Nuclear Protesters' RFRA Defense Rejected

In United States v. Kelly, (SD GA, Aug. 26, 2019), a Georgia federal district court refused to dismiss indictments against seven Catholics who are members of the Plowshares Movement, an activist group opposed to nuclear weapons.  Defendants were indicted for trespass and destruction of government property after they broke into a highly secured Naval Submarine Base and in protest of nuclear weapons poured blood on the ground, hung banners and painted messages. Defendants contended that their actions were protected by the Religious Freedom Restoration Act. The court said:

Because Defendants' actions at Kings Bay were exercises of their sincerely held religious beliefs that they should "take action in opposition to the presence of nuclear weapons at Kings Bay,"... Defendants' actions at Kings Bay were engaged in for religious reasons and were thus "religious exercises" within the meaning of RFRA....

It went on, however:

The government has established that it has compelling interests in the safety of those on Kings Bay Naval Submarine Base, the security of the government assets housed there, and the smooth operation of the base.

NY Court Rejects Challenge To Vaccination Exemption Repeal

In F.F. on behalf of her minor children v. State of New York, (Albany Cty. Sup. Ct., Aug. 23, 2019), a New York state trial court judge rejected a class action challenge to recently enacted New York legislation that repeals the religious exemption to vaccination requirements for school children. The repeal was enacted in response to a measles outbreak earlier this year. The suit was brought by 55 families. The court refused to issue a preliminary injunction, finding that plaintiffs were unlikely to prevail on the merits of their free exercise, equal protection or compelled speech claims. The court concluded that the vaccination law was a neutral law of general applicability, and that the repeal was not action showing hostility to religious belief. The court concluded that plaintiffs did have a colorable argument that elevated scrutiny might be required under the hybrid rights theory, but that even if that is the case the state had a compelling interest in repealing the exemption:

Protecting public health, and children's health in particular, through attainment of threshold inoculation levels for community immunity from communicable diseases is unquestionably a compelling state interest....

Gothamist reports on the decision. (See prior related posting.)

Suit By Mennonite Group Over Lockers For Homeless Is Settled

The Rocky Mountain Collegian yesterday reported on the settlement of a lawsuit brought by the Fort Collins Mennonite Fellowship against the city of Fort Collins after City Council added restrictions on the Fellowship's locker program for the homeless.  The city limited the hours of operation and required constant supervision of the lockers during those hours.  The Fellowship sued claiming that the restrictions are unreasonable, vague, overly burdensome and prevent the church from practicing its religious obligation of helping those less fortunate. According to the paper's report, a negotiated settlement has been reached, but must still be approved by City Council at its Sept. 3 meeting:

The City will pay a negotiated amount of $60,000 to FCMF’s lawyers to cover some of the costs incurred during the lawsuit.

As for the locker program, access hours are expanded to 6 a.m. to 9 p.m., and a church representative no longer has to supervise during all hours of operation. Lockers will still be physically restricted outside those hours, but guests may access their belongings if a church representative unlocks the lockers for them. 

The church’s surveillance camera, installed early on in the program, will continue running 24/7. Footage will be retained for seven days.

Israel's Courts Wrestle With Sex-Segregated Cultural Events

In Israel, the controversy over gender-segregated events sponsored by municipalities continues. Times of Israel reports that on Sunday a Haifa district court ordered cancellation of a performance by ultra-Orthodox singers Mordechai Ben David and Motty Steinmetz which was to be open only to men. The ruling came in a suit filed by a women's rights group.  The court said in part:

The ultra-Orthodox public in Haifa is entitled to funding for cultural activities like every other public group, but when it comes to public money, there is a need to act in accordance with instructions from the attorney general and the government. It’s important to remember that in regards to the entrance to public places, there is a law that forbids discrimination in products, services and entrances to entertainment venues and public areas, 

Earlier this month, the High Court of Justice banned a similar sex-segregated performance in the city of Afula, but its ruling came too late to actually prevent the performance from going ahead. In response to the Afula case, Israel's Attorney General Avichai Mandelblit provided guidance on when municipal authorities can organize gender-segregated cultural events.  As reported separately by Times of Israel:

Mandelblit published guidelines for authorities saying that gender-segregation could be permissible if the separation were voluntary and desired by the target audience, men and women had equal conditions, and separation did not unduly impact those opposed to it.

“The greater the voluntary component, the less the difficulty in gender segregation, and when it comes to a completely voluntary segregation in which every person chooses his place without being directed, there is no difficulty,” Mandelblit said.

Amicus Briefs In SCOTUS Gay and Transgender Title VII Discrimination Cases Now Available

Dozens of amicus briefs have been filed with the U.S. Supreme Court and are now available from the SCOTUSblog case page in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. At issue is whether Title VII of the 1964 Civil Rightts Act prohibits discrimination against transgender people based on their transgender status or on a "sex stereotyping" theory.  The 6th Circuit held that discrimination on the basis of transgender status violates Title VII. (See prior posting.) the Supreme Court will hear oral arguments in the case on Oct. 8.

Similarly, numerous amicus briefs are available in Bostock v. Clayton County, Georgia, (consolidated with Altitude Express, Inc. v. Zarda) which will also be argued on Oct. 8. These cases raise the question of whether Title VII prohibits sexual orientation discrimination. The 2nd Circuit in Altitude Express  held that Title VII does cover such discrimination. (See prior posting.) In the Clayton County case, the 11th Circuit held that Title VII does not ban sexual orientation discrimination.

RLUIPA Allows Inmate To Grow Fist-Length Beard

In Sims v. Inch, (ND FL, Aug. 23, 2019), a Florida federal district court, in a 19-page opinion, extended the U.S. Supreme Court's 2015 holding in Holt v. Hobbs which allowed a Muslim inmate to grow a half-inch beard for religious reasons.  In the case decided last week, the district court held that RLUIPA similarly entitles a Muslim prisoner to grow a fist-length beard (and trim his mustache) when his religious requires it. The court concluded that "a fist-length beard can be accommodated as easily as a half-inch beard-- or nearly so." [Thanks to Glenn Katon for the lead.]

Recent Articles of Interest

From SSRN:

• Ashutosh A. Bhagwat, The Conscience of the Baker: Religion and Compelled Speech, (William & Mary Bill of Rights Journal, Forthcoming).
• Tipu Makhdoom, Politics of Religion in Pakistani Law, (January 1, 2016).
• Nancy J. Knauer, The Politics of Eradication and the Future of LGBT Rights, (Georgetown Journal of Gender and the Law, Vol. 21, No. 2, 2020).
• Elizabeth Katz, 'Racial and Religious Democracy': Identity and Equality at Mid-Century, Stanford Law Review, Forthcoming.
• Christian Lee Gonzalez Rivera, A Government by Men, Not Nature: A Natural Law Case for Limits on the Judicial Enforcement of Natural Law and Unenumerated Rights under the Constitution, 24 Trinity L. Rev. 1 (2019).
• Robert J. Miller, Nazi Germany and American Indians, (August 14, 2019).

From SmartCILP:

• Steven K. Green. The "Irrelevance" of Church-State Separation In the Twenty-First Century, [Abstract], 69 Syracuse Law Review 27-68 (2019).
• Mark Strasser, Masterpiece of Misdirection?, 76 Washington & Lee Law Review 963-1010 (2019).

From Academia.edu:

• Studia Gilsoniana, The State, Law, Religion, and Justice in Cicero’s The Republic and The Laws: An Aristotelian-Thomistic Interpretation, (Studia Gilsoniana 8, no. 3 (July –September 2019): 645 –680.
• Zachary Purvis, Religion, Revolution, and the Dangers of Demagogues: The Basel "Troubles" (Wirren) and the Politics of Protestantism, 1830-1833, (Church History 88, no. 2 (June 2019): 409–439, 2019).

8th Circuit Vindicates Wedding Videograhers' 1st Amendment Claims

In Telescope Media Group v. Lucero, (8th Cir., Aug. 23, 2019), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, held that the 1st Amendment protects wedding videographers who refuse on religious grounds to produce videos of same-sex weddings. Minnesota contended that the refusal violates two provisions of Minnesota's Human Rights Act.  Judge Stras, writing for the majority, said in part:

Minnesota’s interpretation of the MHRA interferes with the Larsens’ speech in two overlapping ways. First, it compels the Larsens to speak favorably about same-sex marriage if they choose to speak favorably about opposite-sex marriage. Second, it operates as a content-based regulation of their speech....

Laws that compel speech or regulate it based on its content are subject to strict scrutiny....

... [R]egulating speech because it is discriminatory or offensive is not a compelling state interest, however hurtful the speech may be.

The majority also concluded that because the state's action burdens religiously motivated speech, the hybrid rights doctrine requires strict scrutiny. The majority remanded the case to the district court for it to decide whether the videographers are entitled to a preliminary injunction.

Judge Kelley dissenting, said in part:

 ... [T]he court tries to recharacterize Minnesota’s law as a content-based regulation of speech, asserting that it forces the Larsens to speak and to convey a message with which they disagree. Neither is true. The Larsens remain free to communicate any message they desire—about same-sex marriage or any other topic—or no message at all. What they cannot do is operate a public accommodation that serves customers of one sexual orientation but not others. And make no mistake, that is what today’s decision affords them license to do.

Reuters reports on the decision.

Kentucky Supreme Court Hears Oral Arguments On Refusal To Print Pride Festival T-Shirts

On Friday, the Kentucky Supreme Court heard oral arguments (video of full arguments) in Lexington-Fayette Urban County Human Rights Commission v. Hands On Originals.  In the case, the Kentucky Court of Appeals concluded that a business which prints customized T-shirts was not in violation of a county's public accommodation law when it refused because of religious beliefs to print T-shirts for a local LGBT Pride Festival. (See prior posting.) WFPL News reports on yesterday's oral arguments. [Thanks to Tom Rutledge for the lead.]

3rd Circuit Upholds Pennsylvania Legislative Prayer Policy

In Fields v. Speaker of the Pennsylvania House of Representatives, (3d Cir., Aug. 23, 2019), the U.S. 3rd Circuit Court of appeals, in a 2-1 decision, upheld the invocation policy of the Pennsylvania House of Representatives.  The state's legislative chamber invites guest chaplains to open sessions with prayer, but excludes non-theists.  It also posts a sign asking visitors to rise during the prayer.  Judge Ambro, writing for the majority said in part:

A group of nontheists have challenged the theists-only policy under the Establishment, Free Exercise, Free Speech, and Equal Protection Clauses of our Constitution. As to the Establishment Clause, we uphold the policy because only theistic prayer can satisfy the historical purpose of appealing for divine guidance in lawmaking, the basis for the Supreme Court taking as a given that prayer presumes a higher power. For the Free Exercise, Free Speech, and Equal Protection Clauses, we hold that legislative prayer is government speech not open to attack via those channels.

The nontheists also challenge as unconstitutionally coercive the requests to “please rise” for the prayer. We hold that the single incident involving pressure from a security guard is moot. As for the sign outside the House chamber and the Speaker’s introductory request that guests “please rise,” we hold that these are not coercive.

Judge Restrepo, dissenting as to the exclusion of non-theists, said in part:

[B]y virtue of the fact that the history and tradition of legislative prayer in this country is thus devoid of any history of purposeful exclusion of persons from serving as chaplains based on their religions or religious beliefs, the Pennsylvania House’s guest-chaplain policy—which purposefully excludes adherents of Plaintiffs’ religions and persons who hold Plaintiffs’ religious beliefs from serving as guest chaplains—does not fit “within the tradition long followed in Congress and the state legislatures” and therefore violates the Establishment Clause.

[Thanks to Adam Bonin for the lead.]

6th Circuit Decides 2 Cases Growing Out of Kim Davis' Marriage License Refusals

In Ermold v. Davis, (6th Cir., Aug. 23, 2019), the U.S. 6th Circuit Court of Appeals held that sovereign immunity protects former Rowan County, Kentucky Clerk Kim Davis, and her successor in office, from suit for damages in their official capacity. However, the court went on, Davis may still be sued in her individual capacity, and she is not entitled to qualified immunity in that suit. The case grew out of the widely-publicized refusal of Davis to issue marriage licenses to same-sex couples, even after the U.S. Supreme Court's Obergefell decision. (See prior posting.) Two same-sex couples who were denied marriage licenses sued.

The 3-judge panel split 2-1 in their analysis of why Davis was not entitled to qualified immunity.  Judge Griffin, joined by Judge White, held that Obergefell clearly established a right for same-sex marriage and eliminated the need to use a tiers-of-scrutiny analysis in cases such as this.  Judge Bush held that a tiers-of-scrutiny analysis should be used, but that Davis' conduct does not survive even rational basis review.

In a related case, Miller v. Caudill, (6th Cir., Aug. 23, 2019), the U.S. 6th Circuit Court of Appeals affirmed the award of $222,695 in attorneys' fees to several same-sex couples who had obtained a preliminary injunction against Davis' policy, but litigated no further after Davis' deputy clerks agreed to issue the licenses.  The 6th Circuit concluded that plaintiffs qualified as a "prevailing party" entitled to attorneys' fees under 42 USC §1988, and that these fees should be paid by the state of Kentucky rather than Rowan County.  The Court said in part:

A win is a win—regardless of whether the winner runs up the score. To prevail, then, plaintiffs didn’t need to obtain duplicative relief in every form that they originally sought it. They wanted the opportunity to obtain marriage licenses in Rowan County, and the preliminary injunction gave them exactly that.

Louisville Courier Journal reports on this decision. [Thanks to Tom Rutledge for the lead.]

Deputy Sheriff Sues Over Refusal To Accommodate His Practice of the "Billy Graham Rule"

Christianity Today reports on a federal lawsuit filed last month by a deputy sheriff who was fired after he refused to train a female deputy because it would require him to spend significant amounts of time alone with her in his patrol car.  The suit, filed on July 31 in the Eastern District of North Carolina, says that deputy Manuel Torres, a Baptist deacon, practices the so-called "Billy Graham Rule" under which he will not be alone with a member of the opposite sex except for his wife.

First International Day For Victims of Anti-Religious Violence

Yesterday was the International Day Commemorating the Victims of Acts of Violence Based on Religion or Belief, as created by a United Nations Resolution (full text) adopted earlier this year. The U.S. Commission on International Religious Freedom issued a statement (full text), saying in part:

Commemorating victims of violence based on religion or belief is critical, but that’s only the beginning of the world’s work to achieve justice for the survivors of past tragedies, like the genocide of Yazidis, Christians and Shi’a Muslims in Iraq by ISIS...

Hung Jury In Pro-Life Tax Objector's Trial

KGW8 News reports that the federal court trial of an Oregon man, Michael Bowman, on misdemeanor charges of willful failure to file a tax return has ended in a mistrial.  Bowman has not filed a return since 1999 because he refuses to have any of his funds go toward funding abortions. Charges were filed against him in 2017. Bowman argues that the 1st Amendment, RFRA and the Oregon Constitution protect his decision on religious grounds to refuse to pay taxes. A jury could not reach a verdict after 11 hours of deliberation.

Challenge To California Order Requiring Health Plan Abortion Coverage Is Unsuccessful

In Missionary Guadalupanas of the Holy Spirit, Inc. v. Rouillard, (CA Ct. App., Aug. 6, 2019), a California state appellate court held that the state's Department of Managed Health Care did not violate the state Administrative Procedure Act when it notified seven health care service plans that they must cover abortions. The state statute does not require compliance with the rule-making process for a  regulation "that embodies the only legally tenable interpretation of a provision of law." A California statute requires insurance plans to cover "basic health care services." The court said in part:

We hold that an abortion is one of two medically necessary options for the treatment of a woman’s pregnancy. A pregnant patient may elect medical services necessary to deliver a baby, or to terminate the pregnancy. Because California law guarantees every woman the right to choose whether to bear a child or obtain an abortion, the only legally tenable interpretation of the law is that abortions are basic health care services, which health care service plans are required to cover.

This case did not present a question of whether requiring abortion coverage violates the religious freedom rights of the Catholic organization filing suit. Los Angeles Times reports on the decision.

9th Circuit Dismisses Suit After Prison Recognizes Humanism As Faith Group

In Espinosa v. Dzurenda,  (9th Cir., Aug. 22, 2019), the U.S. 9th Circuit Court of Appeals dismisse as moot a challenge to a prison’s failure to recognize Humanism as a Faith Group. While the appeal was pending, the prison changed its policy and permanently recognized Humanism on an equal basis with other faith groups.  Nevada Independent reports on the decision.

38 Abuse Victims Sue Over Yeshiva University High School's Failure To Supervise

Relying on New York's Child Victims Act which has created a one-year window for old child sex abuse cases to be filed, 38 men filed a lawsuit today against Yeshiva University High School and its parent organization, Yeshiva University, as well as various administrators of the schools. The suit alleges repeated sexual molestation of plaintiffs by a high administrator (who eventually became principal), a Judaic studies faculty member and a dorm counselor. The 120-page complaint (full text) in Twersky v. Yeshiva University, (NY Cty. Sup. Ct., filed 8/22/2019) alleges that the schools and their administrators were negligent in supervising and retaining the abusers, and in failing to provide a safe and secure environment for students. The Forward, reporting on the case, notes that a similar suit filed before enactment of the Child Victims Act was dismissed on statute of limitations grounds in 2014.

Catholic High School Sues Over Restrictions On Athletic Field Use

A Madison, Wisconsin Catholic high school has filed suit challenging the manner in which the city's zoning code is being applied to the school.  The complaint (full text) in Edgewood High School of the Sacred Heart, Inc. v. City of Madison, Wisconsin, (WD WI, filed 8/21/2019), alleges violations of RLUIPA as well as various other federal, state and local constitutional and statutory provisions. Because a master plan filed by the school in connection with the renovation of its athletic field stated that it would be used for team practices and physical education classes, zoning authorities contend that it cannot be used for athletic contests, even though the field had been used for nearly a century to host such games. The complaint alleges:

All of the City’s public high schools and the University of Wisconsin-Madison share the same zoning classification as Edgewood, yet the City is imposing these restrictions on Edgewood alone....

The City has treated Edgewood on less than equal terms with the non-religious institutions located and operating within the City’s Campus-Institutional District. 

 Wisconsin State Journal, reporting on the case, explains:

Edgewood’s attorneys have contended that [the master plan] wasn’t meant to be an exhaustive list of uses, while residents have suggested games were intentionally left out to allay neighbors frustrated with the increased use of the field since it was upgraded in 2015.

Residents of the surrounding Dudgeon-Monroe neighborhood have organized against Edgewood’s attempts to bring further improvements to the field — especially a 2017 plan that would have added stadium seating, lights, a sound system and permanent bathrooms — arguing that the field disrupts their quiet neighborhood. Many put signs in their yard reading, “No new stadium.”

3rd Circuit: Abortion Clinic Buffer Zone Challenge Remanded For Trial

In Turco v. City of Englewood, New Jersey, (3d Cir., Aug. 19, 2019), the U.S. 3rd Circuit Court of Appeals held that neither side was entitled to summary judgment in a challenge to Englewood's ordinance creating an 8-foot buffer zone around abortion clinics. The ordinance was enacted in response to aggressive anti-abortion protests that regularly occurred outside one clinic. In reversing the district court's grant of summary judgment to plaintiff and remanding the case for further proceedings, the appeals court said in part:

This record contains a multitude of contradicting factual assertions. Some facts suggest that the buffer zones imposed a significant restraint on the plaintiff’s ability to engage in constitutionally-protected communication. Others support Englewood’s position that the buffer zones hardly affected plaintiff’s ability to reach her intended audience. Some facts support plaintiff’s argument that the City had foregone less restrictive options to address the chaotic environment outside of the clinic. Others show that Englewood considered these options and reasonably rejected them or found them to be ineffective. In short, the record does not conclusively demonstrate that either party is entitled to summary judgment on the narrow tailoring claim.

North Jersey Record reports on the decision. [Thanks to Tom Rutledge for the lead.]

Cardinal Pell's Conviction Upheld

In Australia, the Victoria Court of Appeal has affirmed the conviction of Cardinal George Pell for sexual offenses.  The court has published a summary of the judgment in Pell v. The Queen, (Victoria Ct. App., Aug. 21, 2019) indicating that the court , by a 2-1 vote, dismissed the appeal. (Case page.) The court's summary says in part:

Cardinal Pell’s conviction and this appeal have attracted widespread attention, both in Australia and beyond. He is a senior figure in the Catholic Church and is internationally well known. As the trial judge, Chief Judge Kidd, commented when sentencing Cardinal Pell, there has been vigorous and sometimes emotional criticism of the Cardinal and he has been publicly vilified in some sections of the community. There has also been strong public support for the Cardinal by others. Indeed, it is fair to say that his case has divided the community.

Catholic News Service reports on the decision.