Ecclesiastical Abstention Doctrine Does Not Bar School Administrator's Contract Claim

In Saint Augustine School v. Cropper, (KY Sup. Ct., Nov. 2, 2017), the Kentucky Supreme Court held that the ecclesiastical abstention doctrine does not prevent the former lay administrator of a Catholic elementary school from asserting a breach-of-contract claim, saying in part:

Saint Augustine's justification for the Cropper's dismissal stems from declining student enrollment and shrinking revenues. No matter the extent of Cropper's involvement in the religious life of Saint Augustine; adjudicating her damages claim for breach of her employment contract does not require the secular court's "wading into doctrinal waters"; it is simply the termination of the lay administrator at a parochial school. Even if Cropper had been a prominent actor in the religious life of the community, unless Saint Augustine- fired her for reasons associated with the application of church doctrine or governance, the ecclesiastical-abstention doctrine would not apply.

In the case, the school had specifically disclaimed reliance on the ministerial exception defense.

Chabad Gets Partial Win Under RLUIPA In Long-Running Suit

In a case that has wound its way through the courts for nearly ten years, this week a Connecticut federal district court gave a partial victory to the Orthodox Jewish Chabad organization which is seeking to expand a residential building it purchased in an area zoned as an Historic District.  In Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield, Connecticut, (D CT, Nov. 1, 2017), a Connecticut federal district court held that the Lichtfield Historic District Commission's denial of a Certificate of Appropriateness for the planned expansion placed a substantial burden on the religious exercise of Chabad in violation of the Religious Land Use and Institutionalized Persons Act.  However, the court concluded that Chabad needs to submit revised plans that eliminates the portion of the expansion that would serve as a residence for the rabbi. (See prior related posting.) [Thanks to Dan Dalton for the lead.]

Pakistan Court Fines and Jails Husband For Polygamous Marriage Without Wife's Consent

According to Deutsche Welle, for the first time a trial court in Pakistan has sided with the woman in a polygamy case.  A trial court in Lahore sentenced Shahzad Saqib to 6 months in jail and a fine equivalent to $1900 (US) for violating Pakistan's 2015 family law that requires the exiting wife's approval for a man to take a second wife. (Background). The court rejected the husband's argument that he did not need consent because Islam permits a man to have up to four wives.

Canada's Supreme Court Rejects Aboriginal Tribe's Religious Objection To Ski Resort

In Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), (Sup. Ct. Canada, Nov. 2, 2017), the Supreme Court of Canada rejected a claim by the aboriginal Ktunaxa Nation that government approval for the development of a ski resort on land they considered sacred would violate their constitutional right to freedom of religion under Section 2(a) of Canada's Charter of Rights and Freedoms as well as their Aboriginal treaty rights under Section 35 of the Constitution Act.  Chief Justice McLachlin, writing for 7 Justices held (as summarized by the court):

... the Ktunaxa are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it. Rather, they seek to protect the presence of Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it. This is a novel claim that would extend s. 2(a) beyond its scope and would put deeply held personal beliefs under judicial scrutiny. The state’s duty under s. 2(a) is not to protect the object of beliefs or the spiritual focal point of worship, such as Grizzly Bear Spirit. Rather, the state’s duty is to protect everyone’s freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination.

Justice Moldaver, writing for 2 Justices, found a substantial interference with religious beliefs, but concluded that it was justified as a proportionate balancing between the Ktunaxa’s s. 2(a) Charter right and the Minister’s statutory objectives. The court summarized their conclusion as to infringement of religious liberty:

... the Ktunaxa sincerely believe that Grizzly Bear Spirit inhabits Qat’muk, a body of sacred land in their religion, and that the Minister’s decision to approve the ski resort would sever their connection to Qat’muk and to Grizzly Bear Spirit. As a result, the Ktunaxa would no longer receive spiritual guidance and assistance from Grizzly Bear Spirit. Their religious beliefs in Grizzly Bear Spirit would become entirely devoid of religious significance, and accordingly, their prayers, ceremonies, and rituals associated with Grizzly Bear Spirit would become nothing more than empty words and hollow gestures. Moreover, without their spiritual connection to Qat’muk and to Grizzly Bear Spirit, the Ktunaxa would be unable to pass on their beliefs and practices to future generations. 

Lawyer's Daily has a lengthy report on the decision.

New Tax Bill Would Allow "529 Plans" For Parochial School Tuition

The Republican tax bill (full text) introduced yesterday (see prior posting) would allow parents to set up "529 Plans" for up to $10,000 per year of elementary and secondary school tuition, including tuition at religious schools. (Section 1202).  529 Plans, currently limited to saving for college expenses, are a method of earning tax-free income on educational savings.  The bill also allows a Section 529 plan to be set up for an "unborn child," defined in the proposal as a "child in utero," which is in turn defined in the bill as "a member of the species homo sapiens, at any stage of development, who is carried in the womb."

Republican Tax Bill Would End Johnson Amendment Ban On Partisan Sermons

As reported by CBS, House Republicans yesterday released their proposed tax reduction plan.  The bill (full text) titled "Tax Cuts and Jobs Act" includes a limited change in the Johnson Amendment that would allow sermons that endorse specific candidates. The Johnson Amendment prohibits Section 501(c)(3) non-profits from participating in partisan political campaigns.  Yesterday's proposal (Sec. 5201) would provide a limited exceptions to that ban as it applies to churches (and their integrated auxiliaries and conventions and associations of churches).  Here is the relevant portion of the proposed language in the bill:

... an organization described in section 508(c)(1)(A) shall not fail to be treated as organized and operated exclusively for a religious purpose, nor shall it be deemed to have participated in, or intervened in any political campaign on behalf of (or in opposition to) any candidate for public office, solely because of the content of any homily, sermon, teaching, dialectic, or other presentation made during religious services or gatherings, but only if the preparation and presentation of such content— (A) is in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose, and (B) results in the organization incurring not more than de minimis incremental expenses.

Orthodox Jews In Canada Challenge Brain Death As End-of-Life Test

According to the National Post, in the Canadian city of Toronto an Orthodox Jewish family has filed suit claiming that under the Charter of Rights and Freedoms they should be able to require a hospital to continue to treat their 25-year old son who was declared brain dead.  The family says that their religious beliefs reject the concept of brain death in favor of the end of heart beat as the test.  The court ordered the patent to temporarily be kept on life support while the case is pending.

Louisiana Governor Exceeded Authority In Expanding Non-Discrimination Protections

In Louisiana Department of Justice v. Edwards, (LA App, Nov. 1, 2017), a Louisiana state appeals court held that Louisiana Governor John Edwards exceeded his authority when he issued an Executive Order that extended non-discrimination provisions for state contracts and state employment to include sexual orientation and gender identity.  the court said in part:

[T]he Governor's Executive Order constituted an unconstitutional interference with the authority vested solely in the legislative branch of our state government by expanding the protections that currently exist in anti-discrimination laws rather than directing the faithful execution of the existing anti-discrimination laws of this state.

The Times-Picayune reports on the decision.

California Pregnancy Clinic Requirement Violates State Constitution

In Scharpen Foundation, Inc. v. Harris, (CA Super. Ct., Oct 30, 2017), a California state trial court held that the state's Reproductive FACT Act violates the free speech protections of Art. I, Sec. 2 of the California Constitution. The challenged statute requires licensed pregnancy counseling clinics to post or provide to patients a notice on the existence of publicly-funded family planning services, including contraception and abortion. Applying strict scrutiny, the court said in part:

There is no question that the State has a legitimate regulatory interest in the practice of the healing arts.  In the midst of this contentious political dispute the State commands that specific State authored words be mouthed by the clinic at the very beginning of its relationship with those who come to it for guidance.... The statute interferes with both the right of the clinician to speak and with the right of the patient to hear what the clinician would say in the absence of State censorship....

It is entirely proper for the State to take its position supporting access to abortion.... But its ability to impress free citizens into State service in this political dispute cannot be absolute....

Last year the U.S. 9th Circuit Court of Appeals upheld the California statute against free speech and free exercise challenges raised under the U.S. Constitution. (See prior posting.) Liberty Counsel issued a press release announcing this week's state court decision.

2nd Circuit: Religious Court Lacks Standing To Challenge Stay of Its Proceedings

In Bais Din of Mechon L’Hoyroa v. Congregation Birchos Yosef, (2d Cir., Nov. 1, 2017), the U.S. 2nd Circuit Court of Appeals affirmed a  district court's conclusion that a Jewish religious court lacked standing to challenge the application of the Bankruptcy Code's automatic stay provisions to proceedings in the religious court.  The 2nd Circuit said in part:

As the district court correctly concluded, the Bais Din failed to demonstrate that it suffered a pecuniary harm. Quite the opposite, the Bais Din did not even allege a pecuniary harm before the district court, claiming instead that the automatic stay inhibited the free exercise of religion by “preventing the Bais Din from issuing notices to or against” individuals who violate Jewish law’s prohibition on initiating proceedings in secular courts without prior permission from a rabbinical court. Whatever the merits of that claim, it does not reflect a pecuniary injury. Moreover, to the extent that the Bais Din seeks to vindicate a non-pecuniary injury, nothing in this or the district court’s opinion prevents it from filing a civil action.

Amicus Briefs In Masterpiece Cakeshop Now Available Online

The Masterpiece Cakeshop case will be argued before the Supreme Court on Dec. 5. Over 50 90 amicus briefs have been filed in the case. SCOTUSblog's case page has links to them, as well as to briefs of petitioner and respondent and to commentary on the case. The case pits the Colorado Civil Rights Commission against a baker who, for religious reasons, refused to create a wedding cake for a same-sex couple.

Bus Driver Can Move Ahead With Religious Objection To Fingerprinting

In Kaite v. Altoona Student Transportation, Inc., (WD PA, Oct. 30, 2017), a Pennsylvania federal district court allowed a school bus driver to proceed with her religious discrimination and retaliation claims against her employer.  A newly enacted state law required the driver to undergo a background check, including fingerprinting.  According to the court, plaintiff, a devout Christian, sought an accommodation because of her belief that fingerprinting is the "mark of the devil" which is forbidden by the Book of Revelation.  Defendant refused any accommodation and dismissed plaintiff.  Legal Intelligencer reports on the decision.

Barrett Confirmed For 7th Circuit After Controversy Over Her Religious Beliefs

The Hill reports that the U.S. Senate yesterday confirmed the nomination of Notre Dame Law Professor Amy Coney Barrett for a seat on the U.S. 7th Circuit Court of Appeals.  Three Democrats joined Republicans to approve the nomination by a vote of 55-43.  Barrett's nomination had become controversial because of her views on reproductive rights, abortion, LGBTQ rights, as well as her statement in a 1988 law review article urging Catholic judges to recuse themselves in capital cases because of Catholic teaching opposing capital punishment. (See prior posting.) After the Senate's confirmation vote, a spokesperson for The Catholic Association said:

Amy Coney Barrett's qualifications for the federal judiciary are undisputed, but abortion industry advocates continue their smear campaign by attacking Barrett's Catholic faith.  The full Senate rejected their attempt to hang a ‘Catholics need not apply’ sign outside the Senate chamber when it considers candidates to the judiciary.

7th Circuit Hears Arguments On Christmas Pageant Challenge

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in Freedom From Religion Foundation v. Concord Community Schools. (Audio of oral arguments).  In the case, an Indiana federal district court upheld the constitutionality of a modified version of the annual Christmas Spectacular put on by an Indiana high school.  Plaintiffs had challenged the pageant under the Establishment Clause. The court had previously issued a preliminary injunction against the 2014 and proposed 2015 versions that included a live Nativity Scene and Bible passages. (See prior posting.)  Subsequently the court awarded nominal damages and a declaratory judgment as to the earlier versions. (See prior posting.)  Courthouse News Service reports in more detail on yesterday's oral arguments.

New Contraceptive Coverage Rules Challenged As Notre Dame Plans To End Coverage

As previously reported, the Trump Administration has issued Interim Final Rules that expand religious exemptions from the Affordable Care Act contraceptive coverage mandate.  The Administration has also settled many of the lawsuits challenging the contraceptive coverage requirement.  Indiana Public Media reports that Notre Dame University last week informed students and employees that after the end of the current plan year, health insurance policies obtained through the University will no longer cover contraceptives for birth control. Apparently plans will still cover contraceptives where necessary to treat medical conditions.

Yesterday, three Notre Dame students, an employee of an Illinois university and an employee of a church filed suit in an Indiana federal district court challenging the new Interim Rules.  The complaint (full text) in Shiraef v. Hargan, (ND IN, filed 10/31/2017), contends:

3. Bypassing the legally-required notice and comment process, the Rules were promulgated to take effect immediately and nullify existing regulations that took over six years to implement and involved no less than six rounds of notice-and-comment rulemaking, including consideration of over 725,000 comments.

4. The Rules and their issuance violate the Administrative Procedure Act, the Establishment Clause of the First Amendment to the U.S. Constitution, the Due Process Clause of the Fifth Amendment to the U.S. Constitution including equal protection guarantees and the right to liberty, and the ACA.

Americans United issued a press release announcing the filing of the lawsuit.

Muslim Woman's Suit Over Search By Male Officer Is Dismissed

In Montgomery v. Town of Colonie, (ND NY, Oct. 30, 2017), a New York federal district court granted qualified immunity to a male police officer who conducted a pat-down search of a Muslim woman when she was arrested.  Dismissing this portion of plaintiff's claim for damages, the court said in part:

Montgomery does not cite a single authority holding that a police officer violates the First Amendment by performing a cross-gender pat-frisk of an observant Muslim.

The court however allowed plaintiff to move ahead with her Fourth Amendment and false imprisonment claims.

Court Blocks Trump's Memo On Transgender Enlistment And Service In Military

A D.C. federal district court yesterday issued a preliminary injunction barring enforcement of the portions of President Trump's Memorandum on Military Service by Transgender Individuals that would have prevented enlistment and service by transgender persons.  In a 76-page decision in Jane Doe 1 v. Trump, (D DC, Oct. 30, 2017), the court said in part:

As a form of government action that classifies people based on their gender identity, and disfavors a class of historically persecuted and politically powerless individuals, the President’s directives are subject to a fairly searching form of scrutiny. Plaintiffs claim that the President’s directives cannot survive such scrutiny because they are not genuinely based on legitimate concerns regarding military effectiveness or budget constraints, but are instead driven by a desire to express disapproval of transgender people generally. The Court finds that a number of factors— including the sheer breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the President’s announcement of them, the fact that the reasons given for them do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself—strongly suggest that Plaintiffs’ Fifth Amendment claim is meritorious.

The court held plaintiffs lack standing to challenge the Memorandum's provisions blocking funds for sex reassignment surgery. New York Times reports on the decision.

Catholic Nurse Sues Duke University Hospital Seeking Religious Accommodation

A lawsuit was filed last week against Duke University and the Duke University Health System by a Catholic emergency department nurse who claims that Duke University Hospital discriminated against her because she requested accommodation of her religious beliefs.  The complaint (full text) in Pedro v. Duke University, (MD NC, filed 10/27/2017), alleges in part:

7. Because of her Catholic faith, [plaintiff] objects to assisting in abortions, dispensing birth control and contraceptives, and receiving as well as administering vaccines. Ms. Pedro’s employer, Defendant Duke, discriminated against her because of these religious beliefs and practices.

8. Furthermore, after Ms. Pedro made known her religious beliefs and requested religious accommodations, Defendant Duke subjected her to a degrading series of actions designed to punish and retaliate against her for engaging in federally-protected activity.

Apparently the Hospital was willing to accommodate Pedro's objection to receiving vaccines, but not her objection to participating in abortions.

Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Township In Litigation With Indian Tribe Over Use of Prayer Grounds

In Mahwah, New Jersey, where most of the attention is on a lawsuit claiming that the township is attempting to keep out Orthodox Jews (see prior posting), NJ Advance Media reports on another trial under way also involving religious rights.  The township is attempting to force the Ramapough Lenape Indian Tribe to remove teepees and other structures the tribe erected on their 13.6 acre prayer ground on the Ramapo River at the base of a high-priced housing development. the tribe says the township is trying to criminalize its religious gatherings.  The township argues that the issue is zoning compliance in a conservation zone and flood plain. It says the tribe has created a camp ground that is not permitted under zoning regulations.

Egyptian Court Bans TV Show That Criticizes Traditional Sunni Doctrine

Yesterday Egypt's Administrative Court banned the broadcast of the TV show "With Islam."  As reported by Al-Ahram and Egypt Daily News, the show, hosted by Egyptian reformer Islam El-Beheiry, features video excerpts of talks by respected Salafi preachers followed by El-Beheiry's criticism of their statements.  The show appears on the privately-owned TV channel Al Qahera Wel Nas.  The suit was originally filed in 2015 by Al-Azhar Grand Imam Ahmed El-Tayeb who contended that El-Beheiry falsely criticized religious doctrines to make individuals question their beliefs. Yesterday;s court order bans showing of future as well as past episodes of With Islam, and also prohibits inviting El-Beheiry to appear on any other satellite TV channels.  In December 2015, El-Beheiry was sentenced to one year in prison for contempt of religion after he questioned the authenticity of certain Sunni religious texts. He was released one month early with a pardon from Egyptian President Abdel Fattah el-Sisi, and his show resumed in May.