Suit Says Social Worker Sexually Assaulted Children At Jewish Social Service Agency

A suit was filed one day before the expiration of the two-year look-back period under New York's Child Victims Act by two anonymous plaintiffs against a clinical social worker and several Jewish organizations. (Full text of 75-page complaint in Doe v. Klar, (NY County Sup. Ct., filed 8/13/2021)).  The Forward describes the lawsuit:

A rabbi sexually assaulted children while he was supposed to be treating them for mental health issues, and the prominent Jewish institutions he worked for covered it up, claims a lawsuit filed in New York August 13.

Rabbi Yaakov David Klar allegedly carried out his abuse while he was a social worker at Chai Lifeline, a national Jewish social services provider, and as a teacher at the Pupa Cheder in Monsey, N.Y....

Klar allegedly began years of abuse of the plaintiff in 2002, when the lawsuit alleges the defendants already knew or should have known of the rabbi’s predatory history....

Only later did they enter a “secret arrangement” to allow Klar to leave quietly — and they never reported his suspected actions to the authorities, according to the lawsuit.

Recent Articles of Interest

From SSRN:

• Helen M. Alvare, Church Autonomy after Our Lady of Guadalupe School: Too Broad? Or as Broad as it Needs to Be?, (Texas Review of Law & Politics, Vol. 25, pp. 319-375, 2021).
• Richard Osborne, A Country Divided: Refining the Ministerial Exception to Balance America’s Diversity, (March 1, 2021).
• L. Joe Dunman, Religion in the Law: An Open Access Casebook, (1st Ed., August 11, 2021).
• William Smiley, The Other Muslim Bans: State Legislation Against "Islamic Law", (Journal of Islamic Law, Vol. 1, No. 1, 2020).
• Ian Murray, Donor Advised Funds: What Can North America Learn from the Australian Approach?, ((2020) 6 Canadian Journal of Comparative and Contemporary Law 260).
• Tobias Scheunchen, Lost in Translation: Mahr-Agreements, US Courts, and the Predicament of Muslim Women, (Journal of Islamic Law, Vol. 2, No. 1, 2021).

From SSRN (Non-U.S. Law):

• Mohd Rameez Raza & Raj Shekhar, The Hagia Sophia Decision: Does It Stand the Test of 'Rule of Law'?, (Oxford Political Review 2020).
• Sohaira Siddiqui, Triple Divorce and the Political Context of Islamic Law in India, (Journal of Islamic Law, Vol. 2, No. 1, 2021).
• Suman Acharya, Religious Philosophy: Islamic Legal System, (July 22, 2021).
• Shailendra Kumar & Sanghamitra Choudhury, Decoding the Elements of Human Rights from the Verses of Ancient Vedic Literature and Dharmaśāstras: An Exegetical Study, (Literature 2021).
• Hamidin Hamidin & Alfitri Alfitri, Safeguarding Women’s Constitutional Rights in the Judicial Reviews of Marriage Law on the Minimum Married Age Limit, (Mazahib Jurnal Pemikiran Hukum Islam 20, no. 1 (2021): 103-142).
• Mohd Rameez Raza & Shereen Abdin, The Law of Blasphemy vis-a-vis the Modern World: Violation of Freedom of Speech and Expression, (Manupatra 2020).
• Mohd Rameez Raza & Raj Shekhar, Sexual Minorities ‘The Invisibles’: Social Morality vs Constitutional Morality,  (International Conference on Contemporary Issues in Indian Legal System 2020, Geeta Law Institute).
• Shahabuddin Shahab, The Effect of Forgiveness in Crime on Body Parts or Organs in the Jurisprudence of Islamic Religions, (International Journal of Advanced Studies of Scientific Research, Vol. 8, No. 1, 2021).
• Shahbaz Akhtar, Nature of Islamic Law, (July 18, 2021).

From SmartCILP and elsewhere:

• Harvard Journal of Islamic Law, Vol. 2, No. 1 (Spring 2021) (includes Roundtable on Islamic Law & Legal History).
• Symposium: Is This a Christian Nation?, Roger Williams Law Review, Vol. 26, No. 2 (Spring 2021).
• Mark Weston Janis, Connecticut 1818: From Theocracy to Toleration, 52 Connecticut Law Review 1701-1710 (2021).
• Victor I. Vieth & Pete Singer, Wounded Souls: The Need for Child Protection Professionals and Faith Leaders to Recognize and Respond to the Spiritual Impact of Child Abuse, 45 Mitchell Hamline Law Review 1213-1234 (2019).

School Board Cannot Remove Teacher's Suit To Federal Court

In Vlaming v. West Point School Board, (4th Cir., Aug. 20, 2021), the U.S. 4th Circuit Court of Appeals held that a school board defendant cannot remove a former teacher's suit against it to federal court.  The teacher filed suit in a Virginia state court after being fired for refusing to call a transgender student by pronouns consistent with the student's gender identity. The teacher asserted only state law claims. At issue in the case were two federal statutory provisions on removal of cases to federal court. As to one of those provisions, the court's majority opinion said in part:

28 U.S.C. § 1443, the civil rights removal statute ... provides for removal of a civil action ... commenced in state court “[f]or any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.” The Board argues ... they either fired Vlaming in order to comply with Title IX, or they refused to permit Vlaming to discriminate, or to grant him an exception to their policies because of his religious beliefs, on the grounds that doing so would be inconsistent with Title IX. Precedent, however, precludes Title IX from being the type of “law providing for equal rights” referenced in § 1443(2).

The Supreme Court has limited the meaning of a “law providing for equal rights” in § 1443 to only those concerning racial equality....

Judge Floyd filed a concurring opinion, disagreeing in part with the reasoning of the majority. [Post revised to reflect concurring opinion.]

Illinois Appeals Court Upholds $220,000 Damage Award For Denying Transgender Employee Correct Restroom Access

In Hobby Lobby Stores, Inc. v. Sommerville, (IL App., Aug. 13, 2021), an Illinois state appellate court upheld the Illinois Human Rights Commission's award of $220,000 in damages against Hobby Lobby for violating the Illinois Human Rights Act by refusing to allow a transgender woman employee to use the woman's restroom. The court said in part:

Hobby Lobby argues that the Commission misunderstood the Act, improperly conflating “sex” with “sexual orientation.” Specifically, it argues that it limited access to its bathrooms based on sex, not gender identity, and that the Act permitted it to do so. It also argues that “sex” means “reproductive organs and structures,” and thus Sommerville (who has not had a surgical vaginoplasty or labiaplasty) is of the male sex...

Hobby Lobby contends that an individual's “sex”—the status of being male or female—is an immutable condition. However, the plain language of the Act does not support this conception. There is simply no basis in the Act for treating the “status” of being male or female as eternally fixed....

[T]he record establishes that Sommerville's sex is unquestionably female. She has undergone years of effort and expense to transition, and she appears to be and comports herself as a woman. Of even greater significance, her status of being female has been recognized not only by the governments of this state and the nation but also by Hobby Lobby itself, all of which have changed their records to acknowledge her female sex....

Reason reports on the decision.

Religious Objections To Medical College's COVID Vaccination Requirement Upheld

In Magliulo v. Edward Via College of Osteopathic Medicine, ((WD LA, Aug. 17, 2021), a Louisiana federal district court issued a temporary restraining order barring a medical college from conditioning plaintiff students' enrollment on their receiving a COVID-19 vaccination. The students had requested an exemption from the college's requirements for religious reasons-- they believed the vaccine was derived from aborted fetal tissue. The college would grant the exemption only if the objecting students complied with extensive restrictions. The court held that Louisiana statutes allow students to assert religious or philosophical objections to the vaccine requirement. It also concluded that the refusal to exempt religious objectors violates the free exercise clause of the Louisiana constitution and the Louisiana Preservation of Religious Freedom Act.  The Louisiana Attorney General had backed the students' position in the case, and the AG's Office issued a press release discussing the decision.

Expedited Asylum Procedures Proposed By DOJ and DHS

The Department of Homeland Security and the Department of Justice announced yesterday that they are publishing a 140-page Notice of Proposed Rulemaking (NPRM) (full text) to expedite handling of asylum claims for individuals encountered at or near the border. Asylum may be granted to a noncitizen who shows past, or a well-founded fear of future, persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The NPRM summarizes the proposed changes:

Under the proposed rule, such individuals could have their claims for asylum, withholding of removal ...  or protection under ... the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ... initially adjudicated by an asylum officer within U.S. Citizenship and Immigration Services.... [I]ndividuals who are denied protection would be able to seek prompt, de novo review with an immigration judge....

5th Circuit En Banc Upholds Texas "Dismemberment Abortion" Ban

In Whole Woman's Health v. Paxton, (5th Cir., Aug. 18, 2021), the U.S. 5th Circuit Court of Appeals, sitting en banc, by a vote of 9-5 (with 3 judges recused), upheld a Texas law enacted in 2017 that bans abortions performed through the standard dilation and evacuation procedure-- a procedure that the Texas law terms "dismemberment abortions." The majority opinion joined by 7 of the 9 judges said in part:

SB8 refers to the prohibited method as "live dismemberment" because doctors use forceps to separate, terminate, and remove the fetus. SB8 requires doctors to use alternative fetal-death methods. The district court declared SB8 facially unconstitutional. It held that SB8 imposes an undue burden on a large fraction of women, primarily because it determined that SB8 amounted to a ban on all D&E abortions.... Instead, the record shows that doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use.....

The safety, efficacy, and availability of suction to achieve fetal death during abortions in weeks 15 and 16 combined with the safety, efficacy, and availability of digoxin to do the same in weeks 18–22 mean that the plaintiffs have utterly failed to carry their heavy burden of showing that SB8 imposes an undue burden on a large fraction of women in the relevant circumstances.

Chief Judge Owen and Judge Ho each filed a concurring opinion. Judge Dennis filed a dissenting opinion that was joined by Judges Stewart and Graves, saying in part:

Today, in a Sisyphean return to form, our court upholds a Texas law that, under the guise of regulation, makes it a felony to perform the most common and safe abortion procedure employed during the second trimester. In an opinion that fortunately lacks fully binding precedential effect, the en banc plurality disregards the two major lessons of June Medical. First, it ignores on-point Supreme Court precedent in multiple ways....  [T]he Supreme Court has already decided this exact case, holding that a Nebraska law was unconstitutional because it could be interpreted to be the sort of ban that the Texas statute openly embodies.... Second, ... the en banc plurality fails to defer to the district court’s well-reasoned and well-supported factual findings regarding the burdens and benefits associated with the Texas law... 

Judge Higginson filed a separate dissenting opinion, joined by Judge Costa. Texas Tribune reports on the decision.

Challenge To Superseded COVID Order Dismissed As Moot

In Solid Rock Baptist Church v. Murphy, (D NJ, Aug. 16, 2021), a New Jersey federal district court dismissed as moot a challenge to a now superseded COVID-19 executive order by the governor of New Jersey limiting the number of people who could attend an indoor religious service. The court also held it will abstain under the Younger doctrine.

Amended Complaint Allowed In Suit Over Transcendental Meditation In Schools

In Separation of Hinduism From Our Schools v. Chicago Public Schools, (ND IL, Aug. 17, 2021), an Illinois federal district court granted in part plaintiffs' motion to amend their complaint in a suit challenging Chicago Public Schools' "Quiet Time" program which was led by a Transcendental Meditation instructor. In a previous opinion, the court dismissed claims against a private foundation and the University of Chicago which helped implement the program. (See prior posting.) Now the court holds that plaintiffs have sufficiently alleged that the private foundation and the University were joint participants with the state to be state actors who can violate constitutional rights. However the court accepts the University's defense that its participation was not part of an official policy or custom-- a necessary component of liability under 42 USC §1983. The court also held that the complaint adequately states claims against the University, the foundation and the public schools under the Illinois Religious Freedom Restoration Act.

Court Sorts Out Standing Issues And Substantive Challenges To Vermont Town Tuition Program

In Valente v. French, (D VT, Aug. 16, 2021), students and their parents sued various school agencies and districts challenging their policy of refusing to pay tuition to religious schools under Vermont's Town Tuition Program. Under that program, school districts that do not operate their own high schools pay tuition for students to attend other schools. However, sectarian schools are excluded unless there are adequate safeguards against the use of the tuition funds for religious worship. The court held that plaintiffs have standing to sue various state agencies, having alleged that they have not taken appropriate steps to prevent school districts from discriminating against religion in the Town Tuition Program. However the court found no standing to sue supervisory unions made up of local school boards which have no responsibility for the tuition payments.

The court went on to hold that plaintiffs have adequately alleged an equal protection claim and (except for one plaintiff) a free exercise claim against the state defendants, but have not adequately alleged an Establishment Clause or substantive due process claim. Eleventh Amendment defenses were also rejected.

In a companion case, A.H. v. French, (D VT, Aug. 16, 2021), students, parents and the Catholic Diocese sue challenging the refusal to allow Rice Memorial High School, a Catholic high school, to participate in the Town Tuition Program. The court held that the parents have standing to sue the state Agency of Education and its secretary, saying that plaintiffs allege these defendants set policy and directed school districts to exclude religious schools and their students. It also rejected 11th Amendment defenses by the head of the Agency. However the court held that the Diocese of Burlington lacks standing to assert the interests of parents who wish to send their children to Rice.

Suit Challenges Arizona's New Abortion Law

Suit was filed in an Arizona federal district court yesterday challenging two provisions in an abortion law enacted earlier this year. At issue are (1) a provision (the Reason Ban) which bans abortion whenever the providing physician knows that the abortion is due to “a genetic abnormality” and (2) a provision (the Personhood Provision) which requires Arizona laws to be interpreted to give all fertilized eggs, embryos, and fetuses the same rights as other persons. The complaint (full text) in Isaacson v. Brnovich, (D AZ, filed 8/17/2021), alleges in part:

Any reading of [the Reason] ban violates the Due Process Clause of the Fourteenth Amendment and decades of binding precedent confirming that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”...

Because the Personhood Provision fails to provide adequate notice of prohibited conduct and invites arbitrary and discriminatory enforcement..., it is unconstitutionally vague.

The complaint also alleges that the accomplice liability provisions infringe on physicians' speech rights. Center for Reproductive rights issued a press release announcing the filing of the lawsuit.

New York Child Victims Look-Back Period Ends

As reported by the New York City Patch, the two-year look-back period that allowed otherwise untimely suits to be filed under New York's Child Victims Act expired last Friday, Aug. 13. As of Aug. 9, some 9,241 cases had been filed during the look-back window. (Child USA Report).

Recent Articles of Interest

From SSRN:

• Cameron M. Fathauer, Freed Unto Liberty: A Call to Re-Treasure American Liberty, (February 4, 2020).
• Hershey H. Friedman, The Talmudic Principle of Going Beyond the Requirements of the Law: The Cornerstone of Ethics, (July 13, 2021).
• Nadia N. Sawicki, Tort Law Implications of Compelled Physician Speech, (Indiana Law Journal, Forthcoming).
• Cameron M. Fathauer, Freed Unto Liberty: A Call to Re-Treasure American Liberty (February 4, 2020).
• Intisar A. Rabb, Islamic Legal Canons as Memes, (Journal of Islamic Law, Vol. 2, No. 1, 2021).
• Intisar A. Rabb, Methods and Meaning in Islamic Law: Introduction, (Journal of Islamic Law, Vol. 2, No. 1, 2021).
• Didin Samsudin & Fajar Kusnadi Kusumah Putra, Influence of Experiential Marketing on Customer Loyalty in Shariah-Compliant Hotel, (Journal of Indonesian Tourism, Hospitality and Recreation, 3(2), p.117-129 (2020)).

Court Allows Equal Protection Challenge To Zoning Law To Proceed

In Orthodox Jewish Coalition of Chestnut Ridge v. Village of Chestnut Ridge New York, (SD NY, Aug. 13, 2021), a New York federal district court granted plaintiff's motion to reconsider its March 31, 2021 decision that dismissed an equal protection challenge to the Village's former zoning law. The court now held that Equal Protection and state law claims by three Orthodox synagogues and three individual plaintiffs may proceed, saying in part:

Plaintiffs argue that “the Court erred in holding that [Plaintiffs] were required to allege that . . . facially discriminatory laws were enacted with a discriminatory purpose.” ... They are correct.

Mississippi Supreme Court Rejects Claims By Pastor's Former Wife Against His Church On Unusual Facts

In Woodard v. Miller, (MS Sup. Ct., Aug. 12, 2021), the Mississippi Supreme Court applied the ecclesiastical abstention doctrine in an unusual context.  Plaintiff Kim Miller married Andrew Johnson when he was a seminary student studying to be a United Methodist Church minister. Church officials encouraged Miller to give up her higher education plans to serve as a minister's wife, and told her that the church would provide for her needs. After more than 20 years of marriage, Miller filed for divorce. She took this step after Johnson confessed to her that he was gay, had contracted HIV from an extramarital affair, and had infected Miller.

Miller sued her ex-husband, the United Methodist Church Conference and a fellow-pastor asserting a variety of claims. She asserted that "had the conference and the fellow minister followed United Methodist policy and procedure, they would have discovered Johnson’s behavior and remedied it or warned Miller before she contracted HIV."

The court dismissed plaintiff's claims against the church, saying in part:

[U]nder the First Amendment, for Miller’s claim to proceed against MUMC, the claimed assumed duty cannot be religious or ecclesiastical in nature.... And we are hard-pressed to see how Miller’s claim would hold up if it were against a non-religious employer. Though Miller personally interpreted MUMC’s promise to provide for her and her family if she gave up her own career goals as both an assurance of sufficient financial remuneration and a guarantee against her husband committing adultery, such an interpretation would be considered wholly unreasonable if the promise was being made by, say, a law firm, a hospital, or a technology company. In other words, Miller interpreted the assurances of MUMC ministers as including guaranteeing the success of her marriage and family life precisely because her fiancé was going into church ministry. Thus, her claim fails because the religious nature of his employer cannot be the basis for recognizing a legal duty....

The court dismissed Miller's claim against the fellow-pastor because: "a fiduciary duty cannot arise merely from a minister-church member relationship."

Finally, the court, over the dissent of two judges allowed plaintiff to move ahead on her claims against her former husband, rejecting his defense that the claims against him were released as part of the divorce settlement. The majority held that Johnson had waived this defense.

Court Dismisses Challenge To Contraceptive Mandate Exemption for Notre Dame

In Irish 4 Reproductive Health v. U.S. Department of Health and Human Services, (ND IN, Aug. 12, 2021), an Indiana federal district court dismissed a suit challenging rules, as well as a settlement agreement, exempting Notre Dame University from the contraceptive coverage mandate of the Affordable Care Act. The court said in part:

With the Rules having been upheld by the Supreme Court, I can’t really say that the Settlement Agreement itself is causing injury to the Plaintiffs because the same result the Settlement Agreement provides Notre Dame (exempting it from the contraceptive coverage mandate) is equally provided by the Rules (the validity of which were upheld). The challenge to the Settlement Agreement “is not ripe for adjudication [because] it rests upon contingent future events that may not occur” - i.e., the speculative possibility that the exemption might be invalidated at some point in the future.

The court, relying on the Supreme Court's Little Sisters of the Poor decision and a Massachusetts federal district court case, also held that the rules creating religious exemptions from the contraceptive coverage mandate do not violate the Establishment Clause.

Fraud Claim Against Catholic Diocese Dismissed Under Ecclesiastical Abstention Doctrine

In Doe v. Roman Catholic Diocese of Dallas, (TX App, Aug. 11, 2021), a Texas state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a suit alleging that a Catholic diocese committed fraud when it failed to follow its own internal policies for responding to clergy sex-abuse claims after plaintiff reported that he had been sexually abused by a Diocesan priest. The court said in part:

[A] court would have to evaluate whether ... the Dallas Diocese implemented its policy under the canonical meanings of "minor," "sexual abuse," and "vulnerable adult." This would necessitate a secular investigation into the Dallas Diocese's understanding of those terms.... Such an inquiry would cause a court to evaluate whether the Dallas Diocese properly applied canon law and "interlineate its own views" of canonical terms....

Furthermore, in the context of a religious organization's choices in investigating and regulating its formal leaders and people ordained for religious duties, "any investigation would necessarily put to question the internal decision making of a church judicatory body."...

New Hampshire Enacts Law To Protect Churches In Future Emergencies

On Tuesday, New Hampshire Governor Chris Sununu signed HB542, the New Hampshire Religious Liberty Act (full text). The law provides in part:

[D]uring a state of emergency, the state government shall permit a religious organization to continue operating and to engage in religious services to the same or greater extent that other organizations or businesses that provide essential services that are necessary and vital to the health and welfare of the public are permitted to operate.

Under the statute, the state may still require religious organizations to comply with neutral health, safety, or occupancy requirements, but must meet a strict scrutiny test if the requirement imposes a substantial burden on a religious service.

AP reports on the new law, which takes effect in 60 days.

Ministerial Exception Requires Dismissal Of Title VII Claims By Catholic School Guidance Counselor

In Roman Catholic Archdiocese of Indianapolis, Indiana v. Roncalli High School, Inc., (SD IN, Aug. 11, 2021), an Indiana federal district court  held that the ministerial exception doctrine bars Title VII retaliation, discrimination and hostile work environment claims as well as state law claims of interference with contractual and employment relationships in a suit brought by the former Co-Director of Guidance at a private Catholic high school. The school refused to renew its contract with Lynn Starkey, who had been employed by the school for nearly forty years, after the school learned of Starkey's same-sex marriage. The court said in part:

To be sure, the court does not mean to say that divergent understandings of the religious nature of an employee's role should always be resolved in the religious employer's favor. For example, it would be difficult to credit a religious employer's claim that a custodian or school bus driver qualifies as a minister simply because the employer said so.... But this case concerns the Co-Director of Guidance ... [who] performed "vital religious duties" at Roncalli.... Employees in that position met with every student throughout the year and discussed some of the most sensitive issues in a young person's life.... Roncalli expressly entrusted Starkey with the responsibility of communicating the Catholic faith to students and fostering spiritual growth.

Becket issued a press release announcing the decision.

10th Circuit: Muslim Inmate Can Move Ahead On Claim That He Was Forced To Shave Beard

In Ashaheed v. Currington, (10th Cir., Aug. 10, 2021), the U.S. 10th Circuit Court of Appeals reversed a Colorado federal district court's dismissal of a Muslim inmate's free exercise and equal protection claims. The Colorado corrections center requires inmates to shave their beards at intake but provides an exemption for inmates who wear beards for religious reasons. Plaintiff says he repeatedly asserted this exemption, but that Defendant-- motivated by anti-Muslim animus-- forced him to shave.

The court rejected Defendant's qualified immunity defense, saying: "The constitutional violation alleged here was clear beyond debate." The court concluded in part:

Sergeant Currington’s refusal to follow the Center’s beard-shaving policy and grant Mr. Ashaheed a religious exemption, when he previously accommodated the religious needs of non-Muslims under the Center’s personal-effects policy, shows that he burdened Mr. Ashaheed’s religion in a discriminatory and nonneutral manner.