Michigan City Adopts Ban on Conversion Therapy For Minors

The City of East Lansing on Tuesday passed an ordinance banning provision to minors of conversion therapy relating to sexual orientation or gender identity.  The City Council vote of approval was 3-2, after amendments to the version as proposed were adopted.  The original proposal and a video of City Council meeting including discussion and amendments are available on the city's website. Fox47 News reports on the passage of the ordinance.

Indian Tribe Sues Over Exclusion From Committee Dealing With Ancestors' Remains

A lawsuit was filed yesterday in a Texas federal district court by a non-federally recognized Indian tribe against Texas officials involved in redevelopment of the Alamo complex complaining about the tribe's exclusion from a committee dealing with human remains found at the site. Plaintiffs say their ancestors are among those buried there, and some of the tribes allowed on the committee are responsible for the deaths of those buried in the cemetery.

The complaint (full text) in Tap Pilam Coahuiltecan Nation v. Alamo Trust, Inc., (WD TX, filed 9/10/2019), contends that requirements of the San Antonio's zoning laws that refer to the National Historic Preservation Act are not being followed in dealing with a cemetery on the redevelopment site. Instead authorities are applying the Native American Grave Protection Act which excludes non-recognized tribes. The complaint alleges in part:

Defendants are ignoring the City of San Antonio’s Unified Development Code and arbitrarily applying NAGPRA for the purpose of excluding the Plaintiffs and other lineal descendants from participation. The reason for this is obvious, the Defendants are planning to conduct their archaeological activities in a manner that violates local, state and federal laws in an attempt to reduce cost and time.

Plaintiffs also complain that they were denied use of the Alamo Chapel for their annual Sunrise Memorial Ceremony. Courthouse News Service reports on the lawsuit.

Ann Arbor Concedes Narrow View of Public Accommodation

Last week, the city of Ann Arbor, Michigan settled a suit brought by a conservative political consulting and marketing firm challenging the city's attempt to apply its public accommodation law to the firm. Ann Arbor Code § 9:151(22) defines a public accommodation as including:

[A] business or other facility of any kind, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold or otherwise made available to the public....

The Stipulated Dismissal (full text) in ThinkRight Strategies, LLC v. City of Ann Arbor, (ED MI, filed 9/5/2019), asserts that:

While ThinkRight advertises to and receives requests for its services from the general public, ThinkRight will not fulfill any request if doing so involves promoting messages, views, policies, platforms, or causes contrary to ThinkRight’s conservative or religious principles.

The city of Ann Arbor conceded:

Ann Arbor does not consider ThinkRight to be a place of public accommodation as defined by Ann Arbor Code § 9:151(22).That is because ThinkRight will only provide its services in ways that promote, or are not contrary to, its conservative political beliefs and therefore limits the platforms, views, policies, causes, events, or messages it will convey or promote through its services.

ADF issued a press release announcing the settlement.

Recent Articles of Interest

From SSRN:

• Hashika Durai & K. Niranjana, A Study on Religious Laws and Religious Crimes in India, (August 26, 2019).
• Cyra Akila Choudhury, Reflections on the Christchurch Massacre: Incorporating a Critique of Islamophobia and TWAIL, (TWAILR: Reflections - 9/2019).
• Perry Dane, Echad: A D’var Torah on Parshat Vaetchanan, (August 17, 2019).
• Mark Kelman, What is in a Name?, (Taxation and Regulation Across Constitutional Domains (Carolina Academic Press, 2019)).
• Richard W. Garnett, The Communitarian Work and Vision(s) of Robert Cochran (and Thomas Shaffer), (Pepperdine Law Review, Vol. 46, 2019).
• Thomas Charles Berg, Religious Freedom and the Common Good: A Summary of Arguments and Issues, (15 University of St. Thomas Law Journal 517 (2019)).
• Etienne Wain, The Blessing of Same Gender Relationships in the Anglican Church of Aotearoa New Zealand and Polynesia: A Mixed Blessing?, (Victoria University of Wellington Legal Research Paper (Sept. 2019)).
• Khaled Beydoun, The Ban and the Borderlands Within: The Travel Ban As a Domestic War on Terror Tool, (Stanford Law Review, Vol. 71, 2019).
• Shahnawaz Ahmed Malik, Minority Rights Protection in India; From Sachar Committee Recommendations to Mob Lynching, (Review Of Research Journal, 2018).
• Douglas NeJaime, The Constitution of Parenthood, (Stanford Law Review, Vol. 72, Forthcoming).

From SmartCILP:

• L. Darnell Weeden, A Functional Free Exercise Clause Analysis Requires a State To Prove a Compelling Interest Before Interfering With an Individual's Faith-Based Same-Sex Marriage Participation Objections, [Abstract], 18 Appalachian Journal of Law 113-150 (2018-2019).
• Rabea Benhalim, The Case for American Muslim Arbitration, [Abstract], 2019 Wisconsin Law Review 531-591.

Prof's Objections To Referring To Students By Preferred Gender Rejected

In Meriwether v. Trustees of Shawnee State University, (SD OH, Sept. 5, 2019), an Ohio federal magistrate judge recommended dismissing challenges brought by a faculty member against his university claiming that the school's nondiscrimination policy violates his 1st and 14th Amendment rights as well as his rights under the state constitution.  Shawnee State requires faculty to refer to students using pronouns that reflect the student's gender identity even when that is different that the gender assigned to the student at birth. Plaintiff alleges that he is an evangelical Christian with the religious belief that gender cannot be changed after the moment of conception. He contends that the University's policy forces him to communicate an ideological message regarding gender that conflicts with his beliefs. Among other things, the judge in a 63-page opinion, rejected plaintiff's compelled speech, viewpoint discrimination and free exercise claims. [Thanks to Glenn Katon for the lead.]

Former Priest Charged With Lying To FBI

The U.S. Attorney's Office for the Eastern District of Pennsylvania announced yesterday that it has charged former Catholic priest Robert Brennan with four counts of making false statements in order to  obstruct an investigation into complaints that he sexually abused a child when he was serving as a priest in Philadelphia. AP reports on the indictment. State criminal charges against Brennan had been dropped after his alleged victim died in 2013 of a drug overdose.

Procedures For Inclusion On Terrorist Watch List Are Unconstitutional

In Elhady v. Kable, (ED VA, Sept. 4, 2019), a Virginia federal district court held that the procedures for including individuals in the U.S. government's Terrorist Screening Data Base ("Watchlist") violate plaintiffs' constitutional rights. The court held that plaintiffs' liberty interests are implicated by their inclusion in the Terrorist Watch List, and the process used to place a person on the list poses a substantial risk of erroneous deprivation of their rights to domestic and international travel, as well as interference with their reputational interests. RNS reporting on the decision notes that the case was brought by CAIR on behalf of 23 Muslim U.S. citizens who say they were wrongly placed on the list.

Doctor Sues Over Hospital's Limits On Providing Aid-In-Dying Medications

Last month, a doctor and her terminally ill patient filed a lawsuit in a Colorado state court against Centura Health's St. Anthony Hospital challenging its religion-based policy of refusing to allow its physicians to prescribe medication for patients under the state's End of Life Options Act, or to assist in qualifying a patient for use of aid-in-dying medication. The complaint (full text) in Mahoney v. Morris, (CO Dist. Ct., filed 8/21/2019), alleges that the hospital's policy goes beyond the opt-out permitted by the Colorado statute which only permits hospitals to bar their physicians from writing prescriptions for assisted-suicide medications that will be used on hospital premises.

Last week, Centura Health fired plaintiff Dr. Barbara Morris, and filed a petition to remove the case to federal court, contending that the hospital, sponsored by Catholic and Seventh Day Adventist ministries, cannot be barred from dismissing an employee who violates its policy.  The Notice of Removal (full text) in Mahoney v. Morris, (D CO, filed 8/30/19) alleges that the hospital's rights under the Free Exercise and Establishment clauses would be violated if it cannot discipline its doctors for acting in opposition to its religious doctrines. It also invokes 42 U.S. Code § 2000e–1, the exemption from Title VII for religious institutions. Kaiser Health News reports on these developments. [Thanks to Michael Peabody for the lead.]

Ecclesiastical Abstention Doctrine Prevents Decision On Church Demolition

In Friends to Restore St. Mary's, LLC v. Church of St. Mary, Melrose, (MN App., Sept. 3, 2019), a Minnesota state appellate court held that the ecclesiastical abstention doctrine precludes a civil court from adjudicating a dispute over whether an arson-damaged church building is a “historical resource” protected under Minnesota Environmental Rights Act.  Plaintiffs sought an injunction to prevent demolition of the church building after the Bishop and the Diocesan Building Council recommended demolition and building of a new structure. The court concluded:

On the record before us, the decision to remove features of religious significance and demolish the church building is an internal decision that affects the faith and mission of the church. Appellant’s MERA claim cannot be adjudicated without violating the ecclesiastical abstention doctrine.

British Appeals Court Upholds Order For Payments Until A "Get" Is Granted

In Moher v. Moher, (EWCA, Aug. 21, 2019), Britain's Court of Appeal upheld an order issued by a trial court in a divorce action requiring the husband to pay £22,000 per year until the husband granted the wife a get (Jewish divorce decree). British statutes specifically allow courts to order that the civil divorce decree will not become final until the marriage has been dissolved under Jewish law. The appeals court concluded that this does not prevent other types of orders directed at obtaining a get. The appeals court pointed out that "a Get obtained by compulsion is invalid in Jewish law," but concluded that:

the structure of the order in the present case does not compel the husband to act in a certain way. The court order provides only that until he grants a Get he has to pay periodical payments to the wife.

Family Law Week reports on the decision.

City's Special Events Ordinance Partly Upheld

In Shook v. City of Lincolnton, NC, (WD NC, Aug.29, 2019). a North Carolina federal district court agreed with only part of a challenge by a group of Christian street preachers to a city's Special Event and Unnecessary Noise Ordinances. the court said in part:

[T]he Court will grant Plaintiff’s preliminary injunction [as to] the portion of the Special Events Ordinance prohibiting “[a]ny conduct deemed to be disruptive . . . to participants or attendees of the special event” and “[a]busive . . . language that disrupts a special event or festival.” However, the City may still enforce the ... [ban on] "language ... that abuses or threatens another person in a manner likely to cause a fight or brawl at a special event or festival,” “... conduct deemed to be ... dangerous to participants or attendees of the special event,” and “threatening language that disrupts a special event or festival.”

The court also upheld the city's Unnecessary Noise ban.

Ecclesiastical Abstention Doctrine Requires Dismissal of Pastor's Contract Claim

In In re First Christian Methodist Evangelistic Church, (TX App., Aug. 30, 2019), a Texas state appellate court held that the ecclesiastical abstention doctrine, as a matter of constitutional law, prevented civil courts from adjudicating a pastor's claim that he was entitled to 6 months severance pay under his employment contract. The court said in part:

[T]o determine if the Church was required to pay the Senior Pastor severance under the contract, the trial court will be required to determine why the Senior Pastor was terminated and, if the termination was for misconduct, the court will be required to determine if the Senior Pastor was properly terminated for misconduct as defined by the Church’s Book of Discipline and ecclesiastical rules.... The ecclesiastical nature of the dispute cannot be severed from the contractual issues asserted by the Senior Pastor. 

County Settles Suit Over Invocation Policy

According to yesterday's Carroll County Times, the Carroll County, Maryland, Board of Commissioners voted unanimously yesterday to settle a lawsuit, originally filed in 2013, challenging the Commissioners' policy on invocations.  Prayers that were often sectarian were delivered by members of the County Commission, on a rotating basis, rather than by invited clergy or a chaplain.  The Commissioners decided to settle the case after the 2017 decision by the U.S. 4th Circuit Court of Appeals in Lund v. Rowan County, North Carolina finding a similar practice unconstitutional. (See prior posting.) At yesterday's Board meeting, a number of citizens objected to the settlement.

Pence To American Legion:VA Hospitals Will Not Be "Religion-Free Zones"

On Wednesday, Vice President Mike Pence addressed the American Legion's National Convention in Indianapolis (full text of remarks). Among the accomplishments of the Trump Administration which Pence reviewed in his 35-minute speech, was the following:

You might’ve heard even today that there’s a lawsuit to remove a Bible that was carried in World War II from a Missing Man Table at a VA hospital in New Hampshire.  There’s a lawsuit underway.  It’s really no surprise because, under the last administration, VA hospitals were removing Bibles and even banning Christmas carols in an effort to be politically correct.  But let me be clear: Under this administration, VA hospitals will not be religion-free zones.  (Applause.)

We will always respect the freedom of religion of every veteran of every faith.  And my message to the New Hampshire VA hospital is: The Bible stays.  (Applause.)

Pence ended his speech thanking veterans, alluding to language from Psalm 18 and Psalm 144 in doing so:

As the Psalmist wrote, you “trained your hands for war,” and we thank Him who gave you the grace “to advance against a troop” and come home safe to serve all of those who also serve.

Baptist Leader Sued In Myanmar Over Meeting With Trump

According to The Irrawaddy, in Myanmar a member of the military's northern command stationed in Kachin province filed a lawsuit Monday in the Myitkyina Township Court against a Baptist pastor for his remarks at a White House meeting. In July, Kachin Baptist Convention President Rev. Dr. Hkalam Samson attended a U.S. State Department meeting of victims of religious persecution from around the world. As part of the event, he and others met with President Donald Trump in the Oval Office.  Irrawaddy reports:

The legal complaint cites a live broadcast of the conversation between the religious leader and the US president on the Facebook page of World News Now....

... Samson told Trump there was no religious freedom in Myanmar and that oppression and torture were still common in the country, where fighting between ethnic armed organizations and the Myanmar military continues despite a return to civilian rule. 

He also requested Trump support Myanmar’s transition to “genuine” democracy and federalism. 

... Samson also thanked the US for imposing sanctions against Myanmar military commander-in-chief Senior-General Min Aung Hlaing and other leaders over extrajudicial killings of Rohingya Muslims. The sanctions bar the officers from entry to the US.

New Jersey Assisted Suicide Law Reinstated By Appeals Court

In Glassman v. Grewal, (NJ App.,  Aug. 27, 2019), a New Jersey state appeals court lifted the temporary restraining order entered by a trial courtearlier this month (see prior posting) preventing the state's Aid in Dying for the Terminally Ill Act from being enforced.The appeals court said in part:

Here, plaintiff failed to establish that injunctive relief was necessary to prevent irreparable harm and preserve the status quo.... The only harm identified by the court was the Executive Branch's failure to adopt enabling regulations. Neither the court nor plaintiff, however, identified how the absence of such regulations harmed him, irreparably or otherwise.... 

Further, as the Act makes clear, participation by physicians like plaintiff is entirely voluntary. The only requirement the Act imposes on health care providers who, based upon religious or other moral bases, voluntarily decide not to treat a fully-informed, terminally-ill patient interested in ending their lives, is to transfer any medical records to the new provider selected by the patient. See N.J.S.A. 26:16-17(c). We fail to discern how the administrative function of transferring those documents constitutes a matter of constitutional import, or an act contrary to a physician's professional obligations. In this regard, we note that a physician has long been required to transfer a patient's records on request, see N.J.A.C. 13:35-6.5, and does so without personal assent to any subsequent medical procedures.

A few hours later, the New Jersey Supreme Court refused to vacate the appeals court decision. (Full text of Supreme Court Order.) NorthJersey.com reports on the decisions.

9th Circuit: FLDS Towns Discriminated Against Non-Church Members

In United States v. Town of Colorado City, Arizona, (9th Cir., Aug. 26, 2019), the U.S. 9th Circuit Court of Appeals upheld an injunction issued by an Arizona federal district court, finding that the FLDS-controlled town of Colorado City engaged in a pattern or practice of discriminating against non-members of the Fundamentalist Latter Day Saints.  In affirming a finding that the city violated 34 U.S.C. § 12601, the court concluded that the statute imposes liability on governments for patterns of unconstitutional conduct by their officers and agents.  In the suit, the United States charged that Colorado City (as well Hildale, Utah) "functioned as an arm of the Church and conspired with FLDS leaders to use the Towns’ municipal resources to advance Church interests." AP reports on the decision.

Suit Challenges North Carolina County's Refusal To Recognize Marriages Performed By Universal Life Clergy

Suit was filed this week in a North Carolina federal district court challenging the refusal by the Cleveland County, North Carolina marriage official to issue marriage licenses to couples whose weddings were performed by Universal Life Church (ULC) ministers. ULC ordains anyone "who feels the call" as a minister. Ordination takes place online for free and credentials are sent to applicants by mail. North Carolina Gen. Stat. §51-1 allows "an ordained minister of any religious denomination to officiate at weddings.  The complaint (full text) in Universal Life Church Monastery Storehouse v. Harnage, (WD NC, filed 8/26/2019), alleges violation of the Establishment, Equal Protection and Free exercise clauses, as well as of Art. VI and of the North Carolina constitution, saying in part:

Defendant’s apparent policy of refusing to recognize the validity of marriages performed by ULC Monastery ministers officially prefers certain religions or religious denominations over ULC Monastery by allowing other religious leaders to solemnize marriages but declining to extend that same benefit to ULC Monastery ministers.

Charlotte Observer reports on the lawsuit.

Part of Missouri's New Abortion Law Is Preliminarily Enjoined

In Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc. v. Parson, (WD MO, Aug. 28, 2019), a Missouri federal district court granted a preliminary injunction against enforcement of provisions in Missouri law (full text) that wold have gone into effect today that would have banned all abortions (except in cases of medical emergencies) after 8, 14, 18 or 20 weeks of pregnancy. The court ultimately refused to enjoin another section of Missouri's law that bans any abortion if the provider knows that the woman is seeking the abortion because of the sex or race of the child or because of a prenatal diagnosis of Down Syndrome. The court held that while such provisions as they apply to non-viable fetuses are likely unconstitutional, plaintiffs have not shown that a preliminary injunction pending final resolution of the issue is necessary to prevent some demonstrable real-life harm. NPR reports on the decision.

Suit Challenges Illinois Waiver Form To Allow Drivers License Photo With Head Covering

Suit was filed this week in an Illinois federal district court on behalf of a Muslim woman who wears a hijab challenging the disclaimer that Illinois administrative rules require to be filed in order to allow a driver's license photo to be taken wearing a head covering. The complaint (full text) in Bicksler v. Illinois Secretary of State, (ND IL, filed 8/26/2019),contends that plaintiff's free exercise rights under the 1st Amendment and Illinois' Religious Freedom Restoration Act and the Illinois Human Rights Act were violated when she was required to sign this statement:

In observation of my religious convictions, I only remove my head dressing in public when removal is necessary (such as for a medical examination or a visit to a hair dresser or barber). I do not remove the head dressing in public as a matter of courtesy or protocol (such as when entering a professional office or attending a worship service). I acknowledge that if the Director of the Driver Services Department is provided with evidence showing I do not wear a religious head dressing at all times while in public, unless circumstances require the removal of the head dressing, my driver’s license or identification card may be canceled.

CAIR Chicago issued a press release announcing the filing of the lawsuit.