Court Refuses To Dismiss Title VII Suit Because Ministerial Exception Unclear On Facts

In Tucker v. Faith Bible Chapel International, (D CO, May 18, 2020), a Colorado federal district court refused to dismiss a Title VII and state common law complaint brought against Faith Christian Academy. The suit was filed by Gregory Tucker who was a science teacher and chaplain/ director of student life at Faith Christian Academy.  Gregory was fired after he organized a controversial chapel service titled "Race and Faith." Defendant contends that the "ministerial exception" doctrine bars the lawsuit. The court said in part:

I find that whether Mr. Tucker was a “minister” within the meaning of the “ministerial” exception” is genuinely disputed on the evidence presented. Defendant’s position is substantially grounded in the wording of documents, most notably the extension agreement that characterized Mr. Tucker as “chaplain” and the handbook which purports to make all teachers and other full-time employees “ministers.” To be sure, those documents are relevant to the issue. But the substance of Mr. Tucker’s position turns on the totality of the facts and circumstances of his employment, and he has come forward with facts that, if believed by the jury, could rationally support the opposite conclusion.

France's Council of State Orders Lifting of COVID-19 Ban On Worship Services

Yesterday, France's highest court, the Council of State, ruled that within 8 days the government must lift its COVID-19 ban on gatherings at houses of worship. Currently only funerals, with no more than 20 people in attendance may be held in houses of worship.  Reporting on the decision, Euronews said:

The judge highlighted that the government authorised public gatherings of up to 10 people in other settings and that as such the blanket ban "is disproportionate to the objective of preserving public health."

The ruling adds that freedom of worship is a fundamental right which "includes among its essential components the right to participate collectively in ceremonies, in particular in places of worships" and that the government's decree "constitutes a serious and manifestly unlawful interference with it".

It called on the government to take measures that are "strictly proportionate to the health risks incurred".

[Thanks to Eric Rassbach via Epidemiclaw for the lead.]

RFRA Defense Rejected In Possession of Firearms Case

Inner City Press reports on a sentencing decision handed down yesterday in a New York federal district court in U.S. v. Cruz. The trial court judge rejected defendant's Religious Freedom Restoration Act defense in his sentencing hearing for illegal possession of a loaded firearm. Defendant's counsel argued that defendant's possession of the firearm was "solely for use in the ceremonial practice of his religion, Palo Mayombe. Firearms hold only symbolic meaning in the ritual practice of the religion and involve no violence or threat of violence." The judge sentenced defendant to 21 months in prison followed by three years of supervised release.

Oregon Trial Court Enjoins Enforcement of State's COVID-19 Orders In Suit By Churches

In Elkhorn Baptist Church v. Brown, (OR Cir. Ct., May 18. 2020), an Oregon state trial court granted a preliminary injunction against further enforcement of the governor's COVID-19 emergency orders in a suit brought by 16 churches and a number of other plaintiffs who complain that the order prevents them from holding church services.  The court held that under the relevant legislation invoked by the governor, a state of emergency could be declared only for up to 28 days.

[W]hen the Governor utilized the provisions of ORS 433.441 in her executive order, she triggered all the provisions of ORS 433.441 including the time restrictions in ORS 433.441(5). By doing so, the executive order became null and void beyond the maximum 28-day time period allowed by the statute. Moreover, by not complying with ORS 433.441(5) timelines, the Governor’s subsequent Executive Orders 20—05 through 20-25 are also null and void....

The Governor has an enormous responsibility to protect the lives of the citizens of our state balanced against the citizens’ constitutional rights to freedom of religion which includes how he or she chooses to worship. The Governor’s orders are not required for public safety when Plaintiffs can continue to utilize social distancing and safety protocols at larger gatherings involving spiritual worship, just as grocery stores and businesses deemed essential by the Governor have been authorized to do.

Reporting on the decision, The Oregonian says that the governor's office has filed an appeal with the Oregon Supreme Court.

UPDATE: According to a statement on Twitter by Governor Brown, late last night the Oregon Supreme Court reinstated her emergency orders while the state Supreme Court hears arguments in the appeal.

British Government Task Force To Develop Rules For Reopening of Houses of Worship

In Britain last Friday, the Ministry of Housing, Communities and Local Government announced a new interfaith task force to develop a plan for the phased and safe reopening of places of worship. According to the release:

No place of worship will be able to reopen before a final decision by the government and the accompanying change to the legal position in the published regulations. Faith organisations will be able to reopen at a slower pace if they wish.

[Thanks to Law & Religion UK for the lead.]

Recent Articles of Interest

From SSRN:

• Joshua Neoh,  Apostasy and Freedom of Religion in Malaysia, (in Paul Babie, Neville Rochow and Brett Scharffs (eds), Freedom of Religion or Belief: Creating the Constitutional Space for Fundamental Freedoms (Edward Elgar Press, 2020)).
• Tarlan Masmaliyeva, Headscarf Cases Before the CJEU: Achbita and Bougnaoui (April 16, 2020).
• Kellen Funk, The Swearer's Prayer, (May 12, 2020).
• Julie Ada Tchoukou, Religion as an Ideological Weapon and the Feminisation of Culture in Nigeria: A Critical Analysis of the Textuality of Violence Through the Legal Regulation of Child Marriages, (The International Journal of Human Rights, 2020).
• Howard Wasserman, Testing the Koufax Curse: How 18 Jewish Players (and Rod Carew) Performed on Yom Kippur, (Florida International University Legal Studies Research Paper No. 20-07 (2020).
• Heidi Gilchrist, 'Act Normal or Leave': When Law and Culture Collide, (Columbia Journal of European Law, Forthcoming).
• Carlo A. Pedrioli, Regulating Online Hate Speech: A U.S. Perspective, (6 Int'l J. Digital & Data L. 259 (2020)).
• Abdullah Salem Bugshan, Faisal Alnori & Walid Bakry, Shariah Compliance and Corporate Cash Holdings (November 30, 2019).

From SmartCILP:

• Francis J. Beckwith, Now, I'm Liberal, But To a Degree: An Essay on Debating Religious Liberty and Discrimination by John Corvino, Ryan T. Anderson, Sherif Girgis, 67 Cleveland State Law Review 141-172 (2019).
• Vanita Saleema Snow, Reframing Radical Religion, 11 Georgetown Journal of Law & Modern Critical Race Perspectives 1-41 (2019).
• Brian Miller, Reconciling Religious Freedom and LGBT Rights: The Perils and Promises of Masterpiece Cakeshop, 29 George Mason University Civil Rights Law Journal 245-274 (2019).
• Joe Dryden, Matthews v. Kountze Independent School District: An Outlier In a Sea of Establishment Clause Outliers, 29 George Mason University Civil Rights Law Journal 275-300 (2019).
• Shelly Aviv Yeini, The Rest Day of Professional Football Players in Israel, [Abstract], 18 Virginia Sports & Entertainment Law Journal 17-34 (2018).

Court Strikes Down North Carolina Limits On Worship Services

In Berean Baptist Church v. Cooper, (ED NC, May 16, 2020), a North Carolina federal district court issued a temporary restraining order barring enforcement of the governor's COVID-19 order that limits indoor worship services to ten people. Saying that "There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment.," the court continued:

The assembly for religious worship provisions in EO 138 starkly illustrate the extent to which religious entities and individuals are not subject to a neutral or generally applicable law. The record, at this admittedly early stage of the case, reveals that the Governor appears to trust citizens to perform non-religious activities indoors (such as shopping or working or selling merchandise) but does not trust them to do the same when they worship indoors together.

News & Observer reports on the decision.

Louisiana Limits On Church Services Upheld

In Spell v. Edwards, (MD LA, May 15, 2020), a Louisiana federal district court upheld the validity of the Louisiana governor's COVID-19 restrictions on church services.The court said in part:

At the core of their argument, Plaintiffs submit that their congregation “is a large assembly of more than 2,000 individuals” whose religious beliefs require them to assemble for church in person.... Additionally, Plaintiff Spell avers that he is imbued with a “duty to lay hands on the sick and pray for them so that they may become well,” which, along with holy communion and the love offering, would lose meaning absent a public gathering.... 

The Court finds that there is a substantial relationship between the occupancy limitations in the Governor’s orders and the current severe public health crisis. Such restrictions are directly intended to limit the contact-based spread of COVID-19. Additionally, like the law at issue in Jacobson, Proclamation No. 52 JBE 2020 is not a complete ban on Plaintiffs’ rights as alleged by Plaintiffs. Under the terms of the order, Plaintiffs have been free to hold outdoor services with as many congregants as they would like and nothing in the orders proscribes, inhibits or regulates the content of their religious speech. Plaintiffs have always been free to fully exercise their rights to assembly, although for smaller numbers of congregants.

(See prior related posting).

Court Is Critical of Church's Litigation Tactics In Challenge To COVID-19 Order

In First Pentecostal Church of Holly Springs v. City of Holly Springs, Mississippi, (ND MS, May 14, 2020), a Mississippi federal district court refused to rule immediately on an attempt by a Holly Springs church to hold indoor church services.  Both the state and the city have issued  COVID-19 orders that are similar, but the church views the state as being more friendly to religious exercise.  The court, in an  opinion critical of the church's continued litigation, said in part:

This court has found the City to be quite accommodating of the free exercise of religion in this case, including by quickly amending its ordinance to expressly grant plaintiff the right to conduct the drive-in services which it previously requested. Nevertheless, plaintiff appears to regard the Governor, but not the City, as a friend of the exercise of religion, and, that being the case, this court can discern little point in the City choosing to increase its legal exposure by adopting its own executive orders relating to church services, when they are so similar to the Governor’s. The City’s choice of whether or not to adopt the Governor’s orders will be moot if it is determined that the Governor’s orders pre-empt the City’s, but this court raises this as one potential step to bridge the gap of mistrust which clearly exists between the parties in this case.....

Plaintiffs’ briefing on this issue heightens this court’s impression that this entire lawsuit is nothing more than a deeply misguided attempt on their part to gain permission to endanger their own lives and those of their fellow community members. While this court does not rule out the possibility that indoor church services could be held at acceptable risk by a responsible church if sufficient precautions were taken, it has grave concerns whether the plaintiff in this case is sufficiently aware of the gravity of these matters to enable it to do so....

This court observes that plaintiff has made a habit in this litigation of taking the time to carefully prepare briefs (its brief in support of its current motion is 26 pages long) and then demanding an immediate ruling from this court, with opposing counsel left to make hurried arguments in a telephonic hearing. This is a fundamentally unfair process, and this court will no longer tolerate it.

European Court Says Muslim Inmate's Religious Rights Were Infringed In Russian Prison

The European Court of Human Rights this week handed down an opinion in the case of a Muslim inmate in a Russian prison who claims that his religious rights were infringed in violation of the European Convention on Human Rights when he was reprimanded for praying in the middle of the night during Ramadan.  In Korostelev v. Russia, (ECHR, May 12, 2020), the court said in part:

Religious freedom is primarily a matter of individual thought and conscience..... However, ... freedom of religion also encompasses the freedom to manifest one’s belief.... The manifestation of religious belief may take the form of worship, teaching, practice and observance.... Since the manifestation by one person of his or her religious belief may have an impact on others, ... any limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein...

From the Government’s submission and the findings of the domestic authorities, it appears that the only reason for disciplining the applicant was the formal incompatibility of his actions with the prison schedule and the authorities’ attempt to ensure full and unconditional compliance with that schedule by every prisoner.

... Although the Court recognises the importance of prison discipline, it cannot accept such a formalistic approach, which palpably disregarded the applicant’s individual situation and did not take into account the requirement of striking a fair balance between the competing private and public interests.

The court in a chamber judgment awarded plaintiff 2600 Euros in damages and another 2000 Euros for costs and expenses. Law & Religion UK reports further on the case.

Churches Sue Over North Carolina COVID-19 Order

Two churches and an organization representing a number of churches filed suit yesterday in a North Carolina federal district court seeking to enjoin enforcement of  North Carolina Governor Roy Cooper's COVID-19 Order banning indoor religious worship services comprised of more than ten people. The complaint (full text) in Berean Baptist Church v. Cooper, (ED NC, filed 5/14/2020), alleges that the governor's orders are unconstitutional:

because they treat religious gatherings less favorably than similar secular gatherings, virtually banning religious assembly, are not narrowly tailored, and do not permit less restrictive means to achieve the government’s interest without burdening Plaintiffs’ rights as guaranteed by the U.S. Constitution’s First Amendment.

Plaintiffs also filed a Memorandum in Support of their motion for a TRO (full text). WSOC TV reports on the lawsuit.

9th Circuit: Church Has Standing To Challenge California Abortion Coverage Mandate

In Skyline Wesleyan Church v. California Department of Managed Health Care, (9th Cir., May 13, 2020), the U.S. 9th Circuit Court of Appeals reversed a California federal district court's ruling on standing and ripeness in a challenge to the mandate that insurance policies cover legal abortion services.  The appeals court held that the church plaintiff has standing to challenge the requirement on free exercise grounds and that the claim is ripe for review. Courthouse News Service reports on the decision.

Churches Fail In Challenge To Illinois COVID-19 Limits

In Elim Romanian Pentecostal Church v. Pritzker, (ND IL, May 13, 2020), an Illinois federal district court refused to grant a temporary restraining order or preliminary injunction to two churches challenging the governor's COVID-19 limitation on worship services. The governor's order requires social distancing and limits worship services to ten people.  The court said in part:

[B]ecause Jacobson [v. Massachusetts] is implicated by the current health crisis, and because the Order advances the State’s interest in protecting its citizens from the pandemic, the court concludes that plaintiffs have a less than negligible chance of success on their constitutional claims.  Moreover, even if Jacobson’s emergency crisis standard does not apply, plaintiffs have failed to show any likelihood of success under traditional First Amendment analysis. ...

[P]laintiffs have provided no evidence that the Order targets religion. They point to the Order’s exemptions for essential businesses that may host more than ten people and argue “if large gatherings at liquor stores, warehouse supercenters, and cannabis stores are not prohibited – and distancing and hygiene practices are only required to the greatest extent possible – even though endangering citizens (or not) to an equal degree, then it is obvious religious gatherings have been targeted for discriminatory treatment.” The court disagrees.

Gatherings at places of worship pose higher risks of infection than gatherings at businesses.

WLS TV reports on the decision.

Hair Salon Raises Free Exercise Claims To Wisconsin COVID-19 Order As State Supreme Court Invalidates It On Other Grounds

As reported by WBAY, a suit was filed Tuesday in a Wisconsin federal district court challenging the state's "Safer at Home" order on free exercise and free speech grounds.  Plaintiff Jessica Netzel operates a faith-based hair salon.  According to the news report:

The lawsuit states Kingdom Kuts "as the name implies, is a ministry of Plaintiff Ms. Netzel. Scriptural references are placed about the business. Ms. Netzel sincerely believes that she is to share her faith with others through her work at Kingdom Kuts."

The suit also says that the order prevents plaintiff from participating in in-person worship services.

UPDATE: Here is the full text of the complaint in Kindom Kuts v. Netzel, (ED WI, filed 5/12/2020). [Thanks to Marty Lederman via Religionlaw.]

Yesterday in Wisconsin Legislature v. Palm,( WI Sup. Ct., May 13, 2020), the Wisconsin Supreme Court in a 4-3 decision held that the state's Safer at Home order is unenforceable because it exceeds statutory authority and was not adopted in accordance with required rulemaking procedures.

ADL Releases 2019 Audit of Antisemitic Incidents

Yesterday the ADL released its 2019 Audit of Antisemitic Incidents in the United States. (Full text of report.) According to the report:

In 2019, ADL tabulated 2,107 antisemitic incidents throughout the United States.  This is a 12% increase from the 1,879 incidents recorded in 2018 and marks the highest number on record since ADL began tracking antisemitic incidents in 1979.

U.N. Conference On Role of Religious Leaders In Addressing COVID-19 Crisis

Yesterday, the United Nations General Assembly held a video conference on The Role of Religious Leaders In Addressing the Multiple Challenges of COVID-19. Here is background on the conference and a list of speakers. Here is a video of the entire 3-hour Conference. In his remarks (full text), U.N. Secretary General António Guterres said in part:

[W]e continue to see conflicts rage in many places — along with a rise in ethno-nationalism, stigma and hate speech targeting vulnerable communities and exacerbating suffering.  Meanwhile, extremists and radical groups are seeking to exploit eroding trust in leadership and feed on people’s vulnerability to serve their own ends.

 I ask faith leaders to actively challenge inaccurate and harmful messages, and encourage all communities to promote non-violence and reject xenophobia, racism and all forms of intolerance....

 Across the globe we are seeing an alarming increase in violence against women and girls as this pandemic spreads.... I appeal to religious leaders to categorically condemn such acts....

 [A]s we fight the spread of disinformation and misinformation, I ask religious leaders to leverage your networks and communication capacities to support governments in promoting WHO-recommended public health measures — from physical distancing to good hygiene — and to ensure that faith-based activities, including worship, religious ceremonies and burial practices, comply with these measures.

6th Circuit Permits Same-Sex Couple To Intervene In Lawsuit By Catholic Adoption Agency

The U.S. 6th Circuit Court of Appeals this week issued an opinion on a procedural issue in the continuing battle between the state of Michigan and Catholic adoption and foster care agencies.  In settling a case brought by a same-sex couple, the state agreed to impose sexual-orientation non discrimination requirements on child-placement agencies that contract with the state. Then the district court issued a preliminary injunction protecting the Catholic agency.  Now in Buck v. Gordon, (6th Cir., May 11, 2020), the Court of Appeals held that the trial court should have allowed permissive intervention in the case by a same-sex couple whose earlier lawsuit triggered Michigan's imposition of the non-discrimination requirements. Meanwhile the underlying case is on hold awaiting the U.S. Supreme Court's decision on a similar issue in Fulton v. City of Philadelphia.

Free Exercise Challenge To St. Louis COVID-19 Order Dismissed On Standing Grounds

In Hawse v. Page, (ED MO, May 11, 2020), a Missouri federal district court held that plaintiffs lack standing to bring a free exercise challenge to the St. Louis County's COVID-19 order limiting religious gatherings to ten persons. The court said in part:

Here, Plaintiffs state that they are bringing a "facial challenge" to the constitutionality of the Order.... Plaintiffs allege that they are Christians and that Sunday church services are important to their worship.....Plaintiffs allege that their churches are large enough to allow social distancing and have hand sanitizer and other hygiene products to allow for safe gatherings.... Plaintiffs, however, do not identify their religious denominations, organizations, or specific places of worship in the Complaint. Plaintiffs do not allege when their respective churches closed or what caused them to close. Plaintiffs do not allege that their large church gatherings were suspended because they were unlawful under the Order, rather than in response to the general COVID-19 public health crisis....  Thus, based upon the Complaint, the Court is unable to discern the specific impetus for closure of Plaintiffs' churches and, likewise, what would enable their churches to reopen. 

The court however refused to dismiss plaintiffs' due process challenge at this time, asking for further briefing on the issue.

Pakistan Creates National Commission For Minorities

UCA News reports that on May 5, Pakistan's federal cabinet approved creation of a National Commission for Minorities. Pakistan's Supreme Court had called for the government to create such a body over six years ago.  The Commission will have representatives from the Christian, Muslim, Hindu, Sikh, Parsi and Kelash  communities. No Ahmadi Muslims are included.  Some minority groups have criticized the Commission as having no power.  The U.S. Commission on International Religious Freedom, however, welcomed the action by the Pakistani government.

Suit Against Community College Challenges Campus Speech Restrictions

Suit was filed in an Oregon federal district court last week by a pro-life group and two Christian students challenging a community college's policies that require advance approval for speech activities on campus as well as limiting speeches and leafleting to certain speech zones.The complaint (full text) in Chemeketa Students for Life v. Members of the Chemketa Board of Education, (D OR, filed 5/5/2020) challenges the school's policies on free speech and vagueness grounds. ADF issued a press release announcing the filing of the lawsuit.