Michigan Catholic Adoption Agency Gets Preliminary Injunction Protecting Its Policy on LGBTQ Couples

In Buck v. Gordon, (WD MI, Sept. 26, 2019), a Michigan federal district court issued a preliminary injunction to prevent the state from requiring that a Catholic adoption and foster care agency place children with same-sex couples. The agency currently refers such couples to other agencies.  As summarized by the court:

The State pays St. Vincent to place children with foster or adoptive parents certified as suitable by the State. St. Vincent has done that faithfully, regardless of whether the certified parents were opposite sex, same-sex, or unmarried couples. St. Vincent would like to continue doing so under existing and renewed contracts with the State.  

What St. Vincent has not done and will not do is give up its traditional Catholic belief that marriage as instituted by God is for one man and one woman. Based on that belief, St. Vincent has exercised its discretion to ensure that it is not in the position of having to review and recommend to the State whether to certify a same-sex or unmarried couple, and to refer those cases to agencies that do not have a religious confession preventing an honest evaluation and recommendation. In 2015, the Michigan legislature enacted legislation designed to protect that choice, and until January of 2019, the State defended the right of the State and St. Vincent to make that choice.

That changed when Defendant Attorney General Nessel took office. Leading up to and during the 2018 general election campaign, she made it clear that she considered beliefs like St. Vincent’s to be the product of hate. She stated that the 2015 law seeking to protect St. Vincent’s practice was indefensible and had discriminatory animus as its sole purpose. After her election, she ... put St. Vincent in the position of either giving up its belief or giving up its contract with the State. That kind of targeted attack on a sincerely held religious belief is what calls for strict scrutiny in this case and supports entry of a preliminary injunction preserving the status quo while the case is fully litigated.

Detroit News reports on the decision.

House Holds Hearing on Trump's "Muslim Ban"

On Sept. 24, two subcommittees of the House Judiciary Committee held a joint hearing on Oversight of the Trump Administration’s Muslim Ban. A video of the full 4-hour hearing, along with copies of the prepared testimony of numerous witnesses and letters from other interested organizations are all available on the Judiciary Committee's website. [Thanks to Michael Lieberman for the lead.]

"Church Autonomy" Requires Dismissal of Fired Faculty Member's Claims

In Garrick v. Moody Bible Institute, (ND IL, Sept. 25, 2019), an Illinois federal district court held that the "church autonomy" doctrine requires dismissal of claims by a former faculty member of a religious college that she was terminated because of her advocacy in favor of women serving as clergy members. The court said in part:

Garrick’s disagreement with Moody’s beliefs on the role of women in the ministry underlies the majority of Garrick’s allegations..... Under these circumstances, if the Court were to delve into the disputes posed by Garrick, it would impermissibly inject the auspices of government into religious doctrine and governance.

However the court said plaintiff could refile Title VII claims if they are untethered from her disagreements with Moody’s religious views.

Muslim Community Center's Claim of Discrimination In Permitting Process Must Proceed To Trial

In OT, LLC v. Harford County, Maryland, (D MD, Sept. 23, 2019), a Maryland federal district court refused to grant summary judgment to either side on almost all the claims by a Muslim group seeking permits to construct a community center. Plaintiffs contend that delays in approval were motivated by religious discrimination in violation of various constitutional and statutory provisions and imposed a substantial burden on their free exercise of religion in violation of RLUIPA.  The court said in part:

Importantly, “a government decision influenced by community members’ religious bias is unlawful, even if the government decision makers display no bias themselves....

Here, Plaintiffs contend that the sequence of events leading up to the County’s decision, departures from the County’s normal procedures, and contemporary statements by County decision-makers demonstrate that County Defendants’ actions were motived by the community’s anti-Muslim beliefs....

Conversely, County Defendants maintain that their decisions here were motivated by their desire to conform to existing practices and the County Code....

[T]he Court concludes that there is a genuine dispute of material fact as to the intent of the County Defendants....

The court similarly concluded that there was a genuine dispute of fact on whether the delay imposed a substantial burden on plaintiffs' right of religious exercise.

SPLC's "Hate Group" Designation For Christian Ministry For LGBT Views Is Protected By 1st Amendment

In Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., (MD AL, Sept. 19, 2019), an Alabama federal district court, in an interesting 141-page opinion, dismissed claims by a Christian television ministry against the Southern Poverty Law Center and Amazon's charitable program. As summarized by the court:

The lawsuit is based largely on Coral Ridge’s allegations that, because of its religious opposition to homosexual conduct, SPLC has designated it as a “hate group” and that, because of this designation, Amazon and AmazonSmile have excluded it from receiving donations through the AmazonSmile charitable-giving program.

Coral Ridge has three claims against SPLC: a state claim that its “hate group” designation is defamatory and federal claims for false association and false advertising under the Lanham Act, 15 U.S.C. § 1125. Coral Ridge has a single claim against the Amazon defendants: a federal claim that they excluded it from the AmazonSmile charitable-giving program based on religion, in violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq.

The ministry conceded that it was a "public figure" for purposes of its defamation claim Engaging in a lengthy discussion of the meaning of "hate group", the court rejected the ministry's claim because "An alleged defamatory statement is generally not provable as false when it labels the plaintiff with a term that has an imprecise and debatable meaning." The court went on to say that even if there were a commonly understood definition of "hate group",  the defamation claim should still be dismissed:

To find actual malice just because SPLC publicized a meaning of “hate group” that conflicted with the common understanding of the term would severely undermine debate and free speech about a matter of public concern. This is because, even if the term had achieved a commonly understood meaning, that meaning would not be fixed forever, but rather could evolve through public debate. To sanction a speaker for promoting a genuinely held dissenting view of the meaning of “hate group” would be akin to punishing a speaker for advocating new conceptions of terms like “terrorist,” “extremist,” “sexist,” “racist,” “radical

The court rejected the ministry's Lanham Act claims, finding that they are subject to the same heightened First Amendment standards, not the lower commercial speech standards.

The court also rejected the ministry's claim that Amazon violated the public accommodation provision of the 1964 Civil Rights Act in excluding it from its charitable giving program, saying in part:

Even if it were assumed that the Amazon defendants are places of public accommodation subject to Title II, seeking to receive donations through the AmazonSmile program does not qualify as a service, privilege, or advantage, etc. protected by the statute’s anti-discrimination prohibition. This is because the Amazon defendants limit the ability to receive such donations exclusively to 26 U.S.C. § 501(c)(3) organizations and therefore do not make that ability open to the public. Moreover, an alternative ground for dismissing the claim is that Coral Ridge has not plausibly alleged that the Amazon defendants discriminated against it based on religion.

The court concluded its opinion:

The court should not be understood as even suggesting that Coral Ridge is or is not a “hate group.” It has merely held that SPLC’s labeling of the group as such is protected by the First Amendment....  

SPLC issued a press release announcing the decision.

Break-Away Diocese Cannot Use Former Trademarked Names

In vonRosenberg v. Lawrence, (D SC, Sept. 19, 2019), a South Carolina federal district court,in a 73-page opinion, resolved a trademark dispute between The Episcopal Church and a break-away diocese.  As summarize by World Intellectual Property Review:

A US judge has ordered a former South Carolina diocese of the Episcopal Church to change its name, after concluding the breakaway group was infringing the Episcopal Church’s trademark-protected diocesan shield.

On Thursday, September 19, District Judge Richard Gergel issued an injunction against the breakaway diocese, ordering the group not to use nine trademarks associated with the Episcopal Church and ... The Episcopal Church in South Carolina, an affiliate of the national church.

Jewish Nursing Home Is Exempt From Title VII's Religious Discrimination Provision

In Shand v. Charles E. Smith Life Communities, (D MD, Sept. 23, 2019), a Maryland federal district court held that a Jewish nursing home, Hebrew Home of Greater Washington, is a religious organization for purposes of in Title VII. Under 42 U.S.C. § 2000e-1, religious organizations are exempt from the employment discrimination provisions of Title VII "with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [organization] ... of its activities."  In the lawsuit, a geriatric nursing assistant claimed the nursing home had failed to grant her request for a religious accommodation.

Death-Qualifying Jurors Does Not Infringe Their Free Exercise Rights

In Jackson v. State of Alabama, (AL Ct. Crim. App., Sept. 20, 2019), an Alabama state appeals court in a 135-page opinion dealing with numerous challenges upheld appellant's death sentence.  In one portion of the opinion (pp. 34-40), the court, relying extensively on precedent from other federal district courts, concluded that death-qualifying prospective jurors does not violate the jurors' free exercise of religion.

At the United Nations: Trump's Religious Liberty Forum; Report on Antisemitism; and Abortion Rights Concerns

Yesterday, on the first of his three day visit to the United Nations, President Donald Trump hosted a forum titled Global Call to Protect Religious Freedom. CBN and the New York Post reported on the event. Vice President Mike Pence opened the forum with remarks (full text) and an introduction of the President. President Trump, in an eleven-minute address (full text), said in part:

As we speak, Jews, Christians, Muslims, Buddhists, Hindus, Sikhs, Yazidis, and many other people of faith are being jailed, sanctioned, tortured, and even murdered, often at the hands of their own government, simply for expressing their deeply held religious beliefs.  So hard to believe.

Today, with one clear voice, the United States of America calls upon the nations of the world to end religious persecution.

Trump also announced that the U.S. is creating a coalition of U.S. businesses that will encourage the private sector to protect people of all faiths in the workplace. Others speakers at the forum included U.N. Secretary General António Guterres and Secretary of State Mike Pompeo (video of their remarks).

In another development at the United Nations, the Secretary General on Friday released an interim report (full text) on Combatting Antisemitism. The 19-page report, from the U.N.'s Special Rapporteur on Freedom of Religion or Belief, says in part:

The Special Rapporteur is alarmed by the increase in antisemitism in many countries driven by sources including individuals motivated by white supremacist and radical Islamist ideologies.... He is also concerned at the apparent increase in expressions of antisemitism emanating from sources on the political left as well as with discriminatory laws, regulations and policies of States.

Jerusalem Post covers the recently released report.

Also yesterday at the United Nations, world leaders reached agreement on the UN Political Declaration on Universal Health Coverage. (UN News report.) At the High Level Meeting on Universal Health Coverage, U.S. Health and Human Services Secretary Alex Azar spoke (full text of statement). On behalf of the U.S. and 18 other nations, he noted one area of concern:

The United States joins consensus on today’s political declaration, in recognition of the importance of better health for all, but we wish to state clearly that we disassociate from paragraph 68 of the Declaration.

We do not accept the terms “sexual and reproductive health” and “sexual and reproductive health and reproductive rights” in this Declaration....

These terms must always include language, which some countries blocked, to remind U.N. agencies that each nation has the sovereign right to implement related programs and activities consistent with their laws and policies, and that these terms in no way imply that there is an international right to abortion.

CNN reports on Azar's remarks.

Maryland's Conversion Therapy Ban Upheld

In Doyle v. Hogan, (D MD, Sept. 20, 2019), a Maryland federal district court dismissed free speech and free exercise of religion challenges to Maryland's ban on mental health professionals engaging in conversion therapy with minors. The court said in part:

Although § 1-212.1 regulates speech by prohibiting the use of language employed in the process of conducting conversion therapy on minor clients, it “does not prevent licensed therapists from expressing their views about conversion therapy to the public and to their [clients].” ... Most importantly, § 1-212.1 does not prohibit practitioners from engaging in any form of personal expression; they remain free to discuss, endorse, criticize, or recommend conversion therapy to their minor clients.... 

The Baltimore Sun, reporting on the decision, says the decision will be appealed.

Parent's Challenge To California's Boarding School Regulation Is Dismissed

In Teen Rescue v. Becerra, (ED CA, Sept. 19, 2019), a California federal district court dismissed a suit brought by the parent of a child attending River View Christian Academy, a Christian boarding school which is subject to the California Community Care Facilities Act.  The Act requires private alternative boarding schools to allow students full autonomy on maters of religion and sexual identity.  Seeking to represent all parents and guardians of students in the school, plaintiff alleges that subjecting the school to these requirement violates his religious free exercise and his parental rights. The court dismissed the complaint, saying in part:

Merely developing a plan to train RVCA staff in issues relating to the lesbian, gay, bisexual, and transgender communities does not invade the First Amendment rights of RVCA parents....

Similarly, preventing a community care facility from attempting to change the sexual orientation of its students is not an invasion of the parents’ First Amendment rights. The First Amendment gives Williams the right to believe and profess whatever religion he desires. If sending his child to an exclusively faith-based educational institution is an important part of Williams’ faith, there is nothing in the CCFA that prevents him from doing so.... Williams is free to enroll his child at a CCFA-exempt religious boarding school....

[T]he only injuries alleged here were suffered by Teen Rescue, not the parents. Williams failed to identify a concrete and particularized injury in fact under the Free Exercise Clause. Thus, Williams and the other RVCA parents lack standing to bring a claim under the First Amendment.

Recent Articles of Interest

From SSRN:

• Kevin H. Govern, Truth, Justice, and Reconciliation in the Wake of Clerical Sexual Abuse in America, (Baku State University Law Review, Volume 5, Issue 2, 2019).
• Jeremy J. Patrick, An Argument against Registration of Religions, (September 4, 2019).
• Dimitrios Kyritsis, The Limits of Neutrality in the Legal Philosophy of Stavros Tsakyrakis, (September 10, 2019).
• Marko Božić, Neither Secular State nor Laical Republic? Legal Position of Religious Communities in Communist Yugoslavia – Legal Framework Analysis, (University of Milano-Bicocca School of Law Research Paper No. 19-04 (2019)).
• Samuel Moyn, Christianity and Human Rights, (Rafael Domingo Osle and John Witte, Jr., eds., Christianity and Global Law: An Introduction, (Cambridge University Press), Forthcoming).
• Aishwarya Deb, Religion v. Reform: Role of Indian Judiciary vis-à-vis ‘Essential Religious Practices’ Test, (February 28, 2018).
• Mark C. Weber, Of Immigration, Public Charges, Disability Discrimination, and, of All Things, Hobby Lobby, (September 11, 2019).
• Paolo Cavaliere, Digital Platforms and the Rise of Global Regulation of Hate Speech, (Edinburgh School of Law Research Paper No. 2019/29 (2019).)
• Oscar I. Roos & Anita Mackay, A Shift in the United Nations Human Rights Committee's Jurisprudence on Marriage Equality? An Analysis of Two Recent Communications from Australia, (University of New South Wales Law Journal, Vol. 42, 2019).
• Norman I. Silber, Considering the Allure and Peril of Nonprofit Social Impact Bond Arrangements, (September 20, 2019).
• Albert Feuer, How Savings and Retirement Benefit Distributions May Prudently Be Used to Make Charitable Gifts, (53 No. 1 NYSBA TR. & EST. L. SEC. J. 7 (Spring/Summer 2019)).

Christian Student Group May Continue Suit Against University

In Intervarsity Christian Fellowship/ USA v. Board of Governors of Wayne State University, (ED MI, Sept. 20, 2019), a Michigan federal district court refused to dismiss a Christian student organization's free exercise, free speech and procedural due process claims against Wayne State University that refused to grant the group recognized student organization status. The University contended that the organization's requirements that its leaders profess the Christian faith violates the University's non-discrimination policy.  The court said in part:

[I]nsofar as religious organizations have a clear constitutional right to choose their own ministers without interference from the government, it is far from implausible that they may affirmatively assert a violation of such right in a 42 U.S.C. § 1983 action. Similarly, InterVarsity’s claim based on its right to internal autonomy in religious affairs may state a claim. The court will not dismiss the claims offered (novel though they may be) in Counts 1 and 2.

Counts 3 and 4 allege Free Exercise violations based on targeting of InterVarsity’s religious beliefs and Wayne State applying its policy in a way that it is not generally applicable.... There are more than enough factual allegations to cross the basic threshold of a valid claim. 

Detroit Free Press reports on the decision.

Justice Department Sues Michigan City Over Mosque Zoning

The Department of Justice announced yesterday that it has filed suit against the city of Troy, Michigan alleging that it has violated the Religious Land Use and Institutionalized Persons Act in denying zoning approval for a mosque to be built by Adam Community Center.  The complaint (full text) in United States v. City of Troy, Michigan, (ED MI, filed 9/19/2019), contends in part:

Troy specifically violated RLUIPA by: (a) imposing an unjustified substantial burden on Adam’s exercise of religion when it denied Adam’s variance requests, 42 U.S.C. § 2000cc(a)(1); and (b) requiring places of worship to abide by more onerous setback and parking restrictions than nonreligious places of assembly, id. § 2000cc(b)(1).

Detroit Free Press reports on the lawsuit.

6th Circuit Refuses To Allow Congress To Intervene To Defend FGM Ban

As previously reported, after the Department of Justice dropped its appeal of the district court's decision in United States v. Nagarwala which held the federal ban on female genital mutilation (18 USC Sec. 116(a)) unconstitutional under the Commerce Clause, the House of Representatives filed a motion to intervene in the case to defend the constitutionality of the statute. The Detroit Free Press now reports that the U.S. 6th Circuit Court of Appeals last week denied the House's motion to intervene and granted the Justice Department's motion to voluntarily dismiss the appeal.

Evangelizing Students Sue Over Restrictive Park Rules

A lawsuit was filed yesterday in an Illinois federal district court by Wheaton College students who are members of the Chicago Evangelism Team. The suit challenges limitations on the areas in Millennium Park in which they can engage in open air evangelism and distribute literature. The complaint (full text) in Swart v. City of Chicago, (ND IL, filed 9/18/2019), contends that park rules improperly restrict speech and distribution of free literature in a traditional public forum, violating students' free speech and free exercise rights. Chicago Tribune reports on the lawsuit.

Denial of Student Visa For Religious Trainee Is Upheld

In Ashby v. United States Department of State, (MD NC, Sept. 17, 2019), a North Carolina federal district court dismissed a suit challenging the State Department's refusal to issue a student visa to Colombian resident Jhonier Herrera, a "friend/ religious partner" of plaintiff Shon Ashby.  Ashby wished "to train and educate ... Herrera in the areas of business [and] religious training." The court rejected plaintiff's argument that visa rules favor other religious institutions such as religiously affiliated colleges. and that they substantially burden his exercise of religion.  The court said in part:

While Ashby might have plausibly alleged a disparate impact in favor of religious institutions, he fails to plausibly allege that any law or regulation is religiously targeted....

While Ashby may have a sincere desire to train Herrera on religious topics, this desire does not itself make Herrera’s presence necessary to Ashby’s religious exercise. Because Plaintiffs lack standing and fail to plausibly allege a substantial burden that prevents or inhibits them from practicing their religion, the RFRA claim will be dismissed.

Suit Against Catholic Hospital That Refused Transgender Procedure May Move Ahead

In Minton v. Dignity Health, (CA App., Sept. 17, 2019), a California state appellate court held that a trial court should not have dismissed a suit filed under the Unruh Civil Rights Act by transgender man whose doctor was barred by a Catholic hospital from performing a hysterectomy for treatment of his gender dysphoria.  The refusal was based on Ethical and Religious Directives for Catholic Health Care Services.  The court said in part:

[Plaintiff] alleges that the Act was violated ... when defendant cancelled the scheduled procedure at Mercy and Mercy’s president told Dr. Dawson that she would never be allowed to perform Minton’s hysterectomy at Mercy.... [T]hat refusal was not accompanied by advice that the procedure could instead be performed at a different nearby Dignity Health hospital. At that point in time ... Minton was denied full and equal access to health care treatment, a violation of the Unruh Act.

Allegedly in response to pressures brought to bear on defendant, within a relatively short period of time Ivie proposed use of the facilities at the alternative hospital. In doing so, and in making those alternate facilities available three days later, defendant undoubtedly substantially reduced the impact of the initial denial of access to its facilities and mitigated the damages to which Minton otherwise would have been entitled. However, the steps that were taken to rectify the denial in response to pressure from Minton and from the media did not undo the fact that the initial withholding of facilities was absolute, unqualified by an explanation that equivalent facilities would be provided at an alternative location.

The Recorder reports on the decision.

Third Circuit: Ban On Religious Bus Ads Violates 1st Amendment

In Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System, (3d Cir., Sept. 17, 2019), the U.S. Third Circuit Court of Appeals, in a 2-1 decision, held that the County of Lackawanna Transit System's ban on bus advertising that promotes religious views violates the First Amendment.  Plaintiff's proposed ad that featured the word "Atheists" along with the group's name and website was rejected under this policy. The majority said in part:

The 2013 policy’s ban on speech related to religion discriminates on the basis of viewpoint. And it is not a permissible limitation on COLTS’s forum, however that forum is characterized.

Judge Cowen dissenting said in part:

I do not believe that the transit system’s policy rises to the level of viewpoint discrimination. As the D.C. Circuit has recently explained, there is a critical difference between the prohibition of religious (and atheistic) perspectives on otherwise permissible subject matters—which constitutes viewpoint discrimination—and the exclusion of religion itself as a subject matter—which does not.

WNEP News reports on the decision.

Juvenile Court Can Override Mother's Religious Objection To Vaccinations

In In re K. Y-B, (MD Ct. Special Appeals, Aug. 30, 2019), a Maryland appellate court upheld a Juvenile Court's order allowing the Baltimore City Department of Social Services to consent to the routine vaccinations of an infant in its custody, despite Muslim religious objections to vaccination expressed by the child's mother. The child, now seven moths old, was ordered into shelter care two days after his birth.  The parents had a long history of abuse and neglect of their other children. In a lengthy opinion, the court held:

[A]  parent is free to believe as she wishes, but she cannot act on her beliefs in such a way as to pose a serious danger to the child’s life or health or impair or endanger the child’s welfare....

[T]he juvenile court did not abuse its discretion in concluding that the State’s compelling interest in protecting the health of the Child outweighs Mother’s belief that vaccination contravenes her faith.

Legal Newsline reports on the decision.