Church That Is Potential Trust Beneficiary Lacks Standing To Seek Independent Trustee

In In re Trust of Mary Baker Eddy, (NH Sup. Ct., June 14, 2019), held that a Christian Science church in Australia that is a potential beneficiary of a trust created under the will of Christian Science founder Mary Baker Eddy lacks standing to seek the appointment of an independent trustee. The New Hampshire Supreme Court concluded that the Australian congregation failed to show that it had a sufficient special interest in the trust to create standing. Sentinel & Enterprise News reports on the decision.

Parents Ask Court To Bar Publication of Data On Vaccination Rates In Individual Schools

Suit was filed last week in a Connecticut state trial court to prohibit the state Department of Public Health from continuing to post information on vaccination rates in individual schools. The complaint (full text) in Festa v. State of Connecticut Department of Public Health, (CT Super. Ct., filed 6/12/2019), says that publication of the information has led to "hateful and vitriolic statements regarding nonvaccinated students and parents" appearing on the Internet, creating mental and emotional distress to plaintiffs. Plaintiffs are parents of a student in a private school for children with autism and have claimed a religious exemption from vaccination.  Connecticut Mirror reports on the lawsuit.

Quebec Enacts Ban On Public Employees Wearing Religious Symbols

On June 16 in Canada, Quebec's Parliament passed and the Lieutenant Governor signed (legislative history) Bill 21 (full text as introduced; adopted amendments), a controversial law that prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. A grandfather clause exempts most current officials and employees. However it prohibits any other accommodations from being granted under the law. The new law also requires an extensive list of public employees to carry out their functions with their face uncovered. It also requires persons who seek public services to present themselves with their face uncovered if necessary for identification or security. Parliament invoked the "notwithstanding clause" of the Canadian Constitution to prevent constitutional challenges.

The new law additionally sets out broader principles of secularism for the province:

CHAPTER I: AFFIRMATION OF THE LAICITY OF THE STATE

1. The State of Québec is a lay State.

2. The laicity of the State is based on the following principles: (1) the separation of State and religions; (2) the religious neutrality of the State; (3) the equality of all citizens; and (4) freedom of conscience and freedom of religion.

The new law also amends Sec. 9.1 of Quebec's Charter of Human Rights and Freedoms to  to add "State laicity" as one of the permissible factors to consider in limiting freedoms.  Montreal Gazette reports on the legislation. Chatelaine summarizes the new law and its enactment:

After a long debate, the bill was passed at 10:30 p.m. on June 16 with support from the Parti Québécois. The Quebec Liberal Party and Québec Solidaire voted against the bill. Bill 21 formally bans teachers, police officers, judges and many others from wearing items like hijabs, turbans, kippas, and crucifixes in the course of their duties. It also doubles down on pre-existing legislation that requires citizens to uncover their faces when accessing public services like municipal transit and the legal system.

One day after the law was enacted, the National Council of Canadian Muslims and the Canadian Civil Liberties Union filed suit to declare the law invalid and to obtain an interim order staying its operation while the litigation is pending.  The complaint (full text) in Hak v. Attorney General of Quebec, (Quebec Super. Ct., file 6/17/2019), contends that the law exceeds the powers of the province, is impermissibly vague and contravenes the "internal architecture" of the Canadian Constitution. CTV News reports on the lawsuit.

Suit By Purchasers of Former PTL Club Properties May Move Forward

MorningStar Fellowship Church v. York County South Carolina, (D SC, June 17, 2019), involves a dispute between a South Carolina county and a large Christian evangelical church that had purchased properties once owned by PTL Club's Jim and Tammy Faye Bakker.  Jim Bakker resigned in the wake of a sexual scandal and was ultimately convicted and imprisoned for fraud. (Background.)  Plaintiff, MorningStar Fellowship, claims that the county prevented it from completing development of an $11 million building, known as the Tower, because of religious animus against the former owners, the Bakkers.  The development agreement between the county and MorningStar Fellowship called for demolition of the Tower if performance and payment bonds were not obtained within 180 days of approval of the site plan for the development. MoruningStar Claims that the county concealed its approval of the site plan in order to create a default.

The court dismissed on statute of limitations grounds MorningStar's claim for damages flowing from violation of its free exercise, due process and equal protection rights. However the court allowed plaintiff to move ahead on claims under the South Carolina constitution and the South Carolina Religious Freedom Act. It also allowed plaintiff to amend its complaint to add substantial burden and discrimination claims under the federal Religious Land Use and Institutionalized Persons Act.

Certiorari Denied In Contraceptive Mandate Case

The U.S. Supreme Court today denied review in Little Sisters of the Poor v. California, (Docket No. 18-1192, certiorari denied 6/17/2019). (Order List).  In the case, the U.S. 9th Circuit Court of Appeals in a 2-1 decision affirmed in part a preliminary injunction issued by a California federal district court against enforcement of the Trump Administration's Interim Final Rules expanding religious and moral exemptions to the Affordable Care Act Contraceptive Coverage Mandate. (See prior posting.) The Interim Rules have now been replaced by Final Rules. (See prior posting.)

Supreme Court Vacates and Remands Same-Sex Wedding Cake Case

The U.S. Supreme Court today granted certiorari, vacated the judgment of the Oregon Court of Appeals and remanded for further consideration the case of Klein v. Bureau of Labor & Industries, (Docket No. 18-547, 6/17/2019). (Order List). In the case, the Oregon Court of Appeals agreed with the state Bureau of Labor and Industries that Sweetcakes bakery violated the state's public accommodation law when it refused to design and create a wedding cake for a same-sex wedding. (See prior posting.)  The Supreme Court ordered reconsideration in light of its decision in Masterpiece Cakeshop last year.

Recent Articles of Interest

From SSRN:

• Reuben Guttman, Religion and Regulation, (Emory Corporate Governance and Accountability Review, Issue 6 Vol I (2019).
• John M. Breen & Lee J. Strang, Academic Freedom and the Catholic University: An Historical Review, a Conceptual Analysis, and a Prescriptive Proposal, (University of St. Thomas Law Journal, Vol. 15, No. 2, 2019).
• Andrew M. Koppelman, This Isn’t About You: A Comment on Smith’s Pagans and Christians in the City, (56 San Diego Law Review 393 (2019)).
• Nicholas Aroney, Can Australian Law Better Protect Freedom of Religion?, (Australian Law Journal, Vol. 19 (2019)).
• Elizabeth Sepper & Jessica L. Roberts, Sex, Religion, and Politics, or the Future of Healthcare Antidiscrimination Law, (19 Marquette Benefits & Soc. Welfare L. Rev. 217 (2018)).
• Sohail Wahedi, Freedom of Religion and Living Together, (California Western International Law Journal, Vol. 49, No. 2, 2019).
• Perry Dane, Ironies in the City: Reflections on Stephen Smith's Pagans and Christians in the City, (Journal of Catholic Legal Studies, 2019).
• Tally Kritzman-Amir & Java Ramji-Nogales, Nationality Bans, (University of Illinois Law Review, Vol. 2019, No. 2, 2019).
• Raphael Cohen-Almagor, Racism and Hate Speech – A Critique of Scanlon’s Contractual Theory, (First Amendment Studies, 2019).
• Elizabeth Bartholet, Homeschooling: Parent Rights Absolutism vs. Child Rights to Education & Protection, (Forthcoming, Arizona Law Review, Vol. 62, No. 1, 2020).
• Melanie Kalmanson & Riley Erin Fredrick, Finding Abortion in Equality After Obergefell, (New York University Journal of Legislation and Public Policy, Vol. 22, No. 2, 2019).
• Florence Ashley, Don’t Be So Hateful — The Insufficiency of Anti-Discrimination and Hate Crime Laws in Improving Trans Wellbeing, ((2018) University of Toronto Law Journal, 68(1), pp. 1–36).

From SSRN (Islam and Islamic Law)::

• Nikos Koumoutzis & Chrisroa Papastylianos, Human Rights Issues Arising from the Implementation of Sharia Law on the Minority of Western Thrace—ECtHR Molla Sali v. Greece, Application No. 20452/14, 19 December 2018 (May 24, 2019). Religions 2019, 10, 300).
• Akinyemi Akinniyi, Islamic Identity, (May 6, 2019).
• Leti Volpp, Protecting the Nation from 'Honor Killings': The Construction of a Problem, 34 Constitutional Commentary 133 (2019).
• Darin Johnson, The Problem of the Terror Non-State: Rescuing International Law from ISIS and Boko Haram, (Brooklyn Law Review , Vol. 84, No. 2, 2019).
• Dr. Ahmad Shaikh, In the Modern Culture the Protection of Women’s Rights and the Islamic Shariah Rules: A Critical Analysis, (April 29, 2019).
• Engy Abdelkader, The Victimization of Muslim American Women and the Challenges of Imperial Feminism in Comparative Context, (Oxford University Press (2020 Forthcoming)).
• Muhammad Ahmad, The Hanafi Legal Theory: Some Significant Issues, (Peshawar Islamicus, Vol. 8, Issue 2 (2017), pp 1-14).

From SmartCILP:

• Lawrence G. Sager & Nelson Tebbe, The Reality Principle, 34 Constitutional Commentary 171-192 (2019).
• Jonathan R. Cohen, Lawyers Serving Gods, Visible and Invisible, (53 Gonzaga Law Review 187-206 (2017/18).
• Lorraine K. Bannai, Korematsu Overruled? Far From It: The Supreme Court Reloads the Loaded Weapon, 16 Seattle Journal for Social Justice 897-911 (2018).
• Religious Freedom: Liberty, Legislation, and Litigation. Introduction by Student Symposium Editors Emily Gait, Stefani Roman; articles by Charlotte Garden, Michael A. Helfand, Adrienne Fulco, Christopher C. Lund. 50 Connecticut Law Review 849-985 (2018).
• Allan W. Vestal. Removing State Constitution Badges of Inferiority, 22 Lewis & Clark Law Review 1151-1198 (2018).
• Patrick J. McNulty & Joseph F. Moser, Absolution for Opting Out of the Contraception Mandate: Substantial Burden Gone Awry, 67 Drake Law Review 89-136 (2019).
• Samuel J. Levine, The Constitution as Poetry, 49 Seton Hall Law Review 737-754 (2019).
• Monastic Governance in South and Southeast Asia. Introduction by Ben Schonthal; articles by Matthew Walton, Aung Tun, Monica Lindberg Falk, Hiroko Kawanami, Ben Schonthal, Thomas Borchert, Susan M. Darlington, Michael R. Chladek, Gregory Kourilsky, Patrice Ladwig. 3 Buddhism Law &. Society 1-242 (2017-2018).

German Court Rejects City's Ban On"Burkini"

Breibart News today reports:

The ban on the sharia-compliant swimwear known as the “burkini” has been overturned by the higher administrative court in the German federal state of Rhineland-Palatinate after a judge decided the ban violated the constitution.

The ban originated in the city of Koblenz and began on the 1st of January but was challenged by a Syrian asylum seeker who claimed that she required the swimwear for religious reasons and also needed to use the swimming pool because she suffers from back problems...

 According to the Higher Administrative Court, the ban violated the German constitution’s requirement for equal treatment. The city had argued that the burkini made it impossible to know whether or not those wearing them suffered from any hygienic issues or diseases....

Suit In Canada Seeks To Move Election Day To Avoid Jewish Holiday

A lawsuit was filed last week in federal court in Canada seeking to move the upcoming federal election from Oct. 21 to Oct. 28.  According to Vos Iz Neias:

Shemini Atzeret comes out this year on Election Day, Oct. 21, which would prevent observant Jews from casting their ballots. Of the four advance polling days, three are on other Jewish holidays or Shabbat....

Chani Aryeh-Bain, the Conservative Party candidate for the Toronto-area district of Eglington-Lawrence, and voter Ira Walfish of York Centre, also a Toronto-area district, filed the suit claiming that the election date discriminates against observant Canadian Jews.

Aryeh-Bain is an observant Jew and therefore would not be able to campaign on Election Day, the lawsuit says....

[Thanks to Steven H Sholk for the lead.]

U.S. Catholic Bishops Adopt New Accountability Measures

The U.S. Conference of Catholic Bishops announced yesterday that during its June 11-14 General Assembly it has adopted additional measures to deal with clergy accountability for sex abuse:

The first vote, Protocol Regarding Available Non-Penal Restrictions on Bishops, passed by 212 to 4 with 1 abstention. This form of accountability provides protocols for imposing limitations on former bishops who were removed from office for grave reasons. It also empowers the USCCB president to restrict bishops removed or resigned for reasons related to sexual abuse or abuse of power.

A second vote, Acknowledging Our Episcopal Commitments passed by 217 to 1 with 2 abstentions. This accountability measure implements a bishop code of conduct, including the affirmation that the Charter for the Protection of Children and Young People is expanded to include bishops as well as priests and deacons.

The third vote, Directives for the Implementation of the Provisions of Vos estis lux mundi Concerning Bishops and their Equivalents, presents a plan for optimal implementation of Pope Francis’s recent Motu proprio in the United States, including an outline for lay involvement. It passed by 218 to 1 with 2 abstentions.

Yesterday, the body of bishops passed another bishop accountability reform, voting for the establishment of a Third-Party Reporting System for receiving confidentially, by phone and online, reports of possible violations by bishops of Vos estis lux mundi. The action item commits to activating the system no later than May 31, 2020.

Bauer Reappointed To USCIRF

In a press release issued this week, the U.S. Commission on International Religious Freedom announced that President Trump has reappointed Commissioner Gary L. Bauer to an additional two year term.

New York Ends Religious Exemption From Vaccination Requirements

Yesterday New York's Gov. Andrew Cuomo signed into law A2371 (full text) repealing Pub. Health Law Sec. 2164, subd. 9 which has provided a religious exemption from mandatory vaccination requirements. In a press release announcing Cuomo's signing of the bill, the Governor's office said in part:

The United States is currently experiencing the worst outbreak of measles in more than 25 years, with outbreaks in pockets of New York primarily driving the crisis. As a result of non-medical vaccination exemptions, many communities across New York have unacceptably low rates of vaccination, and those unvaccinated children can often attend school where they may spread the disease to other unvaccinated students. This new law will help protect the public amid this ongoing outbreak....

Governor Cuomo said. "While I understand and respect freedom of religion, our first job is to protect the public health and by signing this measure into law, we will help prevent further transmissions and stop this outbreak right in its tracks."

USA Herald reports on the new law.

Church Sues Over Its Removal As Polling Place

A suit was filed this week in a California federal district court by a Unitarian Church that was removed by election officials as a polling place because the church displayed two Black Lives Matter banners on its property and would not remove them for election day.  The complaint (full text) in Unitarian Universalist Church of Fresno v. Orth, (ED CA, filed 6/10/2019) contends that eliminating the church as a voting location violates its First Amendment free expression rights. Religion News Service reports on the lawsuit.

$4.1M Damages Awarded To Muslim Comedian Against Neo-Nazi Website

Religion News Service reports that in a suit by Muslim comedian Dean Obeidallah against the publishers of the neo-Nazi website the Daily Stormer, an Ohio federal district court awarded plaintiff $4.1 million in damages for defamation.  In Obeidallah v. Anglin, (SD OH, June 13, 2019), the court awarded damages implementing its earlier determination that defendants acted with actual malice when they falsely claimed that Obeidallah was part of ISIS and was the mastermind behind the 2017 bombing of a concert that killed 22 people. The court also issued an injunction directing defendants to forthwith remove from its website, Twitter and other social media accounts any reference to Obeidallah that describes him as a terrorist or a member of ISIS.

Hung Jury In Trial of Activist For Aiding Aliens

AP reports that a mistrial was declared Tuesday after an Arizona federal court jury was unable to reach a verdict in the prosecution of Scott Warren, a volunteer with the humanitarian group No More Deaths. Warren was charged with concealing and harboring aliens after he offered aid to two migrants near the U.S.-Mexico border. Warren's defenses included a claim that his actions were protected by the Religious Freedom Restoration Act. (See prior posting.) [Thanks to Stephanie Inks for the lead.]

District Court Nominee Withdraws Amid Controversy Over Brief In 1st Amendment Case

The Hill and the Kansas City Star report that Michael Bogren, a Trump judicial nominee for a seat on the federal district court for the Western District of Michigan, has withdrawn himself from consideration amid claims that he is anti-Catholic.  Three Republican members of the Senate Judiciary Committee indicated their opposition to Bogren because of a brief he filed in a 2017 case defending the City of East Lansing. Vendor Guidelines for East Lansing's Farmers' Market required vendors to comply with the civil rights ordinance as a general business practice. The Catholic owner of Country Mill Farms was denied a vendor permit because, while the Farm hosts weddings at its orchard, it refuses on religious grounds to host same-sex weddings.  (See prior posting.) In the brief, Bogren argued that the First Amendment does not create an exception for discrimination based on religious beliefs any more than it does for a member of the Ku Klux Klan refusing to serve African Americans.

Members of Bogren's law firm, Plunkett Cooney, wrote a letter (full text) on June 7 strongly defending Bogren, saying that criticism of him is misinformed. Michigan's two Democratic Senators supported Bogren.  But Missouri Republican Senator Josh Hawley, one of Bogren's chief critics, argued: "He could have given a vigorous defense to his client without stooping to calling this Catholic family equivalent to members of the KKK, comparing them to radical Islamic jihadists."

Court Says Conversion Therapy Provider Violated Injunction

In Ferguson v. JONAH, (NJ Super. Ct., June 10, 2019), a New Jersey state trial court judge held that the organization JONAH (Jews Offering New Alternatives for Healing), its founder and a counselor, have violated a permanent injunction issued in 2015. JONAH provided "conversion therapy" that it falsely claimed could change an individual from gay to straight.  Instead of appealing the decision, defendants entered a confidential settlement agreement and agreed to the issuance of a permanent injunction requiring JONAH to cease operations and liquidate. (See prior posting.) The court held that defendants' new organization, JIFGA (Jewish Institute for Global Awareness), is a mere continuation of JONAH. NJ.com  reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Lesbian Couple Has Standing To Challenge Grants To Catholic Foster Care Agency

In Marouf v. Azar, (D DC, June 12, 2019), the U.S. District Court for the District of Columbia held that a lesbian couple (as well as an organizational plaintiff) lack taxpayer standing to challenge federal grants to a Catholic non-profit organization which refuses to place unaccompanied refugee children for foster care with same-sex couples.  However, the court held that the couple does have individual standing to pursue their Establishment Clause, Equal Protection and Due Process challenges to the grants.  The court said in part:

According to the Federal Defendants, a federal agency cannot be held to account for a grantee’s known exclusion of persons from a federally funded program on a prohibited ground. That is an astonishing outcome. Surely, the government would not take this position if, say, Plaintiffs here were excluded from fostering a child based on their gender (both are women), national origin (Marouf is the daughter of Egyptian and Turkish immigrants), or religious faith (Marouf was raised a Muslim, Esplin a Mormon). Yet, despite conceding that there is no agency policy that prevents child placement with same sex couples ..., the Federal Defendants in this case wish to avoid the responsibility that comes with being good stewards of federal funds. They cannot do so.

Cert. Petition Filed In Challenge To Restrictions On Abortion Clinic Sidewalk Counseling

Last week (June 7), a petition for certiorari (full text) was filed in Price v. City of Chicago. In the case, the U.S. 7th Circuit Court of Appeals (full text of decision) upheld Chicago's floating "bubble zone" ban on sidewalk counseling outside abortion clinics. The 7th Circuit relied on a 2000 U.S. Supreme Court decision which has not been overruled. However the 7th Circuit said that the 2000 case has been "unsettled" by later Supreme Court decisions. Thomas More Society issued a press release announcing the filing of the petition seeking Supreme Court review.

Botswana Court Strikes Down Ban on Homosexuality

New York Times reports that yesterday Botswana's High Court struck down the country's ban on homosexuality.  The Court held unconstitutional Section 164 of the Botswana Penal Code that prohibits having "carnal knowledge ... against the order of nature."  Homosexuality was first outlawed in the late 1800's when the Botswana was the British colony of Bechuanaland.