Proposed HHS Rule Would Eliminate Transgender Protections

Last week the Department oj Health and Human Services issued a proposed rule (full text) that would eliminate protections against discrimination in health care where the discrimination is on the basis of gender identity or termination of pregnancy.  Health Leaders reports on the proposed rule.

Russian Appeals Court Upholds Sentence of Jehovah's Witness

Moscow Times reports today that a 3-judge panel of a Russian appellate court has upheld the 6-year sentence of a Danish Jehovah's Witness adherent who was convicted of organizing a banned "extremist group".  According to the Times:

Armed police detained Dennis Christensen, a builder, in May 2017 at a prayer meeting in Oryol, some 200 miles (320 kilometers) south of Moscow after a court in the region outlawed the local Jehovah's Witnesses a year earlier.

Priest Sexual Assault Case Settled

The Fresno Bee this week reports on the settlement of a claim by a woman that she was sexually assaulted by a Catholic priest:

A Woodland woman has received a $200,000 settlement from the Sacramento Catholic Diocese and the current pastor of a Woodland church after filing a lawsuit in 2017 accusing a former priest of sexual assault and claiming church officials largely ignored her pleas for help.

Senior Community Management Sued Over Ban on Bible Study Groups and Public Prayer

A lawsuit was filed this week in a Virginia federal district court by a retired pastor and his wife against a senior living community where they lived.  The complaint (full text) in Hauge v. Community Realty Company, Inc., (ED VA, filed 5/21/2019), alleges that the community's management discriminated against plaintiffs on the basis of religion by acceding to demands of other residents to bar plaintiffs' followers from publicly saying grace before their meals, and prohibiting plaintiffs from hosting Bible Study anywhere in the living complex.  The suit contends that management's actions violated federal and state fair housing laws.  First Liberty issued a press release announcing the filing of the lawsuit.

States and Cities Sue Administration Over Expanded Health Care Conscience Rules

Yesterday 19 states, the District of Columbia as well as New York City, Chicago and Cook County, Illinois together filed suit in a New York federal district court challenging rules recently adopted by the Department of Health and Human Services (see prior posting) expanding the protection of conscience rights of health care providers. The rules were formally published in the Federal Register yesterday. The 80-page complaint (full text) in State of New York v. U.S. Department of Health and Human Services, (SD NY, filed 5/21/2019) alleges in part:

This lawsuit challenges a U.S. Department of Health and Human Services regulation that – in an unprecedented and unlawful expansion of nearly thirty federal statutory provisions – would compel the Plaintiff States and local jurisdictions to grant to individual health providers the categorical right to deny lawful and medically necessary treatment, services, and information to patients, based on the provider’s own personal views.... [I]t will undermine the Plaintiffs’ ability to administer their health care systems and deliver patient care effectively and efficiently.

[T]he Final Rule seeks to coerce the Plaintiffs to comply with the Department’s overbroad application of federal law by subjecting the Plaintiffs to ... denial of potentially all federal health care funds if the Department determines... that the Plaintiffs... have failed to comply with the Final Rule... [T]his financial exposure could amount to hundreds of billions of dollars each year.

...The Final Rule far exceeds in scope and substance the underlying federal health care statutes...; conflicts with federal statutes regarding access to health care, informed consent, the provision of emergency medical services, and religious accommodations; violates constitutional safeguards that assign the spending power to Congress and prohibit the Executive Branch from coercing states to implement preferred federal policies; and violates the Establishment Clause by imposing a categorical requirement that Plaintiffs accommodate the religious objections of their employees, whatever the cost.

New York's Attorney General issued a press release announcing the law suit.

Separately, the state of California filed a similar challenge. The complaint (full text) in State of California v. Azar. (ND CA, filed 5/21/2019) is discussed in this press release from the California Attorney General.

3rd Circuit Hears Arguments In Contraceptive Mandate Case

Yesterday the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Commonwealth of Pennsylvania v. President of the United States. In the case, a Pennsylvania federal district court granted a nationwide preliminary injunction  against enforcement of the Interim Final Rules issued by the Trump Administration that expanded exemptions from the Affordable Care Act's contraceptive coverage mandate for those with religious or moral objections. (See prior posting.) Courthouse News Service reports on the oral arguments.

House Passes Equality Act To Ban LGBTQ Discrimination

The U.S. House of Representatives last Friday passed H.R. 5, the Equality Act (full text) by a vote of  236-173 (largely along party lines). The bill, which now goes to the Senate, amends various federal anti-discrimination laws to provide that the ban on sex discrimination includes sexual orientation and gender identity. Roll Call reports on the House action.

New Rules For Federal Workers' Comp Time To Make Up For Religious Observance

This month's issue of the Justice Department's publication Religious Freedom in Focus calls attention to rules adopted last month by the Office of Personnel Management allowing federal employees to earn compensatory time in order to take off from work on their religious days of rest.  The new rules, which implement 5 USC § 5550a, clarify prior more skeletal provisions that were previously in force. (Full text of Rules effective May 29, 2019).

Certiorari Denied In California Reparative Therapy Ban Challenge

The U.S.Supreme Court today denied review in Pickup v. Newsom, (Docket No. 18-1244, certiorari denied 5/20/2019). (Order List). In the case, the 9th Circuit Court of Appeals upheld the constitutionality of California's ban on state-licensed mental health providers engaging in sexual orientation change efforts with patients under 18. (See prior posting.)

Review Denied In Deportation of Iraqi Christian

The U.S. Supreme Court today denied review in Shabo v. Barr, (Docket No. 18-827, certiorari denied 5/20/2019). (Order List).  In the case, the U.S. 6th Circuit Court of Appeals refused to grant relief under the Convention Against Torture to an Iraqi in the United States who was being deported after serving 5 years in prison for a drug conviction.  Appellant claimed that as a Chaldean Christian he would be subject to torture if he returned to Iraq. National Law Journal reports on the case.

British Divorce Case Poses Catch-22 For Jewish Husband

The Daily Mail reported last week on arguments in Britain's Court of Appeal in a divorce case involving a Jewish couple in which the husband claims that the trial court's order creates problems under Jewish religious law.  In order to force the millionaire husband Alan Moher to grant his wife a Jewish bill of divorce, the trial court ordered that he pay maintenance of £1,850 per month until he grants his wife a Get. Moher argues however that a Get is invalid under Jewish law if it is not granted freely, and this means the maintenance order prevents him from providing a valid Get.  According to the husband's attorney:

The imposition of a financial sanction on a party, in a bid to force them to grant a Get, invalidates the Get under religious law.

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

Florida Enacts New School Voucher Program [Corrected]

On May 10, Florida's Governor Ron DeSantis signed Senate Bill 7070 (full text) (legislative history).  Among other things, the bill creates a Family Empowerment Scholarship Program which offers school vouchers to students from low-income families.  The awards may be used at sectarian as well as non-sectarian private schools.  Reporting on the new law, Blog from the Capital points out that the Florida Supreme Court ruled a similar law unconstitutional in 2006.

FLDS Bishop Convicted By Canadian Court In Marriage of His Minor Daughter

In Regina v. Oler, (B.C. Sup. Ct., May 17, 2019), a British Columbia trial court found Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) Bishop James Oler guilty under Canadian Criminal Code §273.3(1)(b) of removing his 15-year old daughter from Canada for purposes of sexual exploitation. As summarized by the court:

The Crown alleges that upon receipt of instructions from Warren Jeffs on June 23, 2004, Mr. Oler facilitated the removal of his daughter C.E.O. from Canada and transported her together with others to Cedar City, Utah, on June 24, 2004, and then to Mesquite, Nevada where C.E.O. was married to James Leroy Johnson on June 25, 2004, by Warren Jeffs in the presence of Mr. Oler. In doing so, Mr. Oler foresaw that upon her marriage, C.E.O. would be the subject of sexual contact which, if it had occurred in Canada, would be prohibited by s. 153 of the Code.

Lethbridge News reports on the case.

Recent Articles of Interest

From SSRN:

• Stephanie H. Barclay, First Amendment Categories of Harm, (95 Indiana Law Journal (2020 Forthcoming)).
• Paul Horwitz, A Close Reading of Barnette, in Honor of Vincent Blasi, (13 FIU L. Rev. 689 (2019)).
• Joel Harrison, Towards Re-Thinking ‘Balancing’ in the Courts and the Legislature’s Role in Protecting Religious Liberty, (Forthcoming, (2019) Australian Law Journal (93)(9) ).
• Puranjay K. Vedi, Introduction to Secularism, (February 1, 2019).
• Emima Alistar (Hîrlav), The Relation Between Law and Morality (April 25, 2019).
• Mayo Moran, Cardinal Sins: How the Catholic Church Sexual Abuse Crisis Changed Private Law, (Forthcoming in the Georgetown Journal of Gender and the Law, XXI (2019)).
• Cameron Pontiff, Liberty and Justice, The Privilege of Straight Men: An Analysis of Louisiana's Surrogacy and Filiation Laws as They Relate to Same-Sex Couples, (The Journal of Race, Gender and Poverty (2019)).
• Avidan Cover, Quieting the Court: Lessons from The Muslim-Ban Case, (Journal of Gender, Race and Justice, Vol. 23, 2019, Forthcoming).
• Eric Merriam, Fire, Aim, Ready! Militarizing Animus: 'Unit Cohesion' and the Transgender Ban, Dickinson Law Review, Vol. 123:57 (2018).

From SSRN (Sharia law):

• Ismail Y. Syed, Interest in Sharia: Legal Consequences and Penal Aspects in Sharia, (April 13, 2018).
• Titus Corlatean, The Incompatibility of the Sharia Law and the Cairo Declaration on Human Rights in Islam with the European Convention on Human Rights, (April 25, 2019).
• Mohamad Soleh Nurzaman & Fika Khanifa Kurniaeny, Achieving Sustainable Impact of Zakāh in Community Development Programs, (Islamic Economic Studies, Vol. 26, No. 2, 2019).

From SmartCILP:

• Philippa Watson & Peter Oliver, Is the Court of Justice of the European Union Finding Its Religion?, 42 Fordham International Law Journal 847-873 (2019).
• Richard A. Dean, Trump v. Hawaii Is Korematsu All Over Again, 29 George Mason University Civil Rights Law Journal 175-189 (2019).

Christian Wedding Services Owner Loses Challenge To Colorado's Public Accommodation Law

303 Creative LLC v. Elenis, (D CO, May 17, 2019), is another in the growing line of cases in which Christian wedding service providers refuse on religious grounds to make their services available for same sex weddings.  Here plaintiff Lorie Smith wanted to expand her business to design custom websites for couples planning weddings. However she would not provide her services for same-sex weddings.  In the case, a Colorado federal district court rejected a constitutional challenge to the application of the "communications clause" of Colorado's public accommodation law to Lorie Smith's business.  That law prohibits publication of any notice or advertisement indicating that services will be withheld on the basis of, among other things, sexual orientation. The court rejected both 1st and 14th Amendment claims.

In their equal protection challenge, plaintiffs argued that the Colorado Civil Rights Commission has applied the law only where business owners disfavor same sex marriages, but not to refusals to produce products with pro-religious messages. The court concluded however that businesses in the other cases were not similarly situated to plaintiff's business.

In rejecting plaintiffs' free speech challenge, the court emphasized that only the clause in the law barring communication of an intent to discriminate was at issue.  The court assumed, for purposes of its decision, that the law's "accommodation clause" which is a substantive ban on discrimination is constitutional. This led it to conclude that under Supreme Court precedent:

the government’s ability to regulate unlawful economic activity allows it to prohibit advertisements of this type, even if it must do so by defining the prohibited message based on its content.

The court rejected plaintiffs' Free Exercise challenge, finding that the communications clause is a neutral of general applicability.

Alito Weighs In Late On Buddhist Inmate's Request For His Spiritual Adviser At His Execution

As previously reported, late on March 28, the U.S. Supreme Court In Murphy v. Collier ruled in favor of Buddhist prisoner Patrick Murphy who wanted his Buddhist spiritual adviser to be present in the execution chamber when his execution was carried out. At that time it was indicated that Justices Thomas and Gorsuch voted against granting the stay. This week, on May 13, Justice Alito filed an opinion (full text) dissenting from the grant of the stay. Justices Thomas and Gorsuch joined the opinion.

In the present case, Murphy cannot overcome the presumption against last-minute applications. As I will explain, see Part III, infra, his religious liberty claims are dependent on the resolution of fact-intensive questions that simply cannot be decided without adequate proceedings and findings at the trial level. Those questions cannot be properly resolved in a matter of hours on a woefully deficient record. But that is precisely what Murphy asked of the lower courts and this Court.

Justice Alito did not explain why he was not listed originally as dissenting from the grant of the stay of execution. He merely said in this week's opinion:

I did not agree with the decision of the Court when it was made. Because inexcusably late stay applications present a recurring and important problem and because religious liberty claims like Murphy’s may come before the Court in future cases, I write now to explain why, in my judgment, the Court’s decision in this case was seriously wrong. 

Justice Kavanaugh, in an opinion joined by Chief Justice Roberts, responded to Justice Alito, saying in part:

Put simply, this Court’s stay facilitated the prompt resolution of a significant religious equality problem with the State’s execution protocol and should alleviate any future litigation delays or disruptions that otherwise might have occurred as a result of the State’s prior discriminatory policy.

Battle For Control Over Christian Broadcasting and Relief Organization

An Indiana federal district court last week allowed plaintiffs to move ahead with most of their claims in a lawsuit between two cousins in their battle to control of LeSEA, described by the court as:

a Christian non-profit organization based in South Bend, Indiana and with wide-ranging operations. LeSEA was founded by Dr. Lester Frank Sumrall (grandfather of defendant Lester Sumrall) in 1957 and has grown to operate churches, bookstores, a Bible college, a large food and disaster relief operation, as well as a series of television and radio broadcast networks focused on religious programming.

In  LeSEA Inc. v. LeSEA Broadcasting Corp., (ND IN, May 10, 2019), the court described the legal issues involved:

The gist of the case involves allegations of a wide ranging attempt to steal trademarks and other intellectual property as well as a host of alleged state law violations sounding mostly in conversion and other intentional torts.

The Indiana Lawyer, reporting on the decision, said in part:

Two “warring cousins” who each claim to be the rightful heir to the South Bend-based LeSEA Christian broadcasting network will continue to slug it out after a federal judge largely denied one cousin’s motion to dismiss.

6th Circuit Orders New Trial Because of Prosecutors' References To Religion

In United States v. Acosta, (6th Cir., May 15, 2019), the U.S. 6th Circuit Court of Appeals granted a new trial to two defendants who had been convicted of drug violations. The vacating of defendants' convictions stemmed in large part from the prosecutor's comments at trial regarding the religious practices of one of the defendants. The prosecutor questioned the defendant about a shrine to Jesus Malverde found in his home. Malverde is a folk saint of drug traffickers. Then, in closing, the prosecutor said to the jury:

Another shocking thing yesterday was the defendant, Mr. Morales’ [sic] testimony. Thou shall not have any Gods before me. I’ve never ever seen a defendant admit to worshiping Malverde. I’m not going to call it a saint, I’m going to use the word and call it a deity. He worships a deity . . . . He prayed for protection from police. He prays that he doesn’t get caught.

... I wonder how many prayers he has said to Malverde before he walked into the courtroom yesterday. I wonder if what’s going through his mind this morning was, I’m going to say another prayer for protection from the jurors of Central Kentucky....

Luis Morales [sic], the worshiper of a deity of a drug trafficking entity who prays for protection from police, prosecutors, court systems and juries. Is he entitled to any credibility for what he said? No, not at all.

Louisville Courier-Journal reports on the decision.

VA Will Remove Unauthorized Religious Additions To Medical Center Display

As previously reported, earlier this month a suit was filed in New Hampshire federal district court against a VA Medical Center challenging a lobby "Missing Man" display that includes a Bible that was carried by a prisoner of war in World War II.  Yesterday, according to the New Hampshire Union Leader, a patient at the VA Center added items representing different religious traditions to the display--  books from the Jewish, Muslim, Mormon and Wiccan faiths, and a blank tablet to represent non-faith traditions. The VA is not happy about the additions. A spokesman said:

We will not tolerate interference with and/or alteration of approved displays — such as this Northeast POW/MIA Network-sponsored POW/MIA table — and as a result these items will be removed.

Court Rejects Christian Adoption Agency's Challenge To Anti-Discrimination Regulation

In New Hope Family Services v. Poole, (ND NY, May 16, 2019), a New York federal district court rejected a constitutional challenge by a Christian adoption agency to New York's anti-discrimination provisions. Regulations of New York's Office of Children & Family Services prohibit adoption agencies from discriminating, among other things, on the basis of sexual orientation, gender identity or marital status. New Hope Family Services will not place children with same-sex couples or with unmarried couples. Inquiries from such couples are referred to other agencies. The court rejected New Hope's contention that the regulation violates its free exercise rights because it was adopted to target faith-based agencies.  Instead, the court found that the regulation "is facially neutral and generally applicable, and that it has been neutrally and generally applied in this case...." The court also rejected New Hope's free speech and equal protection challenges to New York's regulation. In a press release, ADF said that the decision is likely to be appealed.