Supreme Court Hears Oral Arguments In Title VII Case

Yesterday the U.S. Supreme Court heard oral arguments (transcript of oral arguments) in Fort Bend County, Texas v. Davis. In the case, the 5th Circuit held that the the requirement a person exhaust administrative remedies before bringing a Title VII employment discrimination action is not jurisdictional.  This meant that the county's delay in raising the defense of exhaustion could result in its forfeiting its right to raise the defense. Charlotte Garden at SCOTUSblog reports on the oral arguments.

Condo's Sex Segregated Swim Hours Violate Fair Housing Act

In Curto v. A Country Place Condominium Association, (3d Cir., April 22, 2019), the U.S. 3rd Circuit Court of Appeals held that a condominium's mostly sex-segregated swimming hours, adopted in deference to a large number of Orthodox Jewish residents, violates the federal Fair Housing Act. Judge Ambro's opinion focused on the fact that the swim schedule discriminates against women. Weekday evening times were mostly allocated to men.  He concluded:

Women with regular-hour jobs thus have little access to the pool during the work week, and the schedule appears to reflect particular assumptions about the roles of men and women.

He concluded that defendant had waived any RFRA defense, and even if it had not, the condominium association lacks standing to assert the defense.  Judge Fuentes' concurring opinion added:

I write separately to express my skepticism that the pool’s sex-segregated schedule could be saved by a more even allocation of evening hours between men and women. Our jurisprudence makes clear that facial discrimination does not become lawful merely because its burdens are felt by members of both sexes. We would have no problem concluding, for example, that a pool schedule that allocates two-thirds of its hours to swimming segregated by race and one-third of its hours to “Integrated Swimming” would be intolerable under the FHA. And the FHA’s prohibition on discrimination does not distinguish between discrimination on the basis of sex and discrimination on the basis of race.

ACLU issued a press release announcing the decision.

Certiorari Denied In Priest's Libel Suit Against Diocese

Yesterday the U.S. Supreme Court denied review in Gallagher v. Diocese of Palm Beach, Inc., (Docket No. 18-964, certiorari denied, 4/22/2019) (Order List).  In the case,  a Florida state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a defamation suit brought by a Catholic priest against the diocese in which he served. (See prior posting.) The Florida Supreme Court had denied review in the case.  South Florida Sun Sentinel reports on yesterday's U.S. Supreme Court's denial of certiorari.

Zoning Accommodation For Homeless Construction Is Upheld

In Ward v. Metropolitan Government of Nashville and Davidson County, Tennessee, (TN App., April 17, 2019), a Tennessee state appeals court upheld a local zoning decision granting an accommodate to property owned by a church on which it would build 22 micro-homes to house the homeless. As summarized by the court:

Appellants argue that the development should be subject to the zoning laws and procedures because the development would be constructed, owned, and operated by a lessee of the property that was not a religious institution or assembly or otherwise exercising religion and, consequently, applying the zoning laws to the development would not adversely affect the church’s exercise of religion.

The court held, however:

Given the nature of the project, the lease arrangement between Open Table and GUMC [Glencliff United Methodist Church] does not negate the protection that the statutes provide to GUMC; the project is born out of a common, religiously motivated desire to help the homeless, a cause that is recognized by the church as part of its core mission. Thus, it is entirely appropriate for GUMC to apply for and receive the accommodation allowed by the statutes. 

Charitable Organization Avoids Dismissal of RLUIPA Claims

In Layman Lessons Church v. Metropolitan Government of Nashville/ Davidson County, (MD TN, April 18, 2019), a Tennessee federal district court allowed a religious charitable disaster relief organization to move ahead with many of its claims under RLUIPA and the comparable state statute.  Plaintiff alleges that the city of Nashville discriminated against it through arbitrary enforcement of zoning and building code provisions. The court said in part:

Plaintiff has sufficiently alleged ... that the actions of Defendant—including, but not limited to, Defendant’s issuance of demolition orders, stop work orders, and storm water orders...; Defendant’s insisting that Plaintiff complete additional repair work and get additional permits than what was previously required; Defendant’s erroneously asserting that a protected stream existed on the property; and Defendant’s erroneously fining Plaintiff for “grading without a permit”—created a “substantial burden” on its free exercise of religion, in violation of RLUIPA.

Plaintiff also alleges that Defendant discriminated against Plaintiff based on its religion. Defendant does not mention this discrimination claim. Plaintiff has alleged that it was treated differently than other property owners because it is a religious organization.... Plaintiff has sufficiently alleged, for purposes of a motion to dismiss, that it was treated differently from non-religious property owners.... In addition, for the same reasons, Plaintiff has sufficiently alleged that it was treated on less than equal terms with a non-religious institution...

3rd Circuit: Philly May Require Its Foster Care Agencies To Accept Same-Sex Couples

In Fulton v. City of Philadelphia, (3d Cir., April 22, 2019), the U.S. 3rd Circuit Court of Appeals upheld against 1st Amendment challenges the City of Philadelphia's policy of refusing to contract with foster care agencies, such as Catholic Social Services, that will not place children with same-sex married couples.  The court said in part:

The City’s nondiscrimination policy is a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy. 

[A]t the preliminary injunction stage CSS shows insufficient evidence that the City violated the Free Exercise Clause. The Fair Practices Ordinance has not been gerrymandered..., and there is no history of ignoring widespread secular violations ... or the kind of animosity against religion found in Masterpiece. Here the City has been working with CSS for many decades.... And the City has expressed a constant desire to renew its relationship with CSS as a foster care agency if it will comply with the City’s non-discrimination policies protecting same-sex couples.

Philadelphia Inquirer reports on the decision.

Supreme Court Will Decide Whether Title VII Protects Gays and Transgender Individuals

The U.S. Supreme Court today granted review in three cases involving important questions of LGBT rights under Title VII of the 1964 Civil Rights Act.  First the Court granted certiorari in Bostock v. Clayton County, Georgia, (Docket No. 17-1618) (SCOTUSblog Case Page) and consolidated it with Altitude Express, Inc. v. Zarda (Docket No.17-1623) (SCOTUSblog Case Page) (see prior posting) in which it also granted certiorari (Order List 4/22/2019). The cases raise the question of whether Title VII's prohibition on discrimination "because of ... sex" covers discrimination against employees on the basis of sexual orientation.

Second, the Court granted review in R.G. & G.R. Harris Funeral Homes v. EEOC, (Docket No. 18-107, certiorari granted 4/22/2019 (SCOTUSblog Case Page) (See prior posting). The grant of certiorari was specifically on:

Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).

New York Times reports on the Supreme Court's action.

Recent Articles of Interest

From SSRN:

• John Vlahoplus, Foreign-Born Children of Disloyal Parents: Adam Muthana, Mary Arcedeckne and the Natural Born, (St. John's Law Review, Forthcoming).
• Eliza Bateman, 'His Garden a Wilderness' - The Balance between Equality and Freedom of Religion in Australia and Canada, (March 18, 2019).
• Scott D. Gerber, Law and Liberty of Conscience in Colonial Pennsylvania, (NYU Journal of Law & Liberty, Vol. 12, No. 3, 2019, Forthcoming).
• Martin Kwan, Human Gene Editing and Human Rights: An Uncertain Future, (Human Rights Series, 2019).
• Nitish Nawsagaray, Misuse of the Prevention of Atrocities Act: Scrutinising the Mahajan Judgment, 2018, (Economic & Political Weekly, June 2, 2018 vol. LIII no. 22).

From SmartCILP:

• The Question of Religious Freedom: From John Courtney Murray, SJ and Vatican II to the Present. Articles by Miguel H. Diaz, Robin W. Lovin, Barry Sullivan, Leslie C. Griffin, Hille Haker, Kathleen A. Brady, Carmen Nanko-Fernandez, Thomas C. Berg. 50 Loyola University Chicago Law Journal 1-209 (2018).
• Kristina M. Campbell, Sanctuary, Temporary Protected Status, and Catholic Social Teaching, 96 University of Detroit Mercy Law Review 25-53 (2018).

DC Circuit: House Can Exclude Secular Invocations

In Barker v. Conroy, (D Cir., April 19, 2019), the U.S. Court of Appeals for the D.C. Circuit rejected an Establishment Clause challenge to the rule in the House of Representatives that limits invocations to those that are "religious" rather than secular.  At issue was the refusal by the House Chaplain's Office to allow a former Christian who had become an atheist to serve as guest chaplain and deliver a secular invocation.  The court found plaintiff had standing to bring the suit, but, citing Supreme Court precedent, held:

Marsh and Town of Greece leave no doubt that the Supreme Court understands our nation’s longstanding legislative-prayer tradition as one that, because of its “unique history,” can be both religious and consistent with the Establishment Clause. Marsh, 463 U.S. at 791. And although the Court has warned against discriminating among religions or tolerating a pattern of prayers that proselytize or disparage certain faiths or beliefs, it has never suggested that legislatures must allow secular as well as religious prayer. In the sui generis context of legislative prayer, then, the House does not violate the Establishment Clause by limiting its opening prayer to religious prayer.

Roll Call reports on the decision. [Thanks to Jeff Pasek for the lead.]

White House Announces Annual Easter Egg Roll

The White House today announced this year's Easter Egg Festivities, which will be held next Monday.  The press release, supplementing information elsewhere on the White House website, says in part:

First Lady Melania Trump and President Donald J. Trump invite this year’s Easter Egg Roll attendees to enjoy a variety of activities, including the time-honored Egg Roll and the Trump Administration’s Cards for Troops station.  New to the Egg Roll this year: musical eggs and Be Best hopscotch.  In recognition of the First Lady’s Be Best campaign, children will also have the opportunity to spread kindness by mailing postcards to anyone they choose – friends, family, members of the military – directly through a United States Postal Service mailbox that will be on the South grounds.

Pro-Life Pregnancy Center Challenges City's Required Disclosures

Suit was filed in a Connecticut federal district court yesterday challenging the constitutionality of a Hartford (CT) Ordinance that requires pregnancy resource centers to make required disclosures on signs, websites and when patients make appointments.  Facilities must make the disclosures if they do not have licensed medical providers on the premises to directly supervise all services.  The complaint (full text) in Caring Families Pregnancy Services, Inc. v. City of Hartford, (D CT. filed 4/18/2019), alleges that the Ordinance is drafted to cover only pro-life pregnancy resource centers, and requires statements that incorrectly imply that the facilities are not qualified to provide the services they offer. The complaint contends:

The practical result of enforcing the Ordinance’s Compelled Speech provision would be not only to inhibit a religious ministry from furthering its mission and message but also to force religious speakers to speak messages with misleading, confusing and negative implications....

Hartford is intent on interfering with certain views about life, pregnancy, and motherhood. Hartford has thus crafted a speaker-based, viewpoint-based law targeting the speech only of speakers espousing certain pro-life moral, religious, and philosophical beliefs.

ADF issued a press release announcing the filing of the lawsuit.

Emergency Order Requiring Measels Vaccination Upheld

In C.F. v. New York City Department of Health, (Kings Cty. Sup. Ct., April 18, 2019), a New York state trial court judge rejected challenges to the recent emergency order by the New York City Health Department requiring everyone living or working in zip codes comprising the Williamsburg section of Brooklyn to be vaccinated against measles unless they already have immunity or are medically exempt. The court said in part:

The pivotal question posed for this court's determination is whether Respondent Commissioner has a rational, non-pretextual basis for declaring a public health emergency.... The unvamished truth is that these diagnoses represent the most significant spike in incidences of measles in the United States in many years and that the Williamsburg section of Brooklyn is at its epicenter....

The religious objection exemption contained in Public Health Law $2 164(a) applies only to the certificate of immunization required to admit a child to school, not to remedies attendant upon declaration of a public health emergency....

Petitioner raise the issue of informed consent.... A fireman need not obtain the informed consent of the owner before extinguishing a house fire. Vaccination is known to extinguish the fire of contagion.

Enforcement of Mahr Provision In Islamic Marriage Contract Upheld

In Seifeddine v. Jaber, (MI App., April 16, 2019), a Michigan state appellate court rejected a challenge to a trial court's enforcement in a divorce action of the mahr provisions of an Islamic marriage certificate. The provision required the husband to pay $50,000 to his wife. According to the court:

[T]he trial court expressly and repeatedly stated that it was not applying religious principles or doctrines but was instead applying Michigan common law regarding contracts.... Plaintiff makes no argument challenging any particular element for establishing the existence of a contract. Nor does plaintiff cite any authority for his contention that a neutral principle of law must be derived from a statute rather than from Michigan common law when examining a religious document.

NY Guidelines For Yeshiva Educational Requirements Are Struck Down

Yesterday a New York state trial court judge struck down the state's controversial Guidelines adopted last year aimed at  assuring that yeshivas, as well as other non-public religious and independent schools, comply with state law requiring them to offer an education substantially equivalent to that of public schools. (See prior related posting.) In Parents for Educational and Religious Liberty in Schools v. Rosa, (Albany Cty. Sup. Ct., April 17, 2019), the court held that the education commissioner did not comply with the notice and comment requirements of the State Administrative Procedure Act in adopting the Guidelines. Gothamist reports on the decision. [Thanks to Steven H. Sholk for the lead.]

8th Circuit Hears Arguments Over Title VII's Applicability To Sexual Orientation

Yesterday, the U.S. 8th Circuit Court of Appeals heard oral arguments in Horton  v.  Midwest Geriatric Management (audio of full oral argument). As reported by the National Law Journal, at issue is whether Title VII's prohibition on discrimination "because of sex" covers discrimination on the basis of sexual orientation. In the case, a health care specialist sued after his offer of employment was rescinded, claiming the rescission came because his employer discovered he was gay.

Rockland County Issues New Orders To Combat Measles Spread

Rockland County, New York health authorities are taking new steps to combat the spread of measles in the county.  As previously reported, on April 5 a New York state trial court judge held that the health department's declaration of a state of emergency was invalid. That decision is being appealed. Yesterday the County announced two new Orders by the Commissioner of Health, relying on different legal authority than the basis of the Order that was struck down.

The first new Order (full text) provides that anyone diagnosed with measles, or exposed to someone diagnosed with measles, must be excluded as a public health nuisance from places of public assembly for up to 21 days. Places of public assembly are defined broadly and include the homes of other persons.

The second new order requires schools in two zip code areas to file a notarized statement identifying unvaccinated students who, as required, have been excluded from school. Orangetown Daily Voice reports on these developments.

Morocco Names Chief Rabbinical Court Master, Ending 100 Years of Vacancies In the Post

Arutz Sheva reports that the government of Morocco, on behalf of the country's King Mohammed VI, has appointed Rabbi Yoshiahu Pinto to the post of Supreme Chief Rabbinical Court Master. The post has been vacant for last 100 years. In his position, Pinto will head the Moroccan Jewish community's kosher food supervision and will adjudicate religious and customary issues for the country's 10,000 Jewish residents, as well as for the many Jewish visitors to the country.

DOJ Settles RLUIPA Zoning Claims With Texas City

The Department of Justice announced yesterday that it has reached an agreement with the City of Farmersville, Texas to resolve allegations that the city violated RLUIPA when in 2017 it denied a Muslim organization approval for construction of a cemetery:

The settlement agreement resolves a lawsuit the United States filed today in the U.S. District Court for the Eastern District of Texas. After the City denied the Islamic Association’s application to build a religious cemetery, the United States opened an investigation of the City’s actions in September 2017. In August 2018, the United States notified the City that it had concluded that the City had violated RLUIPA and intended to file suit, and offered the City an opportunity to negotiate a resolution. In September 2018, the City and the Islamic Association entered into a separate agreement allowing for the approval of the cemetery and in December 2018, the City approved the Islamic Association’s application to develop the land as a cemetery.

Here is the complaint in United States v. City of Farmersville, Texas, (ED TX, filed 4/16/2019) filed yesterday as part of the negotiations.

Parents Sue Prominent DC Synagogue Over Child Abuse of Pre-Schoolers

Washington Post reports on a lawsuit filed Monday in D.C. Superior Court against a prominent Reform synagogue in D.C. Parents who brought the suit allege that at least seven children in the synagogue's preschool were sexually abused by a teacher for more than a year. The 239-page complaint filed against Washington Hebrew Congregation and Deborah Jensen, its director of early childhood education, does not include the teacher who is the alleged abuser as a defendant.  According to the Post:

The lawsuit states that the preschool teacher identified in the complaint was allowed to be alone with students despite city regulations requiring at least two adults to be present with toddlers in licensed child development centers. The school also did not properly train staff on ways to reduce the potential for child sexual abuse and to recognize signs that it may have happened, the lawsuit alleges....

Within a month of the man beginning work at Washington Hebrew, teachers and parents reported to Jensen incidents of inappropriate behavior, according to the lawsuit. The alleged behavior included being late returning students when he was alone with them and not responding to co-workers who were looking for him while he was with students.

The lawsuit states that when an adult reported potential abuse to Jensen, the director said that the person reporting the potential abuse had a “sick mind” and that the teacher would never abuse children. Jensen did not investigate the incidents further, did not restrict the teacher’s access to children and did not report the allegations to city officials, according to the lawsuit.

How Did Government Action On Gay Marriage Affect Attitudes?

Courthouse News Service reports on interesting research posted yesterday at the Proceedings of the National Academy of Sciences (PNAS):

Researchers compared trends before and after state-level legalization of gay marriage in each state.

The study found the local legislation reduced antigay bias, even though biases against lesbian and gay people were already decreasing. States which legalized same-sex marriage experienced decreases in homophobia at a sharper rate – declining at roughly double the previous rate – after legalization, according to the study.

For the 15 states that didn’t pass laws legalizing same-sex marriage before it became federal law, Hehman and his research team found a “backlash effect” where homophobia increased in those states in the immediate aftermath after the Supreme Court ruling – despite a decreasing trend in anti-gay bias prior to Obergefell.

PNAS, in assessing the significance of the research, says in part that it indicates "government legislation can inform attitudes even on religiously and politically entrenched positions."