Friday, December 14, 2018

NY Catholic Schools Say They Will Ignore New State Review System

As previously reported,  last month the New York State Education Department issued guidelines for Substantial Equivalency Review of the curriculum of non-public religious and independent schools.  According to the Albany Times Union earlier this week:
In a major rebuke to the state, leaders of New York's more than 500 Catholic schools say they will boycott a proposed new review system in which local public school officials are supposed to inspect the parochial schools and determine whether they offer a “substantially equivalent” education.
“The parents who choose our schools can have great confidence in the academic rigor of our schools,” said James Cultrara, executive secretary of the state Council of Catholic School Superintendents.
But, he added, “We simply cannot accept a competing school having authority over whether our schools can operate.”
Earlier, some Hasidic Jewish yeshivas had expressed defiance of the new rules. (See prior posting.) [Thanks to Steven H. Sholk for the lead].

Thursday, December 13, 2018

Mosque Survives Motion To Dismiss Its RLUIPA and Constitutional Claims

In Garden State Islamic Center v. City of Vineland, (D NJ, Dec. 12, 2018), a New Jersey federal district court refused to dismiss a mosque's challenge to the denial of a final certificate of occupancy. The denial stems from the city's claim that the mosque is in violation of its septic system permit.  As summarized by the court:
GSIC claims that the Defendants’ actions are discriminatory in nature and are intended to prevent the GSIC from permanently opening and operating its house of worship/ religious education building through the discriminatory application of land use regulations, in violation of the Religious Land Use and Institutionalized Persons Act ... and the Constitutions of the United States and New Jersey. Plaintiff alleges that the City continually changed the requirements for the septic system, which they previously approved, for discriminatory purposes.
The septic tank issue was merely the latest in a series of procedural hurdles encountered by the mosque. The court concluded that "the sewage permit issue is a zoning law subject to RLUIPA." The court also refused to dismiss plaintiff's 1st and 14th Amendment claims and related New Jersey constitutional claims.

Montana Supreme Court Invalidates Tuition Tax Credit Program

In Espinoza v. Montana Department of Revenue, (MT Sup. Ct., Dec. 12, 2018), the Montana Supreme Court in a 5-2 decision held that Montana's tax credit program for contributions to student scholarship organizations is unconstitutional under Montana Constitution Art. X, Sec, 6 which prohibits state aid to sectarian schools. The majority said in part:
Montana’s no-aid provision is unique from other states’ no-aid provisions. Article X, Section 6’s prohibition of “any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any . . . school . . . controlled in whole or in part by any church” make it a broader and stronger prohibition against aid to sectarian schools than other states. Even other states whose no-aid provisions also contain “indirect” language only prohibit aid in the form of the direct or indirect taking of money from the public treasury....  Such language is distinct from and less stringent than Montana’s prohibition on any type of aid, whether it be a “direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property.” Mont. Const. art. X, § 6(1). 
The majority also held that the Department of Revenue's attempt to cure the program's unconstitutionality by Rule was invalid because the Department exceeded its rule making authority. The court left the student scholarship organization provisions in force, but without the accompanying tax credit for contributions.

Justice Gustafson filed a concurring opinion concluding that the tax credit program also violates the federal Free Exercise and Establishment clauses. Justice Sandefur joined this concurring opinion and also filed a separate concurrence.

Justice Baker, joined by Justice Rice dissented saying in part:
The creation of the credit is a government’s determination not to collect tax revenues. The statute diverts the funds before they ever become public monies. This well may result in an indirect impact on the “public fund or monies,” but it is not an indirect payment,,,,
The Court today holds that a tax credit—granted to a private individual for a donation that may or may not be directed to a religious entity—violates the State Constitution, even though it is clear under the law that a direct tax exemption by the State to a church does not.
Justice Rice also filed a separate dissent. The Missoulian reports on the decision,

Wednesday, December 12, 2018

Another Court Enjoins Enforcement of Contraceptive Mandate Against Religious Non-Profits

In yet another case, after the Trump Administration has taken the position that the Obama era contraceptive coverage mandate under the Affordable Care Act violates the religious freedom rights of objecting religious non-profits, a court has enjoined enforcement of the mandate.  In Association of Christian Schools International v. Azar, (D CO, Dec. 10, 2018), a Colorado federal district court held that the mandate violates plaintiffs' rights under RFRA. The Hill reports on the decision. The Trump Administration's new rules exempt objecting religious non-profits.

Suit Challenges School District's Anti-Bias Training

The Santa Barbara Independent today reports on a federal lawsuit filed by a group calling itself Fair Education Santa Barbara challenging the Santa Barbara schools anti-bias training for teachers and administrators.  It seeks cancellation of a contract with Just Communities Central Coast that provides the training.  Among other things, the lawsuit contends in part:
Under the guise of promoting so-called ‘unconscious bias’ and ‘inclusivity’ instruction, (Just Communities’) actual curriculum and practices are overtly and intentionally anti-Caucasian, anti-male, and anti-Christian.
The suit claims that the curriculum violates the Equal Protection clause and other civil rights protections by discriminating against white people.

Suit Says Police Chief Forced Religion On Officers

The Advocate reports on a federal court lawsuit filed last week against the Port Allen, Louisiana Police Department::
A second former Port Allen police officer has filed a lawsuit alleging Police Chief Esdron Brown consistently forced his religion on his officer corps through mandatory meetings, and further claimed the chief used God's will as reasoning for unjust promotions.
Robert Cannon Jr.,... , filed a federal civil rights case ... alleging the chief's repeated mention of religion and religious-focused meetings created a hostile work environment.

Evangelists Win Narrow Settlement Victory In Alaska Park Dispute

According to KTUU News, a father-daughter evangelist team have won a narrow victory in the settlement of their lawsuit against the city of Girdwood, Alaska.  They sued challenging the city's "No dogs, no politics, no religious orders" requirement at Girdwood's annual Forest Fair. (See prior posting.) Under the settlement, the city will allow the evangelists to distribute leaflets in the park that is used by Forest Fair. However whether they will be able to proselytize at Forest Fiar itself next year will be up to the Fair's promoters.  A city attorney said that control of the park during events like the Fair in in the hands of the organization that has received a permit to stage the event.

Chinese Police Detain Prominent Pastor and Some Members of Unregistered Church

The New York Times reported earlier this week that on Sunday Chinese police detained Wang Yi, one of China's most prominent Protestant pastors.  His Early Rain Covenant Church, with its over 500 members, is one of many churches that are not registered with the government. These independent Protestant churches that have not complied with the registration laws are one of the fastest growing religious movements in China, claiming some 30 million adherents. More than 100 members of Early Rain were also detained, though a number were released by Monday with some of those then being placed under house arrest.

Hasidic Jews Sue Town Over Zoning Barriers

Suit was filed this week in a New York federal district court against the village of Airmont for its actions in attempting to prevent expansion of its Hasidic Jewish community.  The complaint (full text) in Congregation of Ridnik v. Village of Airmont, (SD NY, filed 12/10/2018), alleges in part:
For Hasidic Jews living in Airmont, seeking the Village’s approval for religious gatherings places applicants in a process reminiscent of the curse of Tantalus. At great expense, applicants prepare elaborate plans in order to obtain approval, which the Village uniformly declines to provide. Instead, the Village dangles promises that the applications will be approved in the future if certain modifications are made, only to then yank any hope of approval away even after the applicants make the requested modifications. Instead of providing an approval or denial, the Village requires applicants to satisfy new conditions, often citing purported problems with the applicants’ plans on which Airmont officials had already signed-off.

Tuesday, December 11, 2018

Injunction Denied Against Picketing Ordinance

In O'Connell v. City of New Bern, North Carolina, (ED NC, Dec. 10, 2018), a North Carolina federal district court refused to grant a preliminary injunction to block enforcement of the city's ordinance that regulates picketing.  Plaintiff wanted to share his religious, social and political message near MumFest, but was prevented from handing out literature and carrying a cross.

$4M Award Against Jehovah's Witnesses Upheld

In J.W. v, Watchtower Bible and Tract Society of New York, Inc., (CA App,, Dec. 10, 2018), a California state appellate court upheld an award of over $4 million to a girl who, when she was ten years old, was sexually abused by an elder of the Jehovah's Witness church.  The church was charged, among other things, with negligent supervision and failure to warn. The award came after a court struck defendant's answer as a sanction for failing to comply with discovery orders.

Monday, December 10, 2018

Supreme Court Denies Review In Attempted Cutoff of Medicaid Funds To Planned Parenthood

Over the dissent of Justices Thomas, Alito and Gorsuch, the U.S. Supreme Court today denied certiorari in Gee v. Planned Parenthood of Gulf Coast, Inc., (cert. denied, 12/10/2018). (Order list with dissenting opinion by Thomas, J.)  In the case, the 5th Circuit in a 2-1 decision (full text) upheld the district court's preliminary injunction against the state of Louisiana's termination of Medicaid contracts with Planned Parenthood. At issue in the case is whether Medicaid recipients have a private right of action to challenge the state's action, (SCOTUSblog case page).

Recent Articles of Interest

From SSRN:

Today Is 70th Anniversary of Universal Declaration of Human Rights

Today is the 70th Anniversary of the United Nations adoption of the Universal Declaration of Human Rights. Article 18 of the Declaration guarantees religious freedom:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Sunday, December 09, 2018

Recent Prisoner Free Exercise Cases

In Roberts v. Perry, 2018 U.S. Dist. LEXIS 204091 (WD NC, Dec. 3, 2018), a North Carolina federal district court allowed an inmate to proceed on his claims that he was denied access to the courts as to his White Supremacist security risk group designation and confiscation of his religious publications without due process.

In Richardson v. Gleason, 2018 U.S. Dist. LEXIS 205417 (ND NY, Dec. 4, 2018), a New York federal district court ordered dismissal, unless an amended complaint is filed, of a Jewish inmate's complaint that defendants failed to provide Kosher food, religious services, or religious material.

In Yah'Torah v. Hicks, 2018 U.S. Dist. LEXIS 205798 (D NJ, Dec. 4, 2018), a New Jersey federal district court allowed a Jewish inmatge to move ahead with his complaint that he was denied the regular use of fragrant oils for prayer.

Leading Hasidic Rabbi Defies New York Regulations On Yeshiva Curriculum

As previously reported, last month the New York State Education Department issued new guidelines for review of the curriculum of non-public religious and independent schools, under statutory provisions that primarily impact Hasidic Jewish yeshivas. The Forward reported last week that a leading Hasidic rabbi, Satmar Rebbe Aron Teitelbaum, is defying the New York City and New York State Education Departments, telling his followers in a speech:
We will not comply and we will not follow the state education commissioner under any circumstances. These are our words for the state education commissioner.

Religious Adoption Agency Sues Over Nondiscriminaton Rule

A suit was filed this week in New York federal district court challenging a New York regulation that (Title 18 NYCCR Sec.421.3) that adoption agencies may not discriminate against applicants for adoption services on various grounds, including sexual orientation, gender identity and marital status.  New Hope Family Services, a faith based adoption agency, refuses to recommend or place children with unmarried couples or same-sex couples.  The complaint (full text) in New Hope Family Services, Inc. v. Poole, (ND NY, filed 12/6/2018) contends that this regulation violates the agency's free exercise, free expression and equal protection rights. ADF issued a press release announcing the filing of the lawsuit.

Friday, December 07, 2018

Suit Charges Mormon Church With Dominating Utah In Change To Marijuana Initiative

A lawsuit was filed Wednesday in a Utah state trial court challenging the Utah legislature's enactment of H.B. 3001 which weakens a medical marijuana initiative passed by Utah voters last month. According to an AP report, the new law, among other things, bans a number of marijuana edibles; bars people from growing their own marijuana if they live far from a dispensary; and narrows the list of eligible medical conditions for which the drug can be used. The original Initiative was opposed by the Mormon Church, and H.B.. 3001 reflects a compromise designed to prevent the legislature from completely repealing the Initiative measure. The complaint (full text) in Epilepsy Association of Utah v. Herbert, (UT Dist. Ct., filed 12/5/2018), alleges in part:
This is an action for declaratory and injunctive relief arising from, first, the unconstitutional violation by the Utah Legislature of the constitutional right of the People to directly pass legislation through the initiative process under Article VI, Section 1 of the Utah Constitution and, second, the unconstitutional domination of the State, and interference with the State’s functions, by The Church of Jesus Christ of Latter-day Saints (“the Church”), in violation of Article I, Section 4 of the Utah Constitution.
Art. I, Sec. 4 of the state constitution provides: "There shall be no union
of Church and State, nor shall any church dominate the State or interfere with its functions."

Christian Activist Charged After Video Of Book Burning

KCRG TV9 News reports that an Orange City, Iowa Christian activist has been charged with misdemeanor 5th Degree Criminal Mischief after making a Facebook Live video of himself burning four children's books checked out of the Orange City Public Library.  The video, made on the first day of the city's gay pride festival, showed him burning books titled "Two Boys Kissing," "This day in June," "Morris Micklewhite and the tangerine dress," and "Families, families, families."

Canada's Youth Job Program Changes Attestation Requirement After Objections By Pro-Life Groups

Global News reports that this year the Canada Summer Jobs program is changing its grant application process after objections last year from religious organizations to the requirement that they attest, in applying for funds, that "both the job and the organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights."  The rights covered included reproductive rights and non-discrimination on the basis of sexual orientation or gender identity. Anti-abortion groups sued arguing that the required attestation violated their freedom of expression and religious freedom. (See prior posting.) This year, no attestation is required. Instead the burden is on Service Canada to determine whether grant funds will be used to hire young people for work that will restrict reproductive right or promote prejudice or discrimination.