheld a temporary injunction against the law's enforcement, the appeals court, in a 2-1 decision, concluded:

Since the temporary injunction phase of this case ... the State has built a case that raises genuine issues of material fact. Among the remaining unresolved issues is the parties’ dispute about the informed consent medical standard of care.

Judge Wolf dissented, saying in part:

Uniquely treating abortions differently from other medical procedures and failing to present evidence that the statute is the least restrictive means to accomplish the purported goals of section 390.0111(3) renders the law unconstitutional. Discouraging people from exercising a constitutionally protected right does not constitute a compelling state interest.

Miami Herald reports on the decision.

Recent Articles of Interest

From SSRN:

• James J. Friedberg, International Law, Settlements and the Two-State Solution, (WVU College of Law Research Paper, No. 2019-021 (2019)).
• Intisar A. Rabb, Conscience Claims in Islamic Law, (Religious Freedom, LGBT Rights, and the Prospects for Common Ground, 2019).
• Chai Feldblum, Religious Liberty and LGBTQI Rights: Finding the Right Balance-- Ruth Bader Ginsburg Lecture, (Thomas Jefferson Law Review, Vol. 41, No. 2, 2019).
• Mattheus Stephens, Connecting the Dots; What Feminists, Lesbians, Gays, and Bisexuals Should Learn From the Transgender and Intersex Communities About Challenging Gender and Sexual Orientation Discrimination, Thomas Jefferson Law Review, Vol. 41, No. 2, 2019.
• Michele Goodwin & Erwin Chemerinsky, The Transgender Military Ban: Preservation of Discrimination Through Transformation, (Northwestern University Law Review, Vol. 114, No. 3, 2019, Forthcoming).
• Michael J. Higdon, While They Waited: Pre- Obergefell Lives and the Law of Nonmarriage, (Yale Law Journal Forum, Vol. 129, p. 1, July 2019).
• Pamuela Halliwell, The Psychological & Emotional Effects of Discrimination Within the LGBTQ, Transgender, & Non-binary Communities, (Thomas Jefferson Law Review, Vol. 41, No. 2, 2019).
• Julie A. Greenberg, Beyond the Binary: Constitutional Challenges to Male/Female Sex Classification Systems, (Thomas Jefferson Law Review, Vol. 41, No. 2, 2019).
• Mark Austin Walters, Jennifer Paterson, Rupert Brown & Liz McDonnell, Hate Crimes Against Trans People: Assessing Emotions, Behaviors and Attitudes Towards Criminal Justice Agencies, (Journal of Interpersonal Violence, 2017).
• Mark Austin Walters & Alex Krasodomski-Jones, Patterns of Hate Crime: Who, What, When and Where?, (Project Report. DEMOS, 2018).
• Intisar A. Rabb, The Curious Case of Bughaybigha, 661–883: Land and Leadership in Early Islamic Societies, (Justice and Leadership in Early Islamic Courts, 2017).
• Ahmed Ahmed Elamer, Collins G. Ntim, Hussein Abdou & Chris Pyke, Sharia Supervisory Boards, Governance Structures and Operational Risk Disclosures: Evidence from Islamic Banks in MENA Countries, (Global Finance Journal, Forthcoming).
• Nafiseh Ghafournia & Patricia L. Easteal, Help-Seeking Experiences of Immigrant Domestic Violence Survivors in Australia: A Snapshot of Muslim Survivors, (Journal of Interpersonal Violence, 2019).

From SmartCILP:

• Bruce N. Cameron & Blaine L. Hutchison, Thinking Slow About Abercombie & Fitch: Straightening Out the Judicial Confusion in the Lower Courts, 46 Pepperdine Law Review 471-510 (2019).
• Barak D. Richman, Religious Freedom Through Market Freedom: The Sherman Act and the Marketplace for Religion, 60 William & Mary Law Review 1523-1543 (2019).

Preliminary Injunction Denied In Challenge To Conscience Provisions In Insurance Law

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, Aug. 2, 2019), a Washington federal district court denied a preliminary injunction against a group of Washington state provisions that plaintiff claims requires it to pay for abortifacient contraceptive coverage for individuals in its health insurance plan. At issue is an Attorney General's Opinion that says the insurance commissioner may require insurance companies to to include the cost of prescription contraceptives in the rate setting actuarial analysis where an employer raises a conscientious objection to paying these costs directly as a part of it benefit package. The court found that plaintiff lacks standing to assert the claim at this point because:

Cedar Park has not provided evidence that insurance costs are in fact calculated or charged in a manner to which it has a religious objection...

The court also dismissed on ripeness grounds, saying that plaintiff "cites no communications from or statements of the State which could form the basis of Cedar Park’s belief that it will be subject to enforcement..." The court however allowed plaintiff to file an amended complaint contending that it is treated less favorably than religious organizations which are health care providers, carriers, and facilities.

Australian Rugby Star Sues Over His Firing For Instagram Post

In April, star Australian Rugby player Israel Folau was fired for breaching the Professional Players' Code of Conduct which requires players to "to treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability". The firing follows Folau's posting on Instagram a banner reading: "Drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolators - Hell awaits you." (Background.) Now, according to BBC News, Folau has filed suit against Rugby Australia seeking $10 million in damages and reinstatement. He alleges that he is the victim of religious discrimination for expressing his Christian religious views.  It is expected that the case will set important precedent for the balance between religious freedom and the interest in banning hate speech in Australia.