Church Autonomy Doctrine Bars Catholic High School Teacher's Suit Against Archdiocese

In Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., (IN Sup. Ct., Aug. 31, 2022), the Indiana Supreme Court held that the church autonomy doctrine bars a suit by a former Catholic school teacher against the Catholic Archdiocese for interfering with his employment contract with a Catholic high school. The suit alleges that the Archdiocese pressured the school to fire plaintiff because he had entered a same-sex marriage. Citing a 2003 decision, the court said in part:

[U]nder the church-autonomy doctrine a civil court may not (1) penalize via tort law (2) a communication or coordination among church officials or members (3) on a matter of internal church policy or administration that (4) does not culminate in a criminal act.

Becket issued a press release announcing the decision.

Recent Articles of Interest

 From SSRN:

• Michael A. Helfand, The Law of Torah U’Madda: Considering the Legal Implications of an Integrated Curriculum, (COVID 19 and Chinuch: Lessons Learned and Opportunities Uncovered. Volume 3: Families, Communities and Funders).
• Jeffrey A. Redding, Islamic Challenges to Pakistan’s Transgender Rights Law, (10 Melbourne Asia Review (2022)).
• William Wagner, Amicus Brief in Kennedy v Bremerton School District, (U.S. Supreme Court (No. 21-418) (February 28, 2022)).
• Lael Daniel Weinberger, Carson v. Makin and the Relativity of Religious Neutrality, (Forthcoming, Harvard Journal of Law & Public Policy Per Curiam).
• Emmanuel Umbu & Joseph Agada, The Right to Freedom of Marriage and the Constitutionality of the Prohibition of Same Sex Marriage in Nigeria, (Nigerian Bar Journal (2021), Vol. 11, Issue 1).

From SSRN (Abortion Rights):

• Paul Benjamin Linton, Neutralizing State Constitutions as a Source of Abortion Rights: The Path Forward, (Regent University Law Review, Vol. 34, No. 3, 2021-2022).
• Richmond Idaeho, Turning Point in American Abortion Law: US Supreme Court’s Reversal of Roe V. Wade, (July 9, 2022).
• Peggy Cooper Davis, The Reconstruction Amendments Matter when Considering Abortion Rights, (The Washington Post 2022).
• Peggy Cooper Davis, Overturning Abortion Rights Ignores Freedoms Awarded after Slaverys's End, (The Economist 2022).
• Melanie Kalmanson, Death After Dobbs: Addressing the Viability of Capital Punishment for Abortion, (July 11, 2022).

7th Circuit: Ministerial Exception Doctrine Applies To State Tort Claims

In Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., (7th Cir., July 28, 2022), the U.S. 7th Circuit Court of Appeals held that the the Co-Director of Guidance at a Catholic high school was a "minister" for purposes of the ministerial exception doctrine. It went on to hold that the ministerial exception doctrine applies to state tort claims against the Archdiocese for Interference with Contractual Relationship and Intentional Interference with Employment Relationship. In the case, 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. Starkey sued both the school and the Archdiocese. Summarizing its holding, the court said in part:

Starkey was a minister because she was entrusted with communicating the Catholic faith to the school’s students and guiding the school’s religious mission. The ministerial exception bars all her claims, federal and state.

Becket issued a press release discussing the decision.

Respect For Marriage Act Receives Bipartisan Support But Is Opposed By Christian Groups

On July 19, by a bipartisan vote of 267-157, the U.S. House of Representatives passed and sent to the Senate HR 8404, the Respect For Marriage Act (full text). The bill provides in part:

No person acting under color of State law may deny—

(1) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals; or

(2) a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals.

On Tuesday, 83 Christian and other conservative organizations sent a letter (full text) to Senate Minority Leader Mitch McConnell asking him to oppose the bill, and saying in part:

anyone who supports this measure is crossing a line into aiding and abetting the persecution of people of faith.

The letter suggests that the bill may be interpreted to require religiously-affiliated child placement and social service agencies that receive government funding or work closely with the government to recognize same-sex marriages. Washington Times reports on the letter.

Church Autonomy Doctrine Bars Inquiry Into Pretext Claim In Catholic School's Firing Of Teacher

In Butler v. St. Stanislaus Kostka Catholic Academy, (ED NY, June 27, 2022), a New York federal district court dismissed a sexual orientation discrimination lawsuit brought by Cody Butler, a teacher of English Language Arts and Social Studies who was fired from his Catholic school teaching position shortly after he was hired. After his first teacher orientation session, Butler e-mailed the principal saying that the orientation made him uncomfortable because he is homosexual and plans in the future to marry his boyfriend. Within days, Butler was given a letter of termination.  The court dismissed the suit on both ministerial exception and church autonomy grounds. As to the ministerial exception, the court said in part:

[E]xtensive evidence leaves no doubt that Butler’s job did, and would have continued to, include important ministerial duties....

Butler argued that the school's claim he was fired because his intended same-sex marriage which violated church doctrine was a pretext for firing him because of his sexual orientation. The court said in part:

[T]he only way for the jury to find pretext would be to question the Church’s explanation of religious doctrine, or to question how much that particular religious doctrine really mattered to the Church. To do so, however, would violate the church-autonomy principle.... 

The bottom line is that courts have long recognized the church-autonomy doctrine, and no binding authority has ever said that the ministerial exception eclipses this doctrine in employment-discrimination cases.... I am constrained to conclude that no such limitation exists. Under controlling case law, the church autonomy doctrine applies in the employment-discrimination context, as it does elsewhere. And this principle forecloses judicial inquiry  into the plausibility of St. Stans’ asserted religious justifications in this case....

[Thanks to Mark Chopko for the lead.]

Japanese Court Upholds Ban On Same-Sex Marriage

NPR reports that in Japan on Monday, the Osaka District Court ruled that the country's ban on same-sex marriage does not violate Japan's Constitution, rejecting plaintiffs' demand for damages of 1 milliion Yen ($7400 (US))

The Osaka court on Monday said freedom of marriage in the 1947 constitution only means male-female unions and does not include those of the same sex, and therefore banning same-sex marriages is not unconstitutional.

Judge Fumi Doi said marriage for heterosexual couples is a system established by society to protect a relationship between men and women who bear and raise children, and that ways to protect same-sex relationships are still undergoing public debate.

The court, however, urged the parliament to seek methods to better protect same-sex relationships, including options to legalize same-sex marriage.

The decision is contrary to a ruling in 2021 by a court in Sapporo.

Recent Articles of Interest

From SSRN:

• Katharine Young, Book Review: Adam Chilton and Mila Versteeg, How Constitutional Rights Matter, New York: Oxford University Press, 2020, (Journal of Legal Education Vol. 70, No. 1 (Fall 2020)).
• Mingyu Jun, The Best Interests of Children Overlooked: Should Faith Based Agencies Be Forced Out?, (CSLR Research Paper No. 2.2022-ESS (2022)).
• Abdullahi Ahmed An-Na'im, Autobiographical Reflections,  (Emory International Law Review 36, No. 4 (2022)).
• Alexis Ahlzadeh, Prisoner’s Religious Exercise Rights (or Lack Thereof) under RLUIPA: The Search for a Workable Standard,  (CSLR Research Paper No. 2.2021-ESS (2021).
• Silas W. Allard, A Constellation of Foundings: Chae Chan Ping, Chinese Exclusion, and the Making of America, (CSLR Research Paper No. 9.2022-AFF (2022).
• Franciszek Longchamps de Berier & Rafael Domingo Osle, Introduction to Law and Christianity in Poland: The Legacy of the Great Jurists, (May 29, 2022).
• Samuel Weaver, Protecting Unbelief: Restoring Section Five of Kentucky's Constitution, (Kentucky Law Journal, Vol. 110, No. 1, 2021).
• Mustapha Abdullah Kuyateh, Assessing the Relevance of a Muslim Family in the Modern Environment: A Review, (June 2, 2022).

From SSRN (Abortion Rights):

• Ellis Adler, The Alabama Human Life Protection Act: A Jewish Law Perspective, (CSLR Research Paper No. 1.2021-ESS (2021).)
• Henry (Hank) T. Greely, The Death of Roe and the Future of Ex Vivo Embryos, (J. Law & Biosciences, 9(1) (Forthcoming summer 2022)).
• Benjamin Davis, Sanctimonious Barbarity: The Forced Pregnancy Alito Draft, (May 23, 2022).
• Greer Donley & Jill Wieber Lens, Abortion, Pregnancy Loss, & Subjective Fetal Personhood, (Vanderbilt Law Review, Vol. 75, Forthcoming).

From SSRN (International Human Rights):

• Aditi Mohapatra, Nabanita Pattanayak & Pallavi Panda, Loving Without Boundaries: The Struggle For Same-Sex Marriage Equality On An International Level, (Indian Journal of Law and Legal Research, Volume IV Issue II (2022)).
• Juan Pablo Perez Leon Acevedo & Thiago Felipe Alves Pinto, Disentangling Law and Religion in the Rohingya Case at the International Criminal Court, ((2021) 39:4 Nordic Journal of Human Rights 458-480).
• Shadrack Bentil, Soft Violence: Wicked Hurdles Driving Systemic Discrimination Against Rohingya Children in Myanmar?, (June 1, 2022).
• Stephen A. Rosenbaum, 'Legal Capacity' Under the UN Convention on the Rights of Persons with Disabilities: In Support of Supported Decision-Making, (Forthcoming, 3 Islamic Studies on Human Rights & Democracy _ (2022)).

From SmartCILP:

• Rosalind Dixon, Strong Courts: Judicial Statecraft in Aid of Constitutional Change, 59 Columbia Journal of Transnational Law 298-363 (2021).
• Jonathan K. Van Patten, The Trial of John Scopes, 66 South Dakota Law Review 273-337 (2021).

Recent Articles of Interest

From SSRN:

• Alex Deagon, Creating Peaceful Coexistence Through Virtue: A Theological Approach to Institutional Religious Freedom, Equality and the First Amendment , (Liberty & Law Center Research Paper No. 22-01 (2022).
• Steven Douglas Smith, The Church in the Twilight, (Liberty & Law Center Research Paper No. 22-02 (2022)).
• Elizabeth Clark, The Impact of Religion and Religious Organizations, (Liberty & Law Center Research Paper No. 22-03 (2022).
• Helen M. Alvare, Families, Schools, and Religious Freedom,      (Liberty & Law Center Research Paper No. 22-05 (2022).
• Gerard V. Bradley, The Death and Resurrection of the Establishment Clause, (Liberty & Law Center Research Paper No. 22-06 (2022).
• Francis Beckwith, What’s So Special About Religious Liberty? Law, Philosophy, and Serving God, (Liberty & Law Center Research Paper No. 22-07 (2022).
• Kristen Dagher, What's One More? Another Paper Attempting to Reconcile Abortion Jurisprudence and the Doctrine of Precedent Considering Dobbs v. Jackson Women’s Health, (May 9, 2022).
• Mehdi J. Hakimi, Relentless Atrocities: The Persecution of Hazaras, (Michigan Journal of International Law, Vol. 44 (Forthcoming 2022)).
• Muhammad Munir, John Finnis’ Modern Natural Law Theory: An Overview, (May 15, 2022).

From SSRN (Canadian Law):

• Dwight G. Newman, God in the Constitution: The Supremacy of God Clause in the Preamble to the Canadian Charter of Rights and Freedoms, ((2022) 105 Supreme Court Law Review (2d) 39-56).
• Kristopher Kinsinger, Bringing About a Reformation? Religious Freedom and Canadian Constitutionalism, 1759-1774, ((2022) 105 SCLR (2d) 395).

From SSRN (Law of China and Hong Kong)

• Johannes Man-mun Chan, From Elimination of Discrimination on the Ground of Sexual Preference to Same-Sex Marriage: The Hong Kong Experience, ((2022) Vol 27, No 2, Australian Journal of Human Rights 442-466).
• Hui Jing, The Legal Nature of the Chinese Charitable Trust ,(in Matthew Harding and Ying Khai Liew (eds), Asia-Pacific Trusts Law: Theory and Practice in Context (Hart Publishing, 2021) 271-289).

From SSRN (Islamic Law):

• Zakaria Aamou, Feminist and Islamist Movements in Morocco: Allegations of Compatibility and Revolt, (May 19, 2022).
• Dr. Sulaiman Lebbe Rifai, War and Peace in Islam, (May 19, 2022).
• Dr. Sulaiman Lebbe Rifai, Islam and the Proliferation of Nuclear Weapons, (May 16, 2022).

7th Circuit Hears Oral Arguments In Ministerial Exception Case Involving Catholic School

Yesterday, the US. 7th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Starkey v. Roman Catholic Archdiocese of Indianapolis. In the case, 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. (See prior posting.)

Recent Articles of Interest

 From SSRN:

• Scott D. Gerber, Liberal Originalism in Connecticut Constitutional Interpretation, (Quinnipiac Law Review, Forthcoming).
• Marc Spindelman, Dobbs' Dilemma (Why Justice Brett Kavanaugh's Ideal of 'Scrupulous Neutrality' in Dobbs is a Pipe Dream), (National Law Journal (March 31, 2022)).
• Alexander Gouzoules, Clouded Precedent: Tandon v. Newsom and its Implications for the Shadow Docket, (Buffalo Law Review Vol. 70, No. 87 (2022)).
• Damonta Morgan & Austin Piatt, Making Sense of the Ministerial Exception in the Era of Bostock, (University of Illinois Law Review, Vol. 2022, No. 26, 2022).
• Jennifer Levi & Kevin M. Barry, Transgender Rights & the Eighth Amendment, (Southern California Law Review, Vol. 95, No. 109, 2021).
• Yvonne Lindgren, The Fathers’ Veto and Fatherhood As Property, (February 24, 2022).

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

• Destiny Aisekhaghe, ‘The Right to Freedom of Marriage and the Constitutionality of the Prohibition of Same Sex Marriage in Nigeria’: Another View, (February 27, 2022).
• Nehaluddin Ahmad & Norulaziemah binti Haji Zulkiffle, Discriminatory Policies and Laws Target Indian Muslim Minorities in the Recent Time: A Socio-Legal Study, (Law and Humanities Quarterly Reviews, Vol.1 No.2 (2022)).
• Yifat Bitton & Tamar Kricheli Katz, Disparities on the Basis of Nationality, Ethnicity and Gender in Road Accident Compensation in Israel, (Journal of Law and Courts 2022).
• David Gilchrist, Better Financial Reporting for Australian NFPs, (March 2, 2022).

Court Clerk Violated Rights Of Same-Sex Couples

In Ermold v. Davis, (ED KY, March 18, 2022), a high-profile case that has been pending since 2015, a Kentucky federal district court held that Rowan County Clerk Kim Davis violated the constitutional rights of two same-sex couples when she refused, on religious grounds, to issue them marriage licenses. Rejecting Davis' claim of qualified immunity, the court said: "Davis did not make a mistake. Rather, she knowingly violated the law."  Allowing plaintiffs to move ahead with their civil rights claim, the court said in part:

Ultimately, this Court’s determination is simple—Davis cannot use her own constitutional rights as a shield to violate the constitutional rights of others while performing her duties as an elected official.

The court said that a jury should decide whether plaintiffs are entitled to compensatory and punitive damages. AP reports on the decision. [Thanks to Scott Mange for the lead.] [UPDATED]

3rd Circuit: Foster Parents Have Religious Discrimination Claim For License Suspension Over Their Anti-LGBT Views

In Lasche v. State of New Jersey, (3rd Cir, March 1, 2022), the U.S. 3rd Circuit Court of Appeals reversed a district court's dismissal of a suit by former foster parents who alleged that their free exercise rights were infringed when their foster care license was suspended because of their religious opposition to same-sex marriage and their religious belief that homosexual conduct is sinful. The court remanded for further proceedings plaintiffs' claims under 42 USC §1983 and §1985(3).  It also remanded for further proceedings their claim that defendants' action violated New Jersey's Law Against Discrimination, finding that the state's Division of Child Protection and Permanency is a "place of public accommodation" under that law.

Oregon Court Rejects Part Of Its Earlier Decision In Wedding-Cake Dispute

In Klein v. Oregon Bureau of Labor and Industries, (OR App., Jan. 26, 2022), the Oregon Court of Appeals, in a case on remand from the U.S. Supreme Court, reaffirmed its prior decision in part in a challenge to the religious refusal by a bakery (Sweetcakes by Melissa) to provide a wedding cake for a same-sex marriage. The court reaffirmed its conclusion that the refusal violates the anti-discrimination provisions of the state's public accommodation law that prohibits discrimination on the basis of sexual orientation. It held that the U.S. Supreme Court's decision in Fulton v. City of Philadelphia does not change its earlier conclusion, saying in part:

the Kleins have not demonstrated that Fulton alters our prior conclusion that ORS 659A.403 is a “generally applicable” law for purposes of Smith, nor our related conclusion that, under Smith, the application of the law to Aaron’s conduct of denying cake-making services based on sexual orientation does not violate the Kleins’ rights under the Free Exercise Clause.

The court however did set aside the damage order entered by the Oregon Bureau of Labor and Industries, finding that, in light of the U.S. Supreme Court's Masterpiece Cakeshop decision, BOLI’s decision on damages violates the Free Exercise Clause.  The court said in part:

[T]he prosecutor’s closing argument apparently equating the Kleins’ religious beliefs with “prejudice,” together with the agency’s reasoning for imposing damages in connection with Aaron’s quotation of Leviticus, reflect that the agency acted in a way that passed judgment on the Kleins’ religious beliefs, something that is impermissible under Masterpiece Cakeshop.

The Oregonian reports on the decision.

European Court Dismisses Challenge To Baker's Refusal To Supply Cake With Pro-Gay Marriage Inscription

In a much-awaited decision, the European Court of Human Rights managed to avoid dealing directly with the central question in a case pitting LGBTQ rights against religious freedom rights of owners of commercial establishments. In Lee v. United Kingdom, (ECHR, Jan. 6, 2022), Gareth Lee, a gay man, ordered a cake from a bakery in Belfast. He asked for the cake to be decorated with the slogan "Support Gay Marriage."  He planned to take it to a private event being held to mark the end of Northern Ireland Anti-Homophobia and Transphobia Week and being held to gather political support for pending legislation to legalize same-sex marriage. The bakery, Ashers Baking Company, rejected the order because the company owners' Christian religious beliefs were opposed to same-sex marriage.

Lee filed suit in a county court in Northern Ireland claiming a violation of Northern Ireland's Equality Act and its Fair Employment and Treatment Order, which, among other things, bar sexual orientation discrimination in the provision of goods or services and discrimination on the basis of religious belief or political opinion. The case wound its way up to the U.K.'s Supreme Court which concluded that there was no sexual orientation discrimination because the bakery would have refused to supply the cake with that inscription to anyone. It also rejected the political opinion discrimination claim.

Lee appealed to the European Court of Human Rights. In yesterday's decision, the court dismissed the appeal, finding that Lee "did not invoke his Convention rights expressly at any point in the domestic proceedings.  Instead he formulated his claim by reference to [Northern Ireland's domestic law]." By failing to assert his rights under the European Convention in the courts of Northern Ireland, Lee failed to exhaust his domestic remedies.  The court said in part:

75.  ... As the Supreme Court of the United States pointed out in Masterpiece Cakeshop Ltd, these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.... This is particularly so in Northern Ireland, where there is a large and strong faith community, where the LGBTIQ community has endured a history of considerable discrimination and intimidation, and where conflict between the rights of these two communities has long been a feature of public debate....

Reuters reports on the decision. [Thanks to several readers for alerting me to the decision.]

Religious Child Placement Agency Challenges HHS Non-Discrimination Regulations

Suit was filed yesterday against the U.S. Department of Health and Human Services in a Tennessee federal district court by a religious child welfare agency that offers residential and foster care services for abused and neglected children. The suit challenges an HHS regulation that prohibits foster care and adoption programs receiving federal funds from discriminating on the basis of religion, sex, sexual orientation, gender identity or same-sex marriage status. The regulation expands upon the statutory prohibition on discrimination in such programs on the basis of race, color or national origin. The complaint (full text) in Holston United Methodist Home for Children v. Becerra,(ED TN. filed 12/2/2021), alleges that the regulation exceeds the federal agency's authority and that it violates RFRA and various 1st Amendment rights. The complaint alleges in part:

28. It would substantially burden Holston Home’s exercise of its religious beliefs to knowingly engage in child placing activities in connection with persons that do not agree with its Christian statement of faith and beliefs....

30. It would substantially burden Holston Home’s exercise of its religious beliefs to knowingly engage in child placing activities in connection with couples who may be romantically cohabitating but not married, or who are couples of the same biological sex.

The Trump Administration had issued waivers of the rule for faith-based agencies, but those waivers were rescinded by the Biden Administration last month. (See prior posting). ADF issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

From SSRN:

• Frederick Mark Gedicks, Custom, Preference, or Nature? Mormon Polygamy, Same-Sex Marriage, and Natural Law Theory, (In Queer and Religious Alliances: Friendship in Family Law and Beyond (Anthem Press, forthcoming 2022)).
• Brady Earley, Contagions, Congregations, and Constitutional Law: Comparing Religious Freedom in the 1918 and 2020 Pandemics, (August 20, 2021).
• Brady Earley, Sacred Ground: Unearthing Religious Freedom of African American Slaves, (September 9, 2021).
• Brady Earley, Religious Freedom 'with Chinese Characteristics', (August 20, 2021).
• Kyler Palmer, Bostock, Backlash, and Beyond the Pale: Religious Retrenchment and the Future of LGBTQ Antidiscrimination Advocacy in the Wake of Title VII Protection, (DePaul Journal for Social Justice, Forthcoming Winter 2021).
• Perry Dane, Robert Cover and Legal Pluralism - Redux, (October 17, 2021).
• Caroline Mala Corbin, The Pledge of Allegiance Revisited: Speech Rights vs Parental Rights, (Indiana Law Journal, Forthcoming).

From SSRN (Abortion Rights):

• Adam Lamparello, Charles MacLean & Brian Owsley, Amicus Brief of Professors Lamparello, MacLean, and Owsley in favor of Petitioners in Whole Woman's Health v. Jackson, US Supreme Court No. 21-463, (October 26, 2021).
• Gary J. Simson & Rosalind Simson, Rescuing Roe, (N.Y.U. Journal of Legislation and Public Policy, volume 24, issue 2, Forthcoming Winter 2022).
• I. Glenn Cohen, Eli Y. Adashi & Lawrence O. Gostin, The Supreme Court, the Texas Abortion Law (SB8), and the Beginning of the End of Roe v Wade?, (The Journal of the American Medical Association Health Forum, published online September 23, 2021, at E1-E2).

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

• Abdulmumini Adebayo Oba & Ismael Ismael, Revisiting the Causes of Delay in the Adjudication of Islamic Personal Law Cases in Nigerian Jurisprudence, (Nnamdi Azikiwe University Journal of International Law and Jurisprudence Vol. 11 No. 1, 2020, pp. 1-14).
• Melanie Levy, Surrogacy and Parenthood: a European Saga of Genetic Essentialism and Gender Discrimination, (Michigan Journal of Gender & Law, Forthcoming).
• Assaf Likhovski & Aviram Shahal, The History of Israeli Pre-State Constitutionalism, (The Oxford Handbook of the Israeli Constitution, Aharon Barak, Barak Medina and Yaniv Roznai (eds.) (Forthcoming)).
• Ismael Ismael & Abdulmumini Adebayo Oba, Judicial Practice in Distribution of Inheritance (Mīrāth) in Islamic Courts in Nigeria,  (De Jure: Jurnal Hukum dan Syari’ah Vol. 11 No. 1, 2019, pp. 1-22).

From elsewhere:

• Columbia Law School, Law, Rights and Religion Project, The Southern Hospitals Report: Faith, Culture, and Abortion Bans in the U.S. South, Nov. 2021).
• U.S. Holocaust Memorial Museum, “To Make Us Slowly Disappear” The Chinese Government’s Assault on the Uyghurs, (Nov. 2021).

Recent Articles of Interest

From SSRN:

• Zalman Rothschild, Fulton’s Missing Question: Religious Adoption Agencies and the Establishment Clause, (Texas Law Review Online, Vol. 100 (2021)).
• Marc Spindelman, The Shower's Return: An Essay on the LGBT Title VII Sex Discrimination Cases, 82 Ohio State Law Journal Online 128 (2021).
• Marc Spindelman, Mississippi's Originalism: Dobbs v. Jackson Women's Health and the Attack on Sexual Freedom, The American Prospect (October 19, 2021).
• Frederick Mark Gedicks, Custom, Preference, or Nature? Mormon Polygamy, Same-Sex Marriage, and Natural Law Theory, (in Queer and Religious Alliances: Friendship in Family Law and Beyond (Anthem Press, forthcoming 2022)).

From SmartCILP and elsewhere:

• Jasmine R. Silver (Jason R. Silver), Binding Morality and Perceived Harm as Sources of Moral Regulation Law Support among Political and Religious Conservatives, 54 Law & Society Review 680-719 (2020).
• Dallin H. Oaks, Going Forward with Religious Freedom and Nondiscrimination, (2021 Joseph Smith Lecture at the University of Virginia, November 12, 2021).

Supreme Court Denies Cert. In Case Alleging Religious Belief Discrimination

The U.S. Supreme Court on Tuesday denied review in Pasadena Republican Club v. Western Justice Center, (Docket No. 20-1773, certiorari denied 10/12/2021). (Order List). In the case, the U.S. 9th Circuit Court of Appeals dismissed a suit claiming viewpoint discrimination and religious belief discrimination by the Western Justice Center (WJC) that was leasing the historic Maxwell House from the city of Pasedena.  WJC refused to rent space to the Republican Club for a speech by the president of the National Organization for Marriage because NOM's position on same-sex marriage, gay adoption, and transgender rights are antithetical to the values of WJC.  The 9th Circuit (full text of opinion) held that WJC was not a state actor for purposes of the Republican Club’s constitutional claims, and that the the government did not become vicariously liable for the discretionary decisions of its lessee. (See prior related posting.) Pasedena Now reports on the Court's action.

Recent Articles of Interest

From SSRN:

• Sahar F. Aziz, Reflections on Security, Race, and Rights Twenty Years After 9/11, (12 J. Nat'l Sec. L. & Pol. 135 (2021)).
• Carl H. Esbeck, An Extended Essay on Church Autonomy, (22 Federalist Society Review 244 (2021)).
• Richard W. Garnett & Mitchell Koppinger, Tandon v. Newsome, South Bay Pentecostal, & Roman Catholic Diocese of Brooklyn on Religious Liberty and the Pandemic, (Ch. 13, M. Marietta, ed., SCOTUS 2021: Major Decisions and Developments of the U.S. Supreme Court (Forthcoming 2021)).
• Nausica Palazzo, Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships, (Columbia Journal of Gender and Law, Forthcoming).
• Duncan Kennedy, Consciousness, Doctrine, and Politics in the History of American Family Law, (February 2, 2020).

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

• Robert C. Blitt, Russia’s 2020 Constitutional Amendments and the Entrenchment of the Moscow Patriarchate as a Lever of Foreign Policy Soft Power, (Peter Mandaville (ed.), The Geopolitics of Religious Soft Power: How States Use Religion in Foreign Policy, Oxford University Press, Forthcoming 2022).
• Thomas McMahon, Canada Needs the Every Child Matters Act: What Needs to Be in the Act, (September 30, 2021).
• Saud Alholiby & Zakaria A. Almulhim, From the Lack to the Requirement: The Public Consultation Reform in Saudi Arabia, (UCLA Journal of Islamic and Near Eastern Law, Forthcoming).
• Christian Bjørnskov, Stefan Voigt & Mahdi Khesali,   Unconstitutional States of Emergency, (August 30, 2021).

From SmartCILP:

• Fatemah AlBader, Cultural Oppression Disguised as Religious Obligation: A Fatal Misrepresentation to the Advancement of Muslim Women's Rights in the Context of the So-Called Honor Killings, 24 Asian Pacific American Law Journal 1-16 (2020).
• Stephanie Hennette-Vauchez, Religious Neutrality, Laicite and Colorblindness: A Comparative Analysis, 42 Cardozo Law Review 539-596 (2021).
• Mark Strasser, Conscience Clauses and the Placement of Children: Introduction, 15 Journal of Law & Family Studies 1-18 (2013).

Britain's Court of Appeal Rejects Christian Agency's Ban On Same-Sex Couples Becoming Foster Parents

In The Queen (On the Application of Cornerstone (Northeast) Adoption and Fostering Services, Ltd. v. Her Majesty's Chief Inspector of Education, Children's Services and Skills (OFSTED), (EWCA, Sept. 24, 2021), England's Court of Appeal held that Cornerstone, a Christian foster care agency, violated the Equality Act 2010 and the Human Rights Act 1998 when it required clients with which it placed children to:

Set a high standard in personal morality which recognises that God's gift of sexual intercourse is to be enjoyed exclusively within Christian marriage; abstain from all sexual sins including immodesty, the viewing of pornography, fornication, adultery, cohabitation, homosexual behaviour and wilful violation of your birth sex.

The court said in part:

The detrimental impact on society and on individuals of discrimination on the ground of sexual orientation has led the law to set a demanding standard of justification.... [W]e should be slow to accept that prohibiting fostering agencies from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion....

... [T]here can be no doubting the value of its work or the sincerity of [Cornerstone's] motives. However, in order to justify a policy of this nature, it needed to provide credible evidence that there would otherwise be a seriously detrimental impact on carers and children. The evidence it actually advanced did not go beyond the level of general assertion.... [W]hile I would not rule out the possibility of an organisation in this position putting up a substantial evidence-based case on justification, Cornerstone simply did not do that....

[Thanks to Law & Religion UK for the lead.]