Defamation Suit Dismissed Under Ecclesiastical Abstention Doctrine

In In re Alief Vietnamese Alliance Church and Phan Phung Hung, (TX App., April 30, 2019), a Texas state appellate court held that a defamation claim by a church's former interim pastor, Paul Nguyen, against the Church and its senior pastor Phan Phung Hung should be dismissed under the ecclesiastical abstention doctrine.  At issue were statements by Hung that Nguyen had committed adultery with a female church member. In a 2-1 decision, the majority said in part:

We conclude that Hung's allegedly defamatory statements are ... "inextricably intertwined" with matters relating to an internal struggle between a current and former leader of the Church over Church governance, the standard of morals required of leaders of the Church, and the reason for Nguyen's leaving or being expelled from the Church....

Even if there is a dispute over Hung's motivation in making the statements—either as part of a disciplinary procedure due to the alleged adultery or merely out of vindictiveness towards Nguyen, who had criticized Hung's pastoring decisions—these statements were made in the context of expelling a member and former leader of the Church, or, alternatively, the Church member's voluntarily quitting his leadership positions and quitting the Church—and then refusing to meet with Church leadership to resolve the dispute—either version of which is inherently an ecclesiastical concern as a matter of law.

Judge Landau filed a dissenting opinion.

Latest NYC Emergency Measles Order Upheld

In C.F. v. New York City Department of Health and Mental Hygiene, 2019 NYLJ LEXIS 1419 (Kings Cty. Sup. Ct., April 3, 2019), a New York state trial court judge has upheld the latest version of New York City's declaration of a public health emergency to combat the measles outbreak.  The court said in part:

The pivotal question posed for this court's determination is whether Respondent Commissioner has a rational, non-pretextual basis for declaring a public health emergency and issuing the attendant orders challenged herein. The evidence in this regard is largely uncontroverted. The unvarnished truth is that these diagnoses represent the most significant spike in incidences of measles in the United States in many years and that the Williamsburg section of Brooklyn is at its epicenter. It has already begun to spread to remote locations....

The court went on to reject petitioner's scientific, religious and moral objections to the orders issued by the Department of Health:

Petitioners' medical experts opine, variously, that the MMR vaccine is ineffective, is of greater risk than non-vaccination and that the MMR vaccine itself propagates the very disease it was designed to prevent. These contentions are completely unsupported by studies, medical literature or other acceptable evidence....

The religious objection exemption contained in Public Health Law 2164(a) applies only to the certificate of immunization required to admit a child to school, not to remedies attendant upon declaration of a public health emergency. Even if it did apply, the affidavits ... are entirely unsupported by an affidavit of a religious official (priest, rabbi, etc.) or other doctrinal documentation tending to support their opinion....

Petitioners have raised various moral objections seemingly centered around a claim that the order(s) would compel forced vaccination. An examination of the orders indicates, and respondents concede that they do not require forcible vaccination. Accordingly, this court need not address the issue of forcible vaccination....

California Bishops Prevail In Part On Anti-SLAPP Defense To Abuse Concealment Claims

In Emens v. California Catholic Conference, (CA Super. Ct., April 17, 2019), a California state trial court granted a portion of an anti-SLAPP motion filed by the bishops of California's 11 dioceses seeking to strike a broad complaint filed against them charging that they have concealed clergy sex abuse. The complaint in the case (full text) filed last October charges that the concealment actions by the various bishops amount to a public nuisance, a private nuisance and civil conspiracy.  It asked for an order requiring release of the names of all clergy accused of child molestation and their history of abuse. California's anti-SLAPP law allows courts to strike a complaint that arises from acts in furtherance of free speech on a public issue unless plaintiff establishes there is a probability that he or she will prevail.

Finding that plaintiff has not established the probability of prevailing on the merits, the court struck portions of the complaint which allege actions in furtherance of free speech rights, but allowed plaintiff to move ahead on those claims that are not based on the exercise of free expression, saying in part:

Some of the conduct alleged does implicate the right of free speech, including the right not to speak. This would include the right not to publicly disclose the names of priests against whom allegations were made which were determined to be unfounded or lack credibility, and disclosing the names of priests against who allegations were made of conduct in the 1950’s where there was no investigation and where the priests have passed away.

The allegation that defendants attacked the credibility of victims does implicate free speech. Defendants may address the credibility of those making accusations against priests. 

Allowing child molesters to live in the community without notice to the community and transferring alleged molesters to new parishes without warning of the general public has First Amendment free speech implications. The actions are not permitting molesters to live in the community and transferring accused molesters, but doing this without notice to the affected communities. There are no allegations that the priests at issue had been convicted of any crime, or that notice was mandated. This would include accusations made against priests which were determined to lack credibility and to be without merit.

Concealing information regarding the actions of defendants and their agents from victims of past abuse also implicates free speech, as it is a general allegations as to all information regarding any reports of abuse, whether that information is connected to the abuse of a particular victim or there was any relation between the time of the abuse and the time of the information, and without regard to the credibility of the information. 

The remaining allegations do not involve the right to free speech or petition. There is no right to conceal sexual assaults from authorities. Protecting abusers from criminal prosecution is neither free speech nor petition. Making affirmative representations of the fitness of priests for assignments which included working with children while concealing information regarding the sexual misconduct of those priests is not an issue of free speech, but an issue of false speech.

Pacific Standard reports on the press conference held yesterday by the plaintiff and his attorneys who see the decision as a victory since it allows plaintiff to move ahead on some of his allegations.

Washington Catholic Hospitals Settle Suit Charging Them With Failure To Provide Charity Care

Washington state's attorney general yesterday announced the filing of a consent decree (full text) in State of Washington v. Franciscan Health System, (WA Super. Ct., April 29, 2019).  The settlement grows out of a lawsuit filed in 2017 against eight CHI Franciscan hospitals alleging that they violated the state's Consumer Protection Act by failing to make charity care available to tens of thousands of patients who were entitled to it under state law. As summarized by the AG's press release, the hospitals "will forgive as much as $20 million in debt, pay $2.22 million in refunds, pay the Attorney General’s Office $2.46 million, and rehabilitate the credit of thousands of patients who qualified for charity care between 2012 and 2017 but did not receive it."  The Consent Decree also requires detailed changes in the hospitals' procedures for providing financial assistance to patients.

Certiorari Denied In Church Trademark Dispute

The U.S. Supreme Court yesterday denied review in Universal Church, Inc. v. Toellner, (Docket No. 18-1159, certiorari denied 4/29/2019).  In the case, the U.S. Second Circuit Court of Appeals rejected a claim that the Universal Life Church had infringed the trademark of the Universal Church.  In Universal Church, Inc. v. Toellner, (2d Cir. Nov. 2, 2018), the court held that the term  "Universal Church" is generic in referring to religious counseling and evangelistic and ministerial services.

Satanic Temple Sues Over Withdrawal Of Permission To Erect Monument

Minneapolis Star Tribune reported yesterday that The Satanic Temple is suing Belle Plaine, Minnesota for its withdrawal of permission to erect a temporary memorial to fallen soldiers in Veterans' Memorial Park. The monument would have been the first Satanic monument on public property in the country. The paper reports on the sequence of events leading to the lawsuit:

... [I]n 2017 [the city approved a different organization's monument:] a steel silhouette known as “Joe” that depicted a soldier kneeling before a cross. Soon, someone complained that “Joe” violated constitutional separation of church and state.

City leaders, fearing a lawsuit, ordered its removal. That triggered weeks of vehement protests in the city.... So the council designated an area in the park as a “limited public forum,” open to temporary memorials to fallen veterans.

The Satanic Temple... applied to install its own monument.... The city granted a permit, and the temple designed a 23-inch black cube inscribed with inverted pentagrams and topped with an upturned helmet, which it planned to install in July 2017.

That plan prompted more protests. So exasperated city officials decided to shut down the limited public forum, ordering the removal of “Joe” and withdrawing permission for the temple’s monument.

[Thanks to Tom Rutledge for the lead.] 

Recent Articles of Interest

From SSRN:

• Linda R. Meyer, Unreasonable Revelations: God Told Me to Kill, (Pace Law Review, Forthcoming).
• Philip Ostien, Ahmed Garba & Musa Abubakar, Nigeria's Sharia Courts,  (Chapter 2 of Sharia Implementation in Northern Nigeria Twenty Years On: Six Research Reports and an Overview, M. Tabiu, A.R. Mustapha and P. Ostien, eds., Forthcoming).
• Lisa Whitacre, Putting the Squeeze on Lemon: Lund, Bormuth, and the False Line Between Chaplain-Led and Legislator-Led Prayer, (March 17, 2019).
• Bridget J. Crawford & Emily Gold Waldman, Ministerial Magic: Tax-Free Housing and Religious Employers, (University of Pennsylvania Journal of Constitutional Law Online, Forthcoming).
• Amanda Harmon Cooley, Justiciability and Judicial Fiat in Establishment Clause Cases Involving Religious Speech of Students, (March 30, 2019).
• Gautam Bhatia, Religious Speech, (The Oxford Handbook for Free Speech (Forthcoming)).
• Nicholas Aroney & Benjamin Saunders, Freedom of Religion in Australia, (in Matthew Groves, Daniel Meagher and Janina Boughey (eds), The Legal Protection of Rights in Australia (Hart Publishing, Forthcoming)).
• Kyle Velte, Straightwashing the Census, (March 22, 2019).

From SmartCILP:

• Helen Y. Chang, A Brief History of Anglo-Western Suicide: From Legal Wrong to Civil Right. 46 Southern University Law Review 150-194 (2018).

Texas "No Boycott of Israel" Law Held Unconstitutional

A Texas federal district court last week held unconstitutional the Texas statute requiring all state contracts for goods or services to include a written verification from the contracting company that it is not, and during the contract will not, boycott Israel. In Amawi v. Pflugerville Independent School District, (WD TX, April 25, 2019), a Texas federal district court granted a preliminary injunction against enforcement of the anti-BDS statute or enforcement of any clause in state contracts barring boycott of Israel.  The court, in a 56-page opinion, said in part:

Plaintiffs are likely to succeed on their claims that H.B. 89 is unconstitutional under the First Amendment because it (1) is an impermissible content- and viewpoint-based restriction on protected expression; (2) imposes unconstitutional conditions on public employment; (3) compels speech for an impermissible purpose; and (4) is void for vagueness.

The suit was brought by five individuals who wished to contract, or had contracted, to provide services such as speech therapy and early childhood evaluations for a school district; translation of an art essay for a state University museum; judging high school debate tournaments; and providing podcasts for a public radio station. The court concluded that all of these were contracts with sole proprietorships, and were thus covered by the statute. Washington Post reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Catholic Agency Challenges Michigan's Child-Placement Anti-Discrimination Policy

Last week, a second lawsuit was filed challenging a settlement entered into by Michigan's Attorney General in which she agreed to enforce anti-discrimination provisions against adoption and foster care agencies contracting with the state which refuse to place children with same-sex couples or LGBTQ individuals who are otherwise qualified as foster care or adoptive parents. The first challenge was filed earlier this month in federal court. In last week's lawsuit, Catholic Charities West Michigan v. Michigan Department of Health and Human Services, (MI Ct. Claims, filed 4/25/2019), filed in state court, the complaint (full text) cites protections for faith-based child placement agencies found in Michigan statutes such as MCL §722.124e and §722.124f, and alleges in part:

[T]he Michigan Legislature intended to-- and did-- protect the religious exercise of faith-based providers like Catholic Charities.... Defendants have adopted a new policy that forces Catholic charities to choose between violating its religious beliefs about same-sex marriage and shutting down its foster care and adoption ministry.  Defendants' new policy misinterprets state law, violates Catholic Charities' rights under the U.S. and Michigan Constitutions, and adopts the anti-religious views and policy preferences of Defendant Attorney General Dana Nessel-- who has previously criticized Michigan's statutory protections for faith-based foster care and adoption providers as "a victory for the hate mongers."

ADF issued a press release announcing the filing of the lawsuit.

Defamation Suit Dismissed On Ecclesiastical Abstention Grounds

In McRaney v. North American Mission Board of the Southern Baptist Convention, (ND MS, April 22, 2019), a Mississippi federal district court dismissed on ecclesiastical abstention grounds a defamation suit by a the former executive director of the Baptist Convention of Maryland and Delaware (BCMD).  Plaintiff contended that the North American Mission Board defamed him to BCMD and tortiously interfered with his employment contract.  The court said that resolution of plaintiff's claims would require it to determine whether the Mission Board had a valid religious reason for its actions-- and "That the court cannot do."  Baptist Press reports on the decision.

New York Archdiocese Releases Names of 120 Credibly Accused Clergy

On Friday, the Archdiocese of New York released a list of 120 clergy who have been credibly accused of sexually abusing a minor or possessing child pornography, or against whom a claim was found eligible for compensation by the Archdiocese's Independent Reconciliation and Compensation Program (IRCP).  Timothy Cardinal Dolan announced the release in a Pastoral Letter to members of the Archdiocese. Approximately 75% of the clergy on the list were ordained before 1970. Some 350 victims have been awarded compensation by the IRCP.  Only two cases have occurred since 2002. NPR reports on these developments.

Kansas Supreme Court Strikes Down D&E Abortion Ban

In Hodes & Nauser MDs, P.A. v. Schmidt, (KA Sip. Ct., April 26, 2019), the Kansas Supreme Court by a 6-1 vote upheld the trial court's injunction against the enforcement of S.B. 95 which bans, with limited exceptions, dilation and evacuation abortions in Kansas. The per curiam opinion of five justices said in part:

We hold today that section 1 of the Kansas Constitution Bill of Rights protects all Kansans' natural right of personal autonomy, which includes the right to control one's own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy.

Under our strict scrutiny standard, the State is prohibited from restricting that right unless it can show it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest. The Doctors have shown they are substantially likely to prevail on their claim that S.B. 95 does not meet this standard. So the trial court's temporary injunction enjoining the enforcement of S.B. 95 is appropriate.

On remand to the trial court for a full resolution of the issues on the merits, the State is certainly free to assert any interests it believes compelling and show how S.B. 95 is narrowly tailored to those interests. We are aware that the evidentiary record is sparsely developed because of the narrow issue previously before that court: simply whether a temporary injunction should be granted. We, thus, decline the concurring opinion's invitation to guess at what the arguments and evidence might be in order to provide guidance on remand.

Justice Biles filed a concurring opinion and Justice Stegall filed a dissent. The 3 opinions span 199 pages. NPR reports on the decision.

IRS Recognizes Satanic Temple As A "Church"

The Satanic Temple announced yesterday that the Internal Revenue Service has recognized the organization as a "church" for federal income tax purposes. It says that among other things this will assure its standing in court to challenge religious discrimination and will allow it to apply for faith based government grants.  Rolling Stone reports on this, adding:

Although the Satanic Temple had previously rejected pursuing tax-exempt status, church president Lucien Greaves reversed this stance in 2017 after President Trump signed a “religious freedom” executive order. “As ‘the religious’ are increasingly gaining ground as a privileged class, we must ensure that this privilege is available to all, and that superstition doesn’t gain exclusive rights over non-theistic religions or non-belief,” Greaves wrote in the Satanic Temple newsletter....

Suit Against "Muslim-Free" Gun Range Dropped After Sign Is Removed

Religion News Service reports that the ACLU and CAIR have filed a motion to dismiss their lawsuit against Save Yourself Survival and Tactical Gun Range in Oktaha, Oklahoma after the Gun Range removed its sign that had declared the business a "Muslim-free establishment." The business' owners have affirmed that they will not repost the sign and will not exclude Muslim customers.

Ohio Probate Court Lacks Jurisdiction To Change Nationality of Moorish Science Adherent

In In re Easterling, (OH App., April 24, 2019), an Ohio state appeals court affirmed a probate court's decision in a case brought by a member of the Moorish Science Temple of America. The probate court granted Douglas Easterling's request to change his name to Raphael Kulika Bey. However it denied his request to change his race from "Black/African American" to "Moor/Aboriginal American national." The appeals court held that Ohio probate courts lack jurisdiction to change a person's race or nationality. While the probate court has jurisdiction to correct a birth record, here petitioner's birth certificate did not list his race or nationality, so there was nothing to correct.

Indian Court Says Hindu Marriage Act Covers Marriage Involving Transgender Woman

A trial court in India has held that a marriage between a man and a transgender woman, both of whom profess the Hindu religion, is valid under the Hindu Marriage Act and the Registrar of Marriages is required to register the marriage. In Arunkumar v. Inspector General of Registration, (Madras High Ct., April 22, 2019), the court said in part:

For too long, the transgender persons/intersex people have been languishing in the margins. The Constitution of India is an enabling document. It is inviting them to join the mainstream. Therefore, it would be absurd to deny the transgenders the benefit of the social institutions already in place in the mainstream....

When the right of the transgender persons to marry has been upheld by the Hon'ble Supreme Court, in the very nature of things, they cannot be kept out of the purview of the Hindu Marriage Act.

Deccan Herald reports on the decision.

4th Circuit: Inmate Fails To Prove Causation In His RLUIPA And Free Exercise Claims

In Wright v. Lassiter, (4th Cir., April 17, 2019), the U.S. 4th Circuit Court of Appeals rejected a Rastafarian inmate's claims that his rights under RLUIPA and the 1st Amendment were infringed when prison officials rejected his request to celebrate four annual religious holidays through communal feasts and three others that do not include feasts. The court, holding that "plaintiff must show that the prison's policies imposed a substantial burden on his exercise of sincerely held religious beliefs," concluded that plaintiff failed to show the required causation:

...Wright’s causation problem stems from the fact that he has requested communal gatherings and feasts. There is no such thing as a community of one, and Wright agreed at oral argument that he was not seeking a feast for himself alone. He therefore had to show that, but for the policies that allegedly prohibit the requested holiday gatherings, other inmates would join in the gatherings.... There was no testimony showing that any other Rastafarian at Central Prison or any other North Carolina prison had joined in his requests to celebrate in the manner he requested or would attend his gatherings if they were held....

Supreme Court Hears Oral Arguments In Title VII Case

Yesterday the U.S. Supreme Court heard oral arguments (transcript of oral arguments) in Fort Bend County, Texas v. Davis. In the case, the 5th Circuit held that the the requirement a person exhaust administrative remedies before bringing a Title VII employment discrimination action is not jurisdictional.  This meant that the county's delay in raising the defense of exhaustion could result in its forfeiting its right to raise the defense. Charlotte Garden at SCOTUSblog reports on the oral arguments.

Condo's Sex Segregated Swim Hours Violate Fair Housing Act

In Curto v. A Country Place Condominium Association, (3d Cir., April 22, 2019), the U.S. 3rd Circuit Court of Appeals held that a condominium's mostly sex-segregated swimming hours, adopted in deference to a large number of Orthodox Jewish residents, violates the federal Fair Housing Act. Judge Ambro's opinion focused on the fact that the swim schedule discriminates against women. Weekday evening times were mostly allocated to men.  He concluded:

Women with regular-hour jobs thus have little access to the pool during the work week, and the schedule appears to reflect particular assumptions about the roles of men and women.

He concluded that defendant had waived any RFRA defense, and even if it had not, the condominium association lacks standing to assert the defense.  Judge Fuentes' concurring opinion added:

I write separately to express my skepticism that the pool’s sex-segregated schedule could be saved by a more even allocation of evening hours between men and women. Our jurisprudence makes clear that facial discrimination does not become lawful merely because its burdens are felt by members of both sexes. We would have no problem concluding, for example, that a pool schedule that allocates two-thirds of its hours to swimming segregated by race and one-third of its hours to “Integrated Swimming” would be intolerable under the FHA. And the FHA’s prohibition on discrimination does not distinguish between discrimination on the basis of sex and discrimination on the basis of race.

ACLU issued a press release announcing the decision.

Certiorari Denied In Priest's Libel Suit Against Diocese

Yesterday the U.S. Supreme Court denied review in Gallagher v. Diocese of Palm Beach, Inc., (Docket No. 18-964, certiorari denied, 4/22/2019) (Order List).  In the case,  a Florida state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a defamation suit brought by a Catholic priest against the diocese in which he served. (See prior posting.) The Florida Supreme Court had denied review in the case.  South Florida Sun Sentinel reports on yesterday's U.S. Supreme Court's denial of certiorari.