Ontario Court Upholds Requirement That Objecting Doctors Refer Patients to Others

In Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, (Ont. Ct. App., May 15, 2019), the Ontario Court of Appeal rejected a constitutional challenge to two policies of the College of Physicians and Surgeons of Ontario.  At issue is the requirement that physicians who object to providing any medical procedure or pharmaceuticals on the basis of religion or conscience must refer the patient to a non-objecting, available and accessible physician, health care professional or agency.  Physicians challenging the policies claimed they infringe their freedom of conscience and religion under Sec. 2(a) of the Canadian Charter of Rights and Freedoms by requiring them to be complicit in procedures such as abortion or aid in dying that violate their religious beliefs. In a 74-page opinion, the court held while the policies infringe religious liberty, the infringement is justified under Sec. 1 of the Charter, because they are reasonable limits, demonstrably justified in a free and democratic society. The Globe & Mail reports on the decision.

Burdensome Water Rates On Churches Challenged In Lawsuit

A suit was filed in a Texas state trial court this week challenging a Magnolia, Texas ordinance imposing disproportionately higher water rates on non-profit institutions, including churches. The higher rates were intended to make up for the city's inability under state law to collect property taxes from non-profit institutions. The complaint (full text) in Magnolia Bible Church v. City of Magnolia, (Montgomery Cty. Dist. Ct., filed 5/14/2019), contends that the city's actions violate state law, including the Texas Religious Freedom Restoration Act:

The Institutional Water Rate is void for three independent reasons. First, the Institutional Water Rate is a thinly veiled property tax on a tax-exempt entity, and, as such, it is preempted by state law. Second, even were the Institutional Water Rate not a tax, it would nonetheless be void as a discriminatory, arbitrary utility rate. Finally, by nearly tripling the Churches’ water bills (a substantial burden on free exercise of religion) simply because the Churches do not pay property taxes (an irrational, non-tailored justification), the Institutional Water Rate violates the TRFRA.

First Liberty issued a press release announcing the filing of the lawsuit.

Cert. Filed In Challenge To School's Curriculum On the Muslim World

A petition for certiorari (full text) was filed with the U.S. Supreme Court this week in Wood v. Arnold, (cert. filed 5/13/2019).  In the case, the U.S. 4th Circuit Court of Appeals rejected a high school student's Establishment Clause and compelled speech challenges to a classroom unit on The Muslim World.  One challenge was to the teacher's Power Point slide which included the statement that most Muslims' faith is stronger than that of the average Christian.  The other challenge was to the requirement on a work sheet for the student to fill in two words of the shahada. (See prior posting). Thomas More Law Center issued a press release announcing the filing of the petition for review.

Alabama Passes Restrictive Abortion Law; Other States Have Also

The Alabama legislature yesterday gave final passage to House Bill 314 (full text), which criminalizes the performance of abortions at any stage of pregnancy, except in cases of serious health risk to the mother, ectopic pregnancy or lethal anomaly in the unborn child. As reported by CNN, attempts to also include exceptions for rape or incest failed.  The Guardian today has an analysis of the growing number of states that are enacting, or attempting to enact, abortion restrictions that go beyond those permitted under current Supreme Court precedent, saying in part:

Anti-abortion campaigners have successfully enacted a ban on all or most abortions in seven Republican-led states: Alabama, Arkansas, Kentucky, Mississippi, North Dakota, Ohio and Georgia.

Alabama’s law, which must be signed by the Republican governor, is the most severe.

At least 61 bills like this have been introduced across the country, in states including Louisiana, Missouri, South Carolina, Tennessee, Maryland, Minnesota, Texas and West Virginia. Even in states considered safe havens for abortion rights, such as New York and Illinois, anti-abortion lawmakers have introduced bills as a kind of protest.

The wave of restrictions is due primarily to the Trump administration’s judicial picks. Anti-abortion campaigners believe the chances of further restricting abortion through court cases are better today than they were a year ago....

Generally, the anti-abortion elements are made up of social conservatives. The Christian right has fought against abortion rights for decades, but some of its most extreme proposals have only recently started to pick up steam. The Christian right is also one of the Trump administration’s most fervent bases of political support.

New Jersey Governor Signs Statute of Limitations Extension For Sex Abuse Claims

New Jersey Gov. Phil Murphy on Monday signed S. 477 (full text) (Governor's signing statement) (press release). The new law extends the statute of limitations for suits for sex abuse of claims by minors and adults. The accompanying statement of the Senate Judiciary Committee explains the new law's complex provisions in detail.  It summarizes the changes as follows:

This substitute bill would extend the statute of limitations in civil actions for sexual abuse claims, as well as create a two-year window for parties to bring previously time-barred actions based on sexual abuse. The bill would also expand the categories of potential defendants in civil actions, and for some actions permit retroactive application of standards of liability to past acts of abuse for which liability did not previously exist.

Abuse Survivors Sue Vatican

Five survivors of clergy sexual abuse filed a lawsuit yesterday in a Minnesota federal district court against the Vatican, seeking damages as well as release of the names of priests accused of child molestation and documents and information relating to the charges. The 77-page complaint (full text) in Keenan v. Holy See, (D MN, filed 5/14/2019) alleges various state causes of action as well as a claim of violation of international human rights law. AP reports on the lawsuit. A video of the press conference held by plaintiffs' lawyers to announce the filing of the lawsuit is also available online.

Court Rejects RFRA Claims By Former Street Gang Members

In People v. Latin Kings Street Gang, 2019 Ill. App. Unpub. LEXIS 852 (IL App., May 13, 2019), an Illinois appellate court rejected claims by former street gang members that the state violated Illinois Religious Freedom Restoration Act by bringing a frivolous lawsuit against them under the Illinois Streetgang Terrorism Omnibus Prevention Act .

The state sought to obtain damages from 79 individuals and enjoin them from further gang activity including meeting with members of the Latin Kings. Defendants contended that they had left the Latin Kings and become born-again Christians who met with current gang members in order to share the Christian Gospel with them.  They contend that after the suit was filed, they could no longer go into schools to speak with students about the danger of gangs, nor were they able to preach the Gospel to gang members out of fear of being arrested. The court concluded, however:

... [T]he lawsuit here did not constitute a substantial burden on defendants' religious exercise.... [D]efendants were still able to communicate their faith to Latin Kings gang members after the complaint was filed in this case. Oscar testified that he was not prevented from communicating his faith to Latin Kings in a different county or city. There were times when he wanted to reach out to gang members through Facebook to get together so he could share his faith with them, but felt that he could not do so because of the lawsuit. However, he conceded that no one told him that he could not do so and that he merely considered it an inconvenience. Elias testified how he communicated with gang members via text messages.... He did not state that the lawsuit prevented from engaging in such communication, and the record does not reflect that police were monitoring defendants' cell phones such that they would have discovered, and used against them, such evidence. Further, Ruben testified that he held Bible studies in his home and spoke about his faith at other churches.

Settlement Reached In Student Group's Challenge To Denial of Registered Status

A Settlement Agreement (full text) has been reached in Ratio Christi at the University of Colorado, Colorado Springs v. Sharkey, according to a press release today from ADF.  The  Christian group, Ratio Christi sued last year in a Colorado federal district court challenging the University of Colorado's denial to it of registered status. The University objected to the group's policies requiring its officers to personally hold Christian beliefs, and requiring prospective members to agree with and promote the organization's purposes. (See prior posting.)  Under the Settlement Agreement, the University will change its non-discrimination policy to provide:

All student clubs are permitted to require their leadership to promote the purposes of the club, to ascribe to sincerely held beliefs of the club, and/or to act in accordance with club standards.

However student clubs will not be permitted to limit membership on the basis of  "race, color, national origin, sex, pregnancy, age, disability, creed, political affiliation or philosophy, religion, sexual orientation, gender identity, gender expression, or veteran status." Ratio Christi will change its constitution to provide:

Students are not required to profess faith in, endorse, or adopt any religious beliefs to become members of the Chapter or participate in its activities. Any efforts to undermine or subvert the purposes enumerated in Article II will be addressed by the Chapter Officers in consultation with the Faculty Advisor and/or Chapter Director.

The University will also make a settlement payment to Ratio Christi of $20,574.

Town Says It Will Keep Crosses On Courthouse

LifeSite News reported yesterday on the latest controversy over crosses on pubic property.  Freedom From Religion Foundation has complained to authorities over the four crosses on the courthouse in the small town of Coldspring, Texas. Last week, the County Commissioners Court voted unanimously to keep the crosses after a three-hour public comment period attended two-thirds of the town's 900 population. Now officials are illuminating the crosses at night to support the decision.

Cert. Denied In Christian School Zoning Case

The U.S. Supreme Court today denied review in Tree of Life Christian Schools v. Upper Arlington, Ohio, (Docket No. 18-944, certiorari denied 5/13/2019). (Order List.)  In the case, the 6th Circuit in a 2-1 decision held that a private Christian school had failed to establish a prima facie case under the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act.  At issue was a  zoning prohibition on the operation of schools-- both secular and religious-- in the area zoned as an office and research center district. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Matthew Brown, Masterpiece Cakeshop: A Formula for Legislative Accommodations of Religion, (Akron Law Review, Forthcoming).
• Rory D. Bahadur, Newsworthiness as an Internet-Era Mitigant of Implicit Bias, (University of Missouri-Kansas City Law Review, Vol. 88, No. _, 2019, Forthcoming).
• Nadia N. Sawicki, The Conscience Defense to Malpractice, (California Law Review, 2020 Forthcoming).
• Elizabeth A. Brown, Inara Scott & Eric D. Yordy, R Corps: When Should Corporate Values Receive Religious Protection? , (Berkeley Business Law Journal, Forthcoming).
• Ryan T. Anderson, Challenges to True Fairness for All: How SOGI Laws Are Unlike Civil Liberties and Other Nondiscrimination Laws and How to Craft Better Policy and Get Nondiscrimination Laws Right, (Religious Freedom, LGBT Rights, and The Prospects for Common Ground (William Eskridge, Jr. and Robin Fretwell Wilson eds., Cambridge University Press, 2019).
• Paul Horwitz, Honor, Oath, and Office, (Capstone Lawyer (2019)).

From SSRN (non-U.S. law):

• M. Mohsin Alam Bhat, 'Muslim Caste' Under Indian Law: Between Uniformity, Autonomy and Equality, (Quaderni Di Diritto E Politica Ecclesiastica 20. Speciale (2017): 165-190).
• Jeroen Temperman, Education and Freedom of Religion or Belief under the European Convention on Human Rights and Protocol No. 1, (Jeroen Temperman, Jeremy Gunn, Malcolm Evans (eds.), The European Court of Human Rights and the Freedom of Religion or Belief: The 25 Years since Kokkinakis (Leiden: Brill, 2019), pp. 178–208).
• Jianlin Chen & Junyu Loveday Liu, Managing Religious Competition in China: Regulating Provisions of Charitable Activities by Religious Organizations, (in Regulating Religion in Asia: Norms, Modes and Challenges 207-230 (Jaclyn L. Neo, Arif A. Jamal, & Daniel P.S. Goh eds., Cambridge University Press 2019)).
• Douglas Castro, The (Un)practical Secularization Process: International Law and Religion as Social Realities, (Brazilian Journal of International Law, v.15, n.33, 2018, p.33-48).

From SmartCILP:

• Carlo A. Pedrioli, Pope Francis, Poverty, and the Third Persona, [Abstract], 21 Journal of Gender Race & Justice 367-393 (2018).
• Maria Bhatti. The Role of Shari'a in International Commercial Arbitration, 36 Wisconsin International Law Journal 46-86 (2018).

Gary Bauer Appointed To Additional Term On USCIRF

Last week, President Trump announced the appointment of Gary L. Bauer for an additional two-year term as a member of the U.S. Commission on International Religious Freedom. Bauer was initially appointed to USCIRF in 2019. He is President of American Values and Washington Director of Christians United for Israel Action Fund.

Transgender Student May Intervene In Suit Between Prof and University

In Meriwether v. Trustees of Shawnee State University, 2019 U.S. Dist. LEXIS 78771 (SD OH, May 9, 2019), an Ohio federal district court allowed a transgender student and an advocacy organization representing LGBTQ students to intervene in a lawsuit brought by a faculty member against the university over the university's enforcement of its non-discrimination policy.  The university disciplined plaintiff, a philosophy professor, for violating its policy that requires faculty to refer to students using pronouns consistent with the student's self-asserted gender identity. Plaintiff sued claiming that:

He is a "professing evangelical Christian" and member of the Presbyterian Church of America with sincerely-held religious beliefs about gender, and he does not believe that an individual's gender can be changed after the moment of conception. Because of his sincerely-held religious beliefs, he objects to communicating what he believes to be "a University-mandated ideological message regarding gender identity" that he does not believe and which "contradicts (and would force him to violate) his sincerely held religious beliefs."

In allowing intervention by the petitioners. the court found that the University will not adequately represent petitioners' interests, saying in part:

Shawnee State argues only that the Non-discrimination Policy challenged by plaintiff is a neutral rule of general applicability that is part of its obligations under Title IX and Title VII, not that the policy protects the rights of Doe and other transgender students.... Doe, the transgender student who filed the discrimination complaint which led to plaintiff's written warning, and SAGA, which represents transgender students like Doe, have an interest in insuring that Shawnee State's policies are construed and applied so as to protect their rights as transgender students. 

Court Properly Applied Neutral Principles In Dealing With Factional Dispute In Church

Nelson v. Brewer, (IL App., May 10, 2019), involved a dispute between two factions of a congregational church over control of the church, identity of its pastor and control of its property. The appellate court upheld the trial court's action under Sec. 112.55 of the Illinois Non-Profit Corporation Act appointing a custodian to secure the church's property and bring the church's corporate governance documents in to compliance with law. The court also, through a series of orders, provided for selection of a 5-person board for the church. The appellate court said in part:

We find the circuit court in this case properly applied the neutral principles of law as it found both parties have an equal right to PTC property and carefully applied section 112.55 of the Act to remediate the church’s corporate governance. The court specifically refused to issue an opinion as to who is the rightful pastor because that question is religious in nature. Instead the court limited its findings to corporate reorganization by examining PTC’s articles of incorporation, bylaws, other corporate governing documents, the land trust, and pertinent state statutes to resolve the matter.

Court Issues Permanent Injunction In RLUIPA Land Use Case

In Roman Catholic Archdiocese of Kansas City v. City of Mission Woods, (D KS, May 10, 2019), a Kansas federal district court issued a permanent injunction requiring the city of Mission Woods to approve the Catholic Archdiocese's land use application to allow it to convert a house next door to St. Rose Church into a meeting house.  In the case, a jury had found that the city violated the equal terms provisions of RLUIPA and awarded damages.  But the jury found for defendants on the Archdiocese's RLUIPA substantial burden and nondiscrimination claims, its First Amendment claims, and its Kansas state law claims. The court here held that, nevertheless, this amounts to success on the merits which supports the grant of an injunction. The court rejected defendant's argument that limited success on the merits is not enough to support an injunction.

Advocacy Group Is Critical of Pope's New Directive On Reporting of Sexual Abuse

As previously reported, yesterday Pope Francis issued an Apostolic Letter titled Vos Estis Lux Mundi setting out new procedures for mandatory reportingof sexual abuse to ecclesiastical authorities. The advocacy group ECA responded yesterday with a Statement (full text) critical of the Pope, saying the Letter "appears to be designed to make no significant or meaningful change in how bishops and the Vatican deal with cases of child sex crimes by priests." The Statement says in part:

First, there will continue to be no mandatory reporting requirements for sex abuse to civil authorities by priests and bishops and no penalties for failing to do so.... [T]he Vatican often claims that mandatory reporting cannot be done in certain countries. If this is the case, the Vatican needs to identify which countries this would entail and why an exemption from reporting is necessary in that country....

Second, the process of reporting, investigating and determining a case remains entirely secret and in-house with the local bishop who will remain in complete control of the investigative process and all the information....

Third, and maybe most significantly, nothing in the document establishes or enacts zero tolerance for sexual abuse by priests....

USCIRF Urges Trump Administration To Raise Religious Freedom In China Trade Talks

As White House trade negotiations with China continue, the U.S. Commission on International Religious Freedom today issued a release urging the Trump administration to discuss China’s persecution of religious communities with Chinese Vice Premier Liu He who is in Washington, DC for negotiations. USCIRF is particularly concerned with China's treatment of Uighur and other Muslims in Xinjiang. USCIRF Commissioner Gary Bauer said:

The communist Chinese government’s brutal campaign to ‘sinicize’ all religions is one of the worst abuses of religious freedom taking place today.  During these talks about our trade relationship with China, religious persecution and human rights more broadly must be on the table. This is about the right of every man and woman, whether Muslim or Buddhist or Christian or Falun Gong, to worship as he or she sees fit. At a time when the lives and freedoms of millions of Chinese people are under attack by their own government, we cannot, in good conscience, conduct trade negotiations with their leaders as if this didn’t matter.

Justice Department Supports Challenge To Vermont's Exclusion of Parochial Schools From College Program

Yesterday the U.S. Department of Justice filed a Statement of Interest (full text) in in A.M. v. French, (D VT, filed 5/9/2019). DOJ's filing supports the position of plaintiffs who are challenging the exclusion of religious private school students from Vermont's Dual Enrollment Program.  Under the program, high school students may take up to two courses at public or private colleges at state expense. However while public and other private schools and home schooled students are eligible, private religious school students are not. DOJ argues that this discriminates against students' religious expression. DOJ also issued a press release explaining its action.

Pope Francis Imposes New Reporting Procedures For Sex Abuse

Pope Francis today signed an Apostolic Letter titled Vos Estis Lux Mundi setting out new procedures for mandatory reporting to ecclesiastical authorities of sexual abuse of minors or vulnerable adults, of involvement with child pornography, and of interference with Church or civil investigations of abuse. Zenit has a summary, as well as the full text of the Pope's Apostolic Letter and the Vatican's accompanying statement, which says in part:

“Vos estis lux mundi” contains several innovative elements that aim to improve coordination between the dioceses and the Holy See. In particular, within a year all dioceses must establish stable and publicly accessible systems to report cases of sexual abuse and their cover up.

Furthermore, this Motu proprio obliges all clerics, as well as men and women religious, to report to the competent ecclesiastical authorities the abuses of which they become aware. The reported cases must thereafter be promptly verified and handled in accordance with canon law. As for reports regarding Bishops, the Motu proprio introduces procedural measures that, as a rule, charge the Metropolitan of the pertinent ecclesiastical Province with verifying what has been reported. Also established for the first time are time restrictions within which investigations must be carried out, as well as the procedures to be followed by the Metropolitan, who can make use of the specific professional contributions of the lay faithful.

Finally, the Motu proprio emphasizes the care of people harmed and the importance of welcoming them, listening to them and accompanying them, offering them the spiritual and medical assistance they need.

Vatican News reports on the new document. [Thanks to Tom Rutledge for the lead.]

Plaintiff Challenging Vaccination Requirements Contracts Chicken Pox

A high school senior who recently lost his attempt to enjoin enforcement of steps taken by a local Kentucky health department to control an outbreak of chicken pox at a Catholic high school has now come down with chicken pox, according to the Cincinnati Enquirer. Jerome Kunkel, who objects on religious grounds to the vaccine because it was originally produced using cells from an aborted fetus, had a religious exemption from vaccination requirements, as did most of his classmates at a conservative Catholic high school. Kunkel's lawyer said that about half of his clients have contracted the disease. He told them that contracting chicken pox, which creates immunity, was the quickest way to resolve their dispute with the county's extra-curricular and school attendance bans on student who are not immune.