Montenegro Passes Controversial Religion Law

Reuters reports that early today the Parliament of Montenegro passed a controversial law on religious communities:

Under the law, religious communities in the tiny Adriatic state would need to prove property ownership from before 1918, when predominantly Orthodox Christian Montenegro joined the Kingdom of Serbs, Croats and Slovenes, the predecessor of the now-defunct Yugoslavia.

The pro-Serb Democratic Front (DF) and other critics of the legislation say it is an attempt to promote the small Montenegrin Orthodox Church, which is not recognised by other major churches, at the expense of the Serbian Orthodox Church, the dominant church in the country of 620,000 people.

Suit Over Unification Church Leadership Is Dismissed

In Hyung Jin "Sean" Moon v. Hak Ja Han Moon, (SD NY, Dec. 19, 2019), a New York federal district court applied the ecclesiastical abstention doctrine to dismiss a suit over who is the rightful leader of the Unification Church. The leadership struggle was between the wife and the son of Unification Church founder Rev. Sun Myung Moon. Summarizing its holding, the court said:

[N]otwithstanding plaintiff's efforts to cast this proceeding as a "classic corporate dispute" resolvable by reference to neutral principles of law,... this matter is, at bottom, the latest chapter in a protracted controversy over who should replace the late Rev. Moon as leader of the Unification Church. Because this Court may not, consistent with the First Amendment, intervene in that dispute, plaintiff's complaint must be dismissed in its entirety for lack of subject matter jurisdiction.

Suit Filed Against Synagogue Picketers

A lawsuit was filed last week in a Michigan federal district court against protesters who, every Saturday for the last 16 years, have picketed an Ann Arbor synagogue with anti-Israel and anti-Jewish signs. The 85-page complaint (full text) in Gerber v. Herskovitz, (ED MI, filed 12/19/2019) contends in part:

The conduct of the protesters is infringing on the 1st Amendment right of the congregants to exercise their freedom of religion without being harassed and insulted by the protesters. The City, by its failure to enforce its own Code provisions to curtail the protesters' conduct, is aiding and abetting the protesters harassment of the congregants, thereby making the protesters state actors under 42 U.S.C. §1983 and the protesters and the City co-conspirators under §§ 42 U.S.C. 1983 and 1985(3)....

The 1st Amendment right of free speech does not entitle a speaker to use that right repeatedly as a bludgeon, for weeks and years at a time, in the same location, rather than as a means of legitimate communication in an effort to convey information and persuade others to the speaker's point of view.

M Live reports on the lawsuit. [Thanks to Tom Rutledge for the lead.]

Top 10 Religious Liberty and Church State Developments of 2019

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year-- including developments internationally in the mix.  My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention. This year has been a particularly active one, and 2020 promises to be even more eventful.  The selection of top stories obviously involves a good deal of subjective judgment, and I welcome e-mail comment from those who disagree with my choices.  So here are my Top Ten picks as another year comes to an end:

1. The ongoing battle over abortion rights, including the Supreme Court's action on Indiana's abortion law in Box v. Planned Parenthood, and Justice Thomas opinion focusing on abortion as eugenics; Supreme Court's granting of certiorari on Louisiana's abortion law; increasingly restrictive enactments by various states; and challenges to new HHS health care conscience rules.
   
2. Supreme Court's decision in American Legion v. American Humanist Society clarifying when religious-themed monuments on public property may remain.
   
3. Controversies over transgender rights, including Supreme Court's grant of review in cases on Title VII protections for LGBT employees, and DOD's amended policy on transgender service in the military.
   
4. Growth of anti-Semitism and governmental efforts to combat it, including controversial interpretation of Title VI.
   
5. Litigation and rule-making over whether adoption and foster care agencies receiving government funding can refuse to place children with same-sex couples.
   
6. Elimination of religious exemptions to vaccination requirements in wake of measles outbreaks, especially in New York.
   
7.  Supreme Court weighs in on inmates' access to chaplains during execution.
   
8. Extensions of statutes of limitations lead to flood of clergy abuse cases.
   
9. 7th Circuit upholds tax code's parsonage allowance.
   
10. India's courts and Parliament make major rulings that infringe on religious autonomy: Hindu Marriage Act covers transgender marriage; Parliament outlaws triple talaq; court bans animal sacrifice; power of ecclesiastical courts reduced; disputed holy site awarded to Hindus.

For other opinions on 2019's top stories, see the lists from Don Byrd at BJC, and from from the Religion News Association.

President Sends Christmas Greetings

The White House today posted President Trump's Message on Christmas. (full text).  He said in part:

While the challenges that face our country are great, the bonds that unite us as Americans are much stronger.  Together, we must strive to foster a culture of deeper understanding and respect—traits that exemplify the teachings of Christ.

The White House also posted the transcript of the President's  Video Teleconference With Members of the Military, extending Christmas and New Years greetings to them.

Cuomo Vetoes Expansion of Federal Judges Who Can Officiate At Weddings

On Dec. 20, that New York Gov. Andrew Cuomo vetoed S6330 which would have expanded the federal judges who can officiate at marriage ceremonies in New York.  Currently only federal judges sitting in New York districts or on the 2nd Circuit can officiate. The vetoed bill would have expanded this to all federal judges. According to yesterday's New York Times, Cuomo said in his veto message:

I cannot in good conscience support legislation that would authorize such actions by federal judges who are appointed by this federal administration. President Trump does not embody who we are as New Yorkers.

President Trump Issues Hanukkah Greetings

On Sunday, President Trump issued a Hanukkah message (full text) sending greetings from himself and Melania.  He said in part:

Today, the relationship between the United States and Israel, one of our most cherished allies and friends, is stronger than ever.  We will continue to stand with the Jewish people in defending the God-given right to worship freely and openly.

New HHS Obamacare Rule Requires Separate Bill For Abortion Services

The Department of Health and Human Services last week issued a group of rules (full text) on oversight of state Obamacare exchanges.  One portion of the new rules changes the billing requirements for health insurance policies that cover abortion services. The Affordable Care Act requires a separate payment by the policyholder for the amount of the premium that covers abortions in order to avoid public funds being used to pay for abortions.  The new rules sharpen that requirement.  As explained in the HHS Fact Sheet on the new rules, health plan issuers will now be required to:

(1) send an entirely separate monthly bill to the policy holder for only the portion of premium attributable to coverage of certain abortion services, and (2) instruct the policy holder to pay the portion of their premium attributable to coverage of certain abortion services in a separate transaction....  QHP issuers sending paper bills will be permitted to send the separate paper bill in the same mailing as the separate bill for the rest of the enrollee’s premium. QHP issuers sending bills electronically will be required to send the separate bill in a separate email or electronic communication.... However, if the policy holder fails to pay the separate bill in a separate transaction as instructed by the issuer, the issuer may not terminate the policy holder’s coverage on this basis, provided the amount due is otherwise paid.

Appellate Court Narrows Ruling Allowing Clearing Of Homeless Encampments

In State of Ohio ex rel. New Prospect Baptist Church v, Rulehlman (OH App., Dec. 20, 2019), an Ohio state appellate court, narrowed an injunction previously issued by a trial court.  The city of Cincinnati had allowed homeless encampments to be created.  In a suit against the city, it was alleged that these presented a hazard to health and safety and constituted a nuisance. Agreeing with that contention, the trial court held that city and county law enforcement authorities could to clear homeless encampments throughout the city and county.  New Prospect Baptist Church, which was not a party to the trial court action, sued to prevent enforcement of the injunction against its use of its 4-acre site in the city as a refuge for the homeless. The appellate court issued a writ of prohibition requiring the trial court to narrow its injunction. The appeals court said in part:

[The trial judge's] permanent injunction is unauthorized by law to the extent that respondent seeks to enjoin actions by private nonparties, not found to be aiding or abetting a named defendant, within the city limits of Cincinnati, and by any entity outside the city limits of Cincinnati. Respondent’s orders imposing additional health and safety conditions on entities like New Prospect are similarly unauthorized by law.

City Beat, reports on the decision.

Ukrainian Region Bans Baptist Books, Including Gospel of John

In the Luhansk region of Ukraine, pro-Russian rebels have proclaimed the Luhansk People's Republic.  It is not recognized internationally, Forum18 now reports that a government decision on November 26 banned 12 Baptist books as "extremist." The Luhansk Religion Law requires state approval for any church to operate, and prohibits churches not affiliated with the Moscow Orthodox Patriarchate from applying for permission. The newly banned books include the Gospels of John, the Baptist "Songs of Revival", the Baptist magazine "Herald of Truth" and several children's books.  The text of the government decision banning the books has not been published and the government says that it is a "secret document for official use and for limited distribution." The banned Gospels of John are included in the Russian Synodal translation of the Bible.

Catholic Agency Charges County With Retaliation

Suit was filed in a Michigan federal district court last week by St. Vincent Catholic Charities of Ingham County, Michigan challenging the county's refusal to renew a grant for services to refugees,  The complaint (full text) in St. Vincent Catholic Charities v. Ingham County Board of Commissioners, (WD MI, filed 12/16/2019) contends that the county's action was in retaliation for a lawsuit by St Vincent's challenging a state requirement that Catholic adoption and foster care agencies place children with same-sex couples, (See prior posting.)  The current lawsuit claims that the county's action amounts to unconstitutional retaliation, and violates its free speech and free exercise rights. Detroit News reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Jason Scott Palmer, Emotional Intelligence and Homophobia, (Wake Forest Law Review, Vol. 54, Forthcoming).
• Nathan S. Chapman, Forgotten Federal-Missionary Partnerships: New Light on the Establishment Clause . (December 2, 2019).
• Thomas Burrell, The Bill of Rights before the Civil War: State Sovereignty, Strict Construction, and the Presumption of Constitutionality, (Forthcoming, 14 Charleston Law Review).
• Katherine Shaw, Reva B. Siegel & Melissa Murray, Introduction: Reproductive Rights and Justice Stories, (Forthcoming, Reproductive Rights and Justice Stories).
• Seth Barrett Tillman, A Religious Test in America?: New Sources on the 1809 Motion to Vacate Jacob Henry's North Carolina State Legislative Seat, (November 25, 2019).
• Fred Smith, Jr., The Constitution After Death, (November 28, 2019).

From SSRN (Religious Law):

• Levi Cooper, Halakhah: Studying Hasidism - Sources, Methods, Perspectives, (Studying Hasidism: Sources, Methods, Perspectives, ed. Marcin Wodziński (New Brunswick: Rutgers University Press, 2019), 36-59).
• Muhammad Farooq, Walayah (Guardianship) and Kafa’a (Equality) in Muslim Marriage Verses the Woman’s Consent, (December 3, 2019).
• Md Tasnimul Hassan, Islamic Jurisprudence: Apropos to the Indian Legal System, (November 15, 2019).

From SSRN (Non-US Law):

• Mario Ricca, Children in Tatters Across the Earth: Intercountry Adoptions, Intercultural Discriminations, (Calumet - Intercultural Law and Humanities Review, 2019, 9: 62-104).
• Oonagh B. Breen & Patricia Quinn, Philanthropic Giving in Ireland: A Scoping Project, (UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 13/2019).

Free Exercise Challenge To Vermont's Dual Enrollment Program Moves Ahead

In A.M. v. French, (D VT, Dec. 29, 2019), a Vermont federal district court refused to dismiss plaintiffs' claim that Vermont's administration of its Dual Enrollment Program for high school students violates their right to free exercise of religion.  Vermont pays tuition for high school students to take a limited number of courses at colleges.  While public school, home schooled and private non-sectarian school students may participate in the program, students at religious high schools are not eligible. The court held in part:

Because Plaintiffs have plausibly alleged that the DEP Provision is not neutral and generally applicable, the burden shifts to Defendant to prove that the State's enforcement of the DEP Provision withstands strict scrutiny....

The State's intent appears to be ... the avoidance of using public fundes to subsidize religious worship. A state's "policy preference for skating as far as possible from religious establishment concerns" is not a state interest of the highest order because "achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution ... is limited by the Free Exercise Clause." Trinity Lutheran, 137 S. Ct. at 2024....

The court also rejected as adequate other justifications offered by the state for the exclusion of religious school students. (See prior related posting.)

2nd Circuit: Rabbinical College Prevails In Part of Its Zoning Law Challenge

In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, (2d Cir., Dec. 29, 2019), the U.S. 2nd Circuit Court of Appeals in a 104-page opinion affirmed in part the judgment in favor of those supporting construction of a rabbinical school ("TRC") in a New York village.  The court found that plaintiffs had standing to bring their equal protection claim. It summarized its holding:

TRC and future students and faculty (collectively, “Tartikov”) filed this action against the Village and its board of trustees seeking to declare unconstitutional the two amendments enacted after its plans became known. In addition, it challenged two other amendments that had been passed earlier. After a bench trial, the district court found that all four zoning law amendments were tainted by religious animus, enjoined their enforcement, and entered a broad injunction sweeping away or modifying for these plaintiffs New York State and local laws that otherwise would apply. The Village challenges the decision below. Its central contention is that the findings of religious animus were clearly erroneous. Tartikov cross appeals from a number of pretrialrulings that limited the scope of its claims.

After careful consideration of the extensive record, we decline to overturn the district court’s findings that religious animus motivated the two zoning amendments passed after the plaintiffs’ wishes became known and thus affirm the injunction barring their enforcement. But we respectfully conclude that there was insufficient evidence to support such a finding as to either of the two earlier zoning amendments and therefore reverse that portion of the judgment. We conclude also that the injunctive relief went further than was appropriate and modify those aspects of the judgment as well. We affirm as to the cross-appeal.

USCIRF Reauthorized By Congress

Congress yesterday gave final passage to HR1865, Further Consolidated Appropriations Act, 2020 (full text). Title VIII of the Act reauthorizes the United States Commission on International Religious Freedom for three more years.  The reauthorization bill makes a number of other changes to USCIRF's operations, including:

(1) requiring election of a Chair and Vice Chair at the first meeting of the Commission after May 30 each year, and requiring that they be of different political parties, with chair and vice chair's party rotated each year.

(2) USCIRF is to track the implementation of its recommendations and the effectiveness of such implementation.

(3) Commissioners invited to speak on behalf of USCIRF must notify other Commissioners of the invitation and must reflect Commission views in their remarks. Commissioners who are speaking in their private capacities must make this clear.

(4) If the government makes a payment to settle a harassment claim against a Commission member, the member shall be removed from the Commission.

Separately, on Dec. 18, the Senate approved the appointment of Rabbi Sharon A. Kleinbaum as a USCIRF commissioner.

Settlement Reached In Suit Over Homeless Shelter

A settlement has been reached in the RLUIPA lawsuit filed last month (see prior posting) by the Shawnee Mission Unitarian Universalist Church against the city of Lenexa, Kansas over denial of zoning approval for an overnight winter homeless shelter. According to a press release from the church's law firm, the settlement agreement allows the shelter to operate from Dec. 13 to April 1, with various conditions.  In addition the city has agreed to work with the Church to produce an ordinance within the next 3 years to allow homeless ministries in city.

New Law & Religion Bibliography

The AALS Section on Law and Religion has issued its 2019 Newsletter which includes a 17-page Law and Religion bibliography. Access the full Newsletter here.

British Court Says Sikh Challenge To Census Proposal Is Premature

In Gill, R (on the application of) v UK Statistics Authority, (EWHC, Dec. 12, 2019), a High Court judge in England dismissed as premature a challenge to a proposal by the UK Statistics Authority not to include a Sikh ethnic group tick box response in the 2021 census. Under the proposal there would be a specific "Sikh" response under "Religion", but those wishing to list themselves as Sikh under ethnicity would need to check the "Other, specify" box. The court agreed with the government's claim, which the court described as follows:

[T]his claim is a pre-emptive challenge to the exercise of the Queen's powers ... before the Minister has made a final decision on the form of the census questionnaire, or laid the draft delegated legislation before Parliament, and before Parliament and the Queen in Council have had an opportunity to consider it. The Defendant submits that the claim is premature, and in breach of Parliamentary privilege, as a declaration in the terms sought would not respect the separation of powers between the legislature and the judiciary.

Law & Religion UK has more on the decision.

Another Ruling On Business Refusal To Serve Same-Sex Weddings

In Country Mills Farms, LLC v. City of East Lansing, (WD MI, Dec. 18, 2019), a Michigan federal district court refused to grant summary judgment to either side on most of plaintiff's claims growing out of plaintiff's refusal rent his farm venue for same-sex wedding ceremonies. That refusal led to plaintiff being excluded from participating in the city's farmer's market, The court summarized:

Plaintiffs used Facebook to announce both their religious beliefs and their business practices. The City reacted to the Facebook post, culminating in the denial of Country Mill’s application to participate in the East Lansing Farm’s Market. The parties disagree whether City’s actions were because of Plaintiffs’ statement about their religious beliefs or whether the City’s actions were because of Plaintiffs’ statement about their business practices.  Because the record contains evidence from which the finder of fact could conclude that the City reacted to Plaintiffs’ statements about their religious beliefs, the cross motions for summary judgment must be denied for many of the claims. The trier of fact must decide what the City’s motivation was.

The court, however, did hold that a portion of the city's non-discrimination ordinance is overbroad.  The court also dealt at length with plaintiff's free exercise claims. In part, the court rejected  plaintiff's argument that the Supreme Court's Trinity Lutheran decision precludes the city from denying him a public benefit because of his religious belief, saying: "the Trinity Lutheran opinion does not clearly extend beyond religious institutions "

Supreme Court Grants Cert. In 2 Ministerial Exception Cases

The U.S, Supreme Court today granted review in two cases involving the scope of the "ministerial exception" doctrine. The Court consolidated the two cases for review.  One of the cases is St. James School v. Biel, (Docket No. 19-348, certiorari granted 12/18/2019). In the case, the U.S. 9th Circuit Court of Appeals  in a 2-1 decision held that a 5th grade teacher at a Catholic elementary school is not a "minister" for purposes of the ministerial exception doctrine. At issue was a suit under the Americans for Disability Act brought by a teacher whose contract was not renewed.  (See prior posting.) The 9th Circuit over 9 dissents denied en banc review. (See prior posting.) The second case in which the Supreme Court granted review is Our Lady of Guadalupe School v. Morrissey-Berru, (Docket No. 19-267, certiorari granted 12/18/2019). In the case, the U.S. 9th Circuit Court of Appeals held that a teacher in a Catholic school is not a "minister" for purposes of the ministerial exception doctrine. (Full text of 9th Circuit decision).