Court Refuses To Dismiss Challenge To Nativity Scene

In Woodring v. Jackson County, Indiana, (SD IN, Sept. 30, 2019), an Indiana federal district court refused to dismiss an Establishment Clause challenge to a nativity scene that is placed on the Jackson County courthouse lawn each December.  The court said in part:

The Court has no doubt that a lone nativity scene of this size on prominent display on government property would be one of those nativity scenes that gives a reasonable viewer the impression of religious endorsement. Here, however, the nativity scene is not on its own. It is accompanied by two other arguably secular symbols of Christmas: Santa Claus and a group of Christmas carolers.

Nevertheless, two facts alleged in Woodring’s Complaint persuade the Court that this nativity scene would give a reasonable observer the impression that the government is endorsing a religion. The first of those facts is the geography of the display. According to the Complaint, Santa and the carolers are placed “to the far side of the display, away from the side of the sidewalk where the crèche is located.” .... 

That brings the Court to the second decisive fact. The history of this display is that, for many years, it was only a nativity scene. But just recently, after a complaint from the Freedom from Religion Foundation, Jackson County added some secular symbols as a palliative.

Seymour Indiana Tribune reports on the decision.

Lawsuit Claims Deputy Coerced Driver To Be Baptized

The Chattanooga Times Free Press reports on an unusual lawsuit filed this week by a woman against two Hamilton County (TN) sheriff's deputies in a Tennessee state trial court.  The lawsuit, asking for $11 million in damages, alleges that Deputy Daniel Wilkey initiated an unjustified traffic stop of plaintiff, and then conducted an intrusive pat down search of her for methamphetamine.  He discovered only a marijuana cigarette butt. Then, according to the paper:

After searching the woman's vehicle, he asked her if she had ever been "saved" and whether she believed in Jesus Christ, the lawsuit states. He told her that God was "talking to him during the vehicle search" and that he "felt the Lord wanted him to baptize [her]."

Wilkey then told her to go inside the home she was visiting and grab two towels for a baptism.... He said if she let him baptize her, he would issue her only a criminal citation for the possession of marijuana.....

When the woman returned outside, Wilkey told her to drive her own vehicle and follow him..... [T]hey eventually arrived at a boat ramp at Soddy Lake.... At that point, another deputy — Jacob Goforth — arrived.... Wilkey told the woman that Goforth was there because, "in order for a baptism to be valid, a witness must 'attest' to the ritual."

Wilkey then "stripped nearly naked".... He then led her into nearly waist-deep water, placed one hand on her back and the other on her breasts and completely submerged her under the water....

Pompeo Speaks At Vatican Symposium On Faith-Based Organizations

Secretary of State Mike Pompeo spoke yesterday (full text and video of remarks) in the Vatican at a symposium titled Pathways to Achieving Human Dignity: Partnering with Faith-Based Organizations. The event was co-sponsored by the Holy See’s Secretariat of State and the U.S. Embassy to the Holy See. (Background on event). In his remarks, Secretary Pompeo particularly highlighted the persecution of Uighurs in China, but called out a number of other nations as well, saying in part:

We must recognize the roots of religious repression.  Authoritarian regimes and autocrats will never accept a power higher than their own.  And that causes all sorts of assaults on human dignity.

We must exercise our moral voice to confront them.

Chabad House's Suit Against Zoning Officials Is Dismissed

In Friends of Lubavitch v. Baltimore County, Maryland, (D MD, Sept. 30, 2019), a Maryland federal district court dismissed a suit in which a Chabad House serving students at Towson University and Goucher College challenged a state court order requiring it to raze the expansion of its building which was constructed in violation of zoning rules and a deed restriction.  Plaintiff claimed that implementation of the county's land use rules infringed its rights under RLUIPA and the 1st and 14th Amendments.

Cert. Filed By Little Sisters of the Poor Over Contraceptive Mandate Exemption

A petition for certiorari (full text) was filed yesterday, captioned Little Sisters of the Poor Saints Peter and Paul Home v. Commonwealth of Pennsylvania, (U.S. Sup. Ct., filed 10/1/2019). The petition seeks review of the 3rd Circuit's decision in Commonwealth of Pennsylvania v. President of the United States of America which affirmed a district court's entry of a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding the scope of the exemptions under the Affordable Care Act for employers having religious or moral objections to contraceptive coverage. (See prior posting.) Little Sisters of the Poor who are seeking Supreme Court review were intervenors in the 3rd Circuit case. (See prior posting.) The petition for review sets out the questions presented:

1. Whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court?

2. Whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage?

Becket issued a press release announcing the filing of the cert. petition.

Courts Rule On Virginia and Georgia Abortion Statutes

In Falls Church Medical Center, LLC v. Oliver, (ED VA, Sept. 30, 2019), a Virginia federal district court upheld some parts of Virginia's statute regulating abortions, but invalidated other parts, saying in part:

[E]nforcement of the ... Guidelines with respect to first trimester abortion procedures, and the requirement that non-surgical second trimester abortion procedures-up to the point of viability-be performed in outpatient surgical hospitals, present a substantial obstacle to women seeking an abortion and impose an undue burden on that right, in violation of the Due Process Clause of the Fourteenth Amendment.... On the other hand, evidence of the heightened potential for complications warrant the requirement that surgical abortion procedures during the second trimester should be performed in a hospital setting.

... [B]ased on a seamless line of authority, this Court cannot conclude that the Physician-Only law ... is either unduly burdensome or improvident when weighed against the State's well-recognized responsibility for ensuring safe abortion care.

... Plaintiffs have failed to demonstrate by a preponderance of the evidence that ... requiring a mandatory ultrasound and waiting period, amount to a substantial obstacle preventing a woman's access to abortion care in Virginia. Plaintiffs have further failed to show that the statute's informed consent requirement imposes an undue burden.

Undoubtedly, the requirement that abortion clinics submit to biennial inspection ... is burdensome for clinic personnel. However, it is no more burdensome than inspection requirements for other medical facilities that provide similar services....

AP reports on the decision.

In SisterSong Women of Color Reproductive Justice Collective v. Kemp, (ND GA, Oct. 1, 2019), a Georgia federal district court issued a preliminary injunction against enforcement of Georgia's statute that prohibits abortions after detection of a fetal heartbeat.  The court said in part:

Plaintiffs have therefore met their burden of showing that H.B. 481, in prohibiting abortions after a fetal heartbeat is detectable, would operate as “a substantial obstacle to a woman’s choice to undergo an abortion” in “a large fraction” of relevant cases.....

Furthermore, as discussed above in detail, the Supreme Court has repeatedly and unequivocally held that a State may not ban abortion prior to viability.

Center for Reproductive Rights issued a press release announcing the decision.

Christian Student Group Can Retain Selective Leadership Requirements

In Intervarsity Christian Fellowship USA v. University of Iowa, (SD IA, Sept. 27, 2019), an Iowa federal district court held that the University of Iowa and three of its administrators violated the free speech and free exercise rights of a Christian student organization when it revoked its registered student organization status. The University's action was taken because Intervarsity Christian Fellowship required its leaders to affirm the groups Christian statement of faith. The court said in part:

by granting the exceptions it has to the Human Rights Policy and refusing to make a similar exception for InterVarsity, the University has made a value judgment that its secular reasons for deviating from the Human Rights Policy are more important than InterVarsity’s religious reasons for the deviation it seeks. Because this reflects an impermissible “value judgment in favor of secular motivations,” ... the University’s decision to deregister InterVarsity is subject to strict scrutiny.

Becket issued a press release announcing the decision.

Fired Teacher Sues Saying Requirements On Pronouns For Transgender Students Violated His Rights

A Virginia high school teacher filed suit yesterday in a Virginia state trial court challenging his firing for refusing to use male pronouns to refer to a transgender student in his French class.  The complaint (full text) in Vlaming v. West Point School Board, (VA Cir. Ct., filed 10/1-/2019), claims that the teacher's free speech and free exercise rights, as well as other rights, were violated. Plaintiff contends that the case is

about whether the government may force [plaintiff] to express ideas about human nature, unrelated to the school's curriculum, that he believes are false.

Plaintiff also contends that

[his] views and expression related to gender identity, would require [him] to violate his sincerely held religious beliefs.

Washington Post reports on the lawsuit.

President Trump Sends Rosh Hashanah Greetings

The White House today issued a Presidential Statement on Rosh Hashanah (full text). The holiday begins this evening.  The statement says in part:

...[W]e are all reminded of the virtues we can incorporate into our lives to better us as a Nation—kindness, compassion, and love. Together, with devotion to these ideals, we can form more sincere bonds with people of all faiths to help spread peace and prosperity in the United States and abroad.

Melania and I pray that those celebrating Rosh Hashanah build a more meaningful relationship with God throughout the High Holy Days.  May the Almighty bless you all.

Recent Articles of Interest

From SSRN:

• Patrick Parkinson, Is Gender Identity Discrimination a Religious Freedom Issue?, (September 6, 2019).
• Robin Fretwell Wilson, Family Law Isolationism and 'Church, State, and Family', (Forthcoming, Emory Journal of Law and Religion).
• Nicholas Aroney, Religious Discrimination and Religious Freedom: An Evaluation of the Exposure Draft of the Australian Religious Discrimination Bill 2019, (September 17, 2019).
• Steven Douglas Smith, One Step Enough, (San Diego Legal Studies Paper No. 19-414 (2019)).
• Sean T. Murphy, Philippines RH Act: Rx for Controversy Diatribe by Philippines’ President Turns Back the Clock, (September 16, 2019).
• James Rooney, International Human Rights as a Source of Unenumerated Rights: Lessons from the Natural Law, (September 5, 2019).
• Elias Al-Hihi & Asem Khalil, International Law within the Palestinian Legal System: A Call for Granting Human Rights Treaties a Special Constitutional Status, (September 13, 2019).
• Dale Carpenter, Born in Dissent: Free Speech and Gay Rights, (72 SMU Law Review 375 (2019)).
• Maryam Saeed, Challenges of Islamic Insurance (Takaful) Globally, (COMSATS Journal of Islamic Finance, 2019).
• Morr Link & Yoram Haftel, Islamic Legal Tradition and the Choice of Investment Arbitration Forums, (The Review of International Political Economy, Forthcoming).

Court In Indian State Bans Animal Sacrifice

In Bhattacharjee v. State of  Tripura, (Tripura High Ct., Sept. 27, 2019), a 2-judge panel of the High Court in a state in northeast India prohibited the sacrifice of animals or birds in any temples in the state. In its 72-page opinion, the court held that only practices which are an "essential and integral part of religion" are protected by Art. 25(1) of India's Constitution.  The court said in part:

[I]t cannot be said that the practice of animal sacrifice is essential to the core of the tenets rituals, ceremonies, ceremonies, beliefs observances or the practice of religion within the temple of Mata Tripureswari or other temples managed by the State within the State of Tripura....

In the instant case, sacrifice of animal in temples is not done out of necessity but merely on the unsighted conviction and credence that such activity would please the deity, who in return would bestow them with blessings and wellbeing. ...

The ban on sacrifice of animal ... does not infringe the fundamental right as enshrined in Part III under Art 25(1) of the constitution for the reason that such practice is contrary to constitutional morality and health....

The animals have basic rights and we have to recognise and protect them. The animal and bird breath like us. They are also creation of God. They have also a right to live in harmony with human beings and the nature.... 

The Leaflet discusses the decision at length.

DOJ Backs Catholic Archdiocese In Firing of Teacher For Same-Sex Marriage

On Friday, the Department of Justice filed a Statement of Interest (full text) in an Indiana state trial court in Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., (IN Super Ct., 9/27/2019).  In the suit, a teacher in a Catholic school in Indianapolis claims that the Archdiocese wrongly interfered with his contractual relationship with the school when the Archdiocese ordered the school to dismiss the teacher because of his public same-sex marriage. (See prior posting.)  DOJ argued that the First Amendment requires the court to dismiss the teacher's complaint:

The First Amendment bars this action for at least two independent reasons. First, Plaintiff’s action seeks to penalize an indisputably expressive association—the Archdiocese—for deciding which schools may identify as Catholic under its associational umbrella.....

Second, Plaintiff seeks to embroil this Court in a dispute over the Archdiocese’s application of Catholic law, in violation of the church-autonomy doctrine.

A Justice Department press release announced its filing with the court.

Michigan Catholic Adoption Agency Gets Preliminary Injunction Protecting Its Policy on LGBTQ Couples

In Buck v. Gordon, (WD MI, Sept. 26, 2019), a Michigan federal district court issued a preliminary injunction to prevent the state from requiring that a Catholic adoption and foster care agency place children with same-sex couples. The agency currently refers such couples to other agencies.  As summarized by the court:

The State pays St. Vincent to place children with foster or adoptive parents certified as suitable by the State. St. Vincent has done that faithfully, regardless of whether the certified parents were opposite sex, same-sex, or unmarried couples. St. Vincent would like to continue doing so under existing and renewed contracts with the State.  

What St. Vincent has not done and will not do is give up its traditional Catholic belief that marriage as instituted by God is for one man and one woman. Based on that belief, St. Vincent has exercised its discretion to ensure that it is not in the position of having to review and recommend to the State whether to certify a same-sex or unmarried couple, and to refer those cases to agencies that do not have a religious confession preventing an honest evaluation and recommendation. In 2015, the Michigan legislature enacted legislation designed to protect that choice, and until January of 2019, the State defended the right of the State and St. Vincent to make that choice.

That changed when Defendant Attorney General Nessel took office. Leading up to and during the 2018 general election campaign, she made it clear that she considered beliefs like St. Vincent’s to be the product of hate. She stated that the 2015 law seeking to protect St. Vincent’s practice was indefensible and had discriminatory animus as its sole purpose. After her election, she ... put St. Vincent in the position of either giving up its belief or giving up its contract with the State. That kind of targeted attack on a sincerely held religious belief is what calls for strict scrutiny in this case and supports entry of a preliminary injunction preserving the status quo while the case is fully litigated.

Detroit News reports on the decision.

House Holds Hearing on Trump's "Muslim Ban"

On Sept. 24, two subcommittees of the House Judiciary Committee held a joint hearing on Oversight of the Trump Administration’s Muslim Ban. A video of the full 4-hour hearing, along with copies of the prepared testimony of numerous witnesses and letters from other interested organizations are all available on the Judiciary Committee's website. [Thanks to Michael Lieberman for the lead.]

"Church Autonomy" Requires Dismissal of Fired Faculty Member's Claims

In Garrick v. Moody Bible Institute, (ND IL, Sept. 25, 2019), an Illinois federal district court held that the "church autonomy" doctrine requires dismissal of claims by a former faculty member of a religious college that she was terminated because of her advocacy in favor of women serving as clergy members. The court said in part:

Garrick’s disagreement with Moody’s beliefs on the role of women in the ministry underlies the majority of Garrick’s allegations..... Under these circumstances, if the Court were to delve into the disputes posed by Garrick, it would impermissibly inject the auspices of government into religious doctrine and governance.

However the court said plaintiff could refile Title VII claims if they are untethered from her disagreements with Moody’s religious views.

Muslim Community Center's Claim of Discrimination In Permitting Process Must Proceed To Trial

In OT, LLC v. Harford County, Maryland, (D MD, Sept. 23, 2019), a Maryland federal district court refused to grant summary judgment to either side on almost all the claims by a Muslim group seeking permits to construct a community center. Plaintiffs contend that delays in approval were motivated by religious discrimination in violation of various constitutional and statutory provisions and imposed a substantial burden on their free exercise of religion in violation of RLUIPA.  The court said in part:

Importantly, “a government decision influenced by community members’ religious bias is unlawful, even if the government decision makers display no bias themselves....

Here, Plaintiffs contend that the sequence of events leading up to the County’s decision, departures from the County’s normal procedures, and contemporary statements by County decision-makers demonstrate that County Defendants’ actions were motived by the community’s anti-Muslim beliefs....

Conversely, County Defendants maintain that their decisions here were motivated by their desire to conform to existing practices and the County Code....

[T]he Court concludes that there is a genuine dispute of material fact as to the intent of the County Defendants....

The court similarly concluded that there was a genuine dispute of fact on whether the delay imposed a substantial burden on plaintiffs' right of religious exercise.

SPLC's "Hate Group" Designation For Christian Ministry For LGBT Views Is Protected By 1st Amendment

In Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., (MD AL, Sept. 19, 2019), an Alabama federal district court, in an interesting 141-page opinion, dismissed claims by a Christian television ministry against the Southern Poverty Law Center and Amazon's charitable program. As summarized by the court:

The lawsuit is based largely on Coral Ridge’s allegations that, because of its religious opposition to homosexual conduct, SPLC has designated it as a “hate group” and that, because of this designation, Amazon and AmazonSmile have excluded it from receiving donations through the AmazonSmile charitable-giving program.

Coral Ridge has three claims against SPLC: a state claim that its “hate group” designation is defamatory and federal claims for false association and false advertising under the Lanham Act, 15 U.S.C. § 1125. Coral Ridge has a single claim against the Amazon defendants: a federal claim that they excluded it from the AmazonSmile charitable-giving program based on religion, in violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq.

The ministry conceded that it was a "public figure" for purposes of its defamation claim Engaging in a lengthy discussion of the meaning of "hate group", the court rejected the ministry's claim because "An alleged defamatory statement is generally not provable as false when it labels the plaintiff with a term that has an imprecise and debatable meaning." The court went on to say that even if there were a commonly understood definition of "hate group",  the defamation claim should still be dismissed:

To find actual malice just because SPLC publicized a meaning of “hate group” that conflicted with the common understanding of the term would severely undermine debate and free speech about a matter of public concern. This is because, even if the term had achieved a commonly understood meaning, that meaning would not be fixed forever, but rather could evolve through public debate. To sanction a speaker for promoting a genuinely held dissenting view of the meaning of “hate group” would be akin to punishing a speaker for advocating new conceptions of terms like “terrorist,” “extremist,” “sexist,” “racist,” “radical

The court rejected the ministry's Lanham Act claims, finding that they are subject to the same heightened First Amendment standards, not the lower commercial speech standards.

The court also rejected the ministry's claim that Amazon violated the public accommodation provision of the 1964 Civil Rights Act in excluding it from its charitable giving program, saying in part:

Even if it were assumed that the Amazon defendants are places of public accommodation subject to Title II, seeking to receive donations through the AmazonSmile program does not qualify as a service, privilege, or advantage, etc. protected by the statute’s anti-discrimination prohibition. This is because the Amazon defendants limit the ability to receive such donations exclusively to 26 U.S.C. § 501(c)(3) organizations and therefore do not make that ability open to the public. Moreover, an alternative ground for dismissing the claim is that Coral Ridge has not plausibly alleged that the Amazon defendants discriminated against it based on religion.

The court concluded its opinion:

The court should not be understood as even suggesting that Coral Ridge is or is not a “hate group.” It has merely held that SPLC’s labeling of the group as such is protected by the First Amendment....  

SPLC issued a press release announcing the decision.

Break-Away Diocese Cannot Use Former Trademarked Names

In vonRosenberg v. Lawrence, (D SC, Sept. 19, 2019), a South Carolina federal district court,in a 73-page opinion, resolved a trademark dispute between The Episcopal Church and a break-away diocese.  As summarize by World Intellectual Property Review:

A US judge has ordered a former South Carolina diocese of the Episcopal Church to change its name, after concluding the breakaway group was infringing the Episcopal Church’s trademark-protected diocesan shield.

On Thursday, September 19, District Judge Richard Gergel issued an injunction against the breakaway diocese, ordering the group not to use nine trademarks associated with the Episcopal Church and ... The Episcopal Church in South Carolina, an affiliate of the national church.

Jewish Nursing Home Is Exempt From Title VII's Religious Discrimination Provision

In Shand v. Charles E. Smith Life Communities, (D MD, Sept. 23, 2019), a Maryland federal district court held that a Jewish nursing home, Hebrew Home of Greater Washington, is a religious organization for purposes of in Title VII. Under 42 U.S.C. § 2000e-1, religious organizations are exempt from the employment discrimination provisions of Title VII "with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [organization] ... of its activities."  In the lawsuit, a geriatric nursing assistant claimed the nursing home had failed to grant her request for a religious accommodation.

Death-Qualifying Jurors Does Not Infringe Their Free Exercise Rights

In Jackson v. State of Alabama, (AL Ct. Crim. App., Sept. 20, 2019), an Alabama state appeals court in a 135-page opinion dealing with numerous challenges upheld appellant's death sentence.  In one portion of the opinion (pp. 34-40), the court, relying extensively on precedent from other federal district courts, concluded that death-qualifying prospective jurors does not violate the jurors' free exercise of religion.