Jehovah's Witness Practices Are Within Confidentiality Exception To Mandatory Abuse Reporting

In Nunez v. Watchtower Bible and  Tract Society of New York, Inc., (MT Sup. Ct., Jan. 8, 2020), the Montana Supreme Court reversed a jury award of $35 million in compensatory and punitive damages against the Jehovah's Witnesses for violating Montana's statute mandating reporting of child abuse.  The court concluded that Jehovah's Witnesses came within an exception in the statute for communications required to be confidential under church law or established practice. The court said in part:

[W[e decline to conduct further inquiry into the validity of Jehovah’s Witnesses’ tenets and doctrines, including its canon and practice for adherence to a requirement of confidentiality in handling child abuse reports. Jehovah’s Witnesses representatives testified that its process for addressing these reports is strictly confidential, notwithstanding the involvement of numerous church clergy and congregants.... 

We hold accordingly that the undisputed material facts in the summary judgment record demonstrate as a matter of law that Jehovah’s Witnesses were not mandatory reporters under § 41-3-201, MCA, in this case because their church doctrine, canon, or practice required that clergy keep reports of child abuse confidential, thus entitling the Defendants to the exception of § 41-3-201(6)(c), MCA. The reporting statute as written accommodates Jehovah’s Witnesses’ definition and practice of confidentiality.

[Thanks to James Phillips for the lead.]

Teacher Can Pursue Title VII Claims In Dispute Over Transgender Student Policy

Kluge v. Brownsburg Community School Corp., (SD IN, Jan. 8, 2020), involved a suit by a former high school music teacher who was forced to resign for resisting the school's policy that required teachers to address transgender students by their preferred names and pronouns.Plaintiff claimed that the requirement violates his sincerely held religious beliefs. The court dismissed plaintiff's 1st and 14th Amendment claims, but allowed him to move forward on his claims of failure to accommodate in violation of Title VII, and his Title VII retaliation claim.

Challenge To Hospital's Reliance on Church Plan Exemption From ERISA Dismissed

In Sheedy v. Adventist Health System Sunbelt Healthcare Corp., 2020 U.S. Dist. LEXIS 2131 (MD FL, Jan. 7,2020), a Florida federal district court dismissed a suit challenging the Seventh Day Adventist Hospital Retirement Plan's reliance on the "church plan" exemption from ERISA, The suit claimed various ERISA violations and violation of the Establishment Clause.  The court dismissed plaintiff's claims on standing and other grounds.

State Senator's Threats Were Not Religious Speech

In Boquist v. Oregon State Senate President Peter Courtney, (D OR, Jan. 7, 2020), an Oregon federal district court rejected claims by Oregon state senator Brian Boquist that his constitutional rights, including his 1st Amendment rights, were violated when state Senate leaders imposed a requirement that he give 12-hours notice before entering the Capitol building. The notice requirement was imposed in reaction to statements made by Boquist that others saw as threatening.  All of this occurred during a political battle in which Republican senators left the Capitol in order to prevent a quorum from being present in the Senate, and the governor ordered state police to arrest them and bring them back. Rejecting Boquist's 1st Amendment claims, the court said in part:

While both sides can point fingers and complain that the other is overreacting to a political situation, Plaintiff’s chosen words on the Senate floor were those of a bully on the playground. As such, they are unprotected fighting words. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).... Remarkably, Plaintiff argues that his statement to Defendant Courtney— “if you send the [S]tate [P]olice to get me, Hell’s coming to visit you personally”—was a statement of religious expression.... But here, Plaintiff seems to overlook the fact that he sounds more like a character out of a Clint Eastwood movie than he does Mother Theresa.... Plaintiff made this statement in anticipation of his potential arrest, not during a religious discussion. Plaintiff also said that if the State Police were to arrest him, they should “send bachelors and come heavily armed.”... These statements, apart and together, resonate more as threats than the expression of theological ideas.

The Oregonian reports on the decision.

India Supreme Court: State Commission Can Choose Teachers For Madrassas

In Rafique v. Managing Committee, Contai Rahamania High Madrasah,(India Sup. Ct., Jan. 6, 2020), a 2-judge panel of India's Supreme Court in a 151-page opinion upheld a law in the state of West Bengal under which a government appointed Commission selects teachers for Islamic Madrassas. The Court held that the Act does not infringe on the right of minority institutions to choose their own teachers, saying in part:

the composition of the Commission with special emphasis on persons having profound knowledge in Islamic Culture and Theology, would ensure that the special needs and requirements of minority educational institutions will always be taken care of...

Times of India reports on the decision.

Title VII Suit Against Church Body Can Move Ahead

In Edley-Worford v. Virginia Conference of the United Methodist Church, (ED VA, Dec. 30, 2019), a Virginia federal district court refused to dismiss a Title VII claim by the former Director of Inclusivity and Lay Leadership Excellence in a church organization.  Plaintiff, an African American woman, claimed she was given an unfair workload in relation to those of her Caucasian co-workers and was fired when she complained to the Board of Laity and Personnel Committee. Defendants unsuccessfully raised defenses of the ecclesiastical abstention doctrine and the ministerial exception doctrine.

Court Cannot Decide Church Leadership Dispute

In Eglise Baptiste Bethanie De Ft. Lauderdale, Inc. v. Seminole Tribe of Florida, (SD FL, Jan 3, 2020), a Florida federal district court invoked the ecclesiastical abstention doctrine to dismiss a suit filed to settle a dispute over church leadership between the church's board of directors and the widow of its deceased pastor. According to the court:

While ... [weekly church] services were in progress, Defendant Auguste and her supporters, escorted by six armed officers from the Seminole Police Department, and without judicial authorization entered church property, "disabled the Church Property's surveillance cameras," "expelled from the Church Property all the worshipers who opposed Auguste," "changed the locks to the doors of the religious structure located on the Church Property," "seized the business records of Eglise Baptiste," and "locked the gates to the Church Property." ... Defendant Auguste and her supporters continue to occupy the church property and control Eglise Baptiste's personal property, including its bank accounts....Further, Defendant Auguste and her supporters have continued to exclude Plaintiffs from the church property.

However, the court concluded:

[A]ny adjudication of the claims asserted in Plaintiffs' Amended Complaint would violate the First Amendment because it "would require judicial intrusion into, rules, policies, and decisions which are unmistakably of ecclesiastical cognizance." ... [T]he foundational issue that must be resolved before addressing the merits of the claims is whether Defendant Auguste had the authority to exclude Plaintiffs from church property as Pastor Auguste's rightful successor. Questions of church government are fundamentally ecclesiastical in nature....

Ultimately, Defendant Auguste's decision to exclude Plaintiffs from church property and the ensuing events are so inextricably intertwined with matters of church governance, administration, and membership — regardless of the legal theories presented — that the adjudication of such issues would "excessively entangle[e] the judiciary in [ecclesiastical] questions."...

Recent Articles of Interest

From SSRN:

• Jaclyn L, Neo, Dimensions of Religious Harmony as Constitutional Practice: Beyond State Control, (German Law Journal (2019), 20, pp. 966–985).
• Michael Hanby, The Brave New World after Obergefell, (December 9, 2019).
• Nathan S. Chapman, Liberty of Conscience, Free Exercise of Religion, and the U.S. Constitution, (Christianity and the Laws of Conscience: An Introduction, eds. Helen Alvare & Jeff Hammond, Oxford: OUP, Forthcoming).
• Nathan S. Chapman, Christianity and Crimes Against the State, (Christianity and the Criminal Law, eds. Norman Doe, Dick Helmholz, Mark Hill, & John Witte, Jr. (London: Routledge), Forthcoming).
• Richard Moon, Ktunaxa and the Shape of Religious Freedom, (November 12, 2019).
• Mahmoud A. El-Gamal,  Al-Sanhuri on Riba (Translation of Excerpt from Abdul-Razzaq Al-Sanhuri's Sources of Rights in Islamic Jurisprudence), (June 5, 2019).

From elsewhere:

• James C. Phillips, Is U.S. Legal Scholarship “Losing [Its] Religion” Or Just Playing Favorites?: An Empirical Investigation, 1998–2012, 2018 Pepperdine Law Review 139 (2019).

Court Refuses To Examine Parties' Need For Jewish Religious Divorce

In A.W. v. I.N., (Sup Ct Nassau Cty NY, Jan. 2, 2020), a New York state trial court held that the 1st Amendment precludes it from looking beyond a wife's sworn statement that she has, to the best of her knowledge, removed all barriers to the Husband's remarriage. NY Domestic Relations Law §253 requires such a statement from a plaintiff in a divorce action, and also provides that the court may not look into any religious or ecclesiastical issue.  In this case, the husband sought a stay in entering a final judgment of divorce because the wife refused to appear before an Orthodox Jewish religious court and accept a get (divorce document) from the husband.  According to an affidavit from a rabbi submitted by the husband, the husband is prevented from remarrying without the wife's acceptance of a get.  The wife contends, on the other hand;

the parties were not married religiously nor was there any religious ceremony. Therefore ... since there was no marriage according to Jewish Law, there is no religious divorce to be had. The Wife states that she refused the Husband's offers for a religious wedding ceremony because she wanted to avoid any religious divorce rituals. The Wife argues that in any event, the Husband is not a practicing Orthodox Jew.

The court said in part:

It would be a violation of the First Amendment of the United States Constitution for the Court to order the Wife to participate in a religious ritual when she did not agree to do so.

Amicus Briefs In Supreme Court's Abortion Cases Now Available

Dozens of amicus briefs have now been filed in this Term's Supreme Court cases on abortion rights. Links to all of the briefs are available at SCOTUSblog's case page on June Medical Services LLC v. Gee.

AP: Catholic Church's Release of Sex Offenders' Names Is Incomplete

In a long investigative report, AP yesterday said that Church reporting of alleged sex abusers is incomplete:

An AP analysis found more than 900 clergy members accused of child sexual abuse who were missing from lists released by the dioceses and religious orders where they served....

More than a hundred of the former clergy members not listed by dioceses or religious orders had been charged with sexual crimes, including rape, solicitation and receiving or viewing child pornography.

On top of that, the AP found another nearly 400 priests and clergy members who were accused of abuse while serving in dioceses that have not yet released any names....

Some dioceses have excluded entire classes of clergy members from their lists — priests in religious orders, deceased priests who had only one allegation against them, priests ordained in foreign countries and, sometimes, deacons or seminarians ousted before they were ordained....

Dioceses varied widely in what they considered a credible accusation.....

The largest exceptions were made for the nearly 400 priests in religious orders who, while they serve in diocesan schools and parishes, don't report to the bishops.

Suit Challenges Attempt To Force Sex Offenders Out of Church's Program

The Chicago Tribune reports on a Dec. 30 lawsuit arguing that  the city of Aurora and Kane County (Illinois) are violating the rights of 18 registered sex offenders staying at Wayside Cross Ministries:

The city of Aurora has contended for months that new mapping software showed the men, registered child sex offenders participating in a rehabilitation program at Wayside Cross Ministries, live too close to McCarty Park on Aurora’s near East Side. The city deems it a playground, which would mean the men are in violation of a state law requiring them to live more than 500 feet from schools, playgrounds, daycare centers and other child-focused locations....

The men argue in the lawsuit that Aurora and the Kane County state’s attorney are “misinterpreting and misapplying the residency law." The suit argues the way they are applying the law “to force plaintiffs out of Wayside Cross substantially burdens plaintiffs’ exercise of religion and is not the least restrictive means of furthering a compelling government interest," and amounts to a violation of the Illinois Religious Freedom Restoration Act,,,,

The most recent lawsuit, filed in Kane County circuit court, argues that instead of measuring the required 500-foot-distance from the edge of the park, it should be measured from the edge of an area deemed a playground, such as the park’s fountain or two rocking horses installed in the summer. Both of those features are more than 500 feet from Wayside’s property line, according to the lawsuit.

O Centro Sues Over Failure To Process Visa Applications

AP reports on a lawsuit filed in a New Mexico federal district court by O Centro Espirita Beneficente União do Vegetal alleging religious discrimination by the U.S. Citizenship and Immigration Services which has failed to process the visa applications for one of its congregational leaders and his family:

The lawsuit comes after José Carlos Garcia, a Brazilian man who has led the church’s Florida congregation since 2013, applied for visas that would allow him and his family to continue living in the United States while their immigration cases are pending

But the federal agencies responsible for processing their applications have left the family in legal limbo. Some applications have been pending for two years, according to the suit.

This has prevented Garcia from traveling to religious meetings outside the United States, infringing on his religious freedom, the lawsuit said.

In  O Centro Espirita Beneficente União do Vegetal in the U.S. v. Wolf, (D NM, Dec. 31, 2019), a New Mexico federal district judge refused to issue a preliminary injunction, but ordered the government to file a response by Jan. 10. (See prior related posting,)

Sex Abuse Suit Transferred to State Supreme Court

In Doe v. Marianist Province of the United States, (MO App., Dec. 31, 2019), a Missouri state appellate court said it would affirm the dismissal of portions of a lawsuit brought against the Marianist Province and a Catholic preparatory high school by a former student. However, according to the court, "due to the general interest and importance of the issues on appeal, we transfer the case to the Supreme Court of Missouri."  In the suit, plaintiff alleged abuse by a Marianist Brother who served as a guidance counselor at the school.  Judge Hoff, writing for herself and Judge Sullivan, said in part:

[B]ecause Appellant’s negligent supervision and negligent failure to supervise children claims would require interpretation of religion doctrine, policy, and administration amounting to an excessive entanglement between church and state, the trial court did not err in granting summary judgment in favor of Respondents....

... [T]he record contains no competent evidence that Respondents had knowledge of Bro. Woulfe’s history of abuse in 1971 when Appellant suffered his abuse. As a result, Appellant failed to establish the existence of a genuine issue related to Respondents’ knowledge. The trial court did not err in granting summary judgment in favor of Respondents on Appellant’s claim of intentional failure to supervise clergy.

Judge Quigless dissenting in part said:

While I concur with the majority in affirming the grant of summary judgment in favor of the respondents regarding the appellant’s negligence claims, I believe the record is sufficient to defeat the respondents’ motion for summary judgment on the claim of intentional failure to supervise clergy because a genuine issue exists as to the material fact of the respondents’ knowledge.

Happy New Year 2020 !

Dear Religion Clause Readers:

Happy New Year 2020! I hope you continue to find Religion Clause an important resource for news on religious liberty and church-state developments. I continue to strive for objectivity in my posts and to provide links to an abundance of primary source material underlying each post. I am pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, clergy, governmental agency personnel, students and others working professionally dealing with church-state relations and religious liberty concerns in the U.S. and around the world.

As we usher in 2020, it has become conventional wisdom that many of the most highly charged issues that divide our country politically also often divide it along religious lines.  Whether the issue is abortion, transgender rights, immigration, same-sex marriage, climate change, or campus free speech, activists have increasingly defined the debate in religious terms. As I watch this, I recall the words of Chief Justice Burger nearly 50 years ago in Lemon v. Kurtzman:

Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.

2019 has also been a year in which religious intolerance has grown.  Increasing anti-Semitic incidents in the United States and around the world remind us that this age-old manifestation of hate has not disappeared. Anti-Muslim attitudes and actions continue largely unabated in numerous countries, while minority Christian communities elsewhere are under siege.  2020 promises to be an important year for confronting religious liberty and church-state concerns.  Religion Clause will continue to cover all the developments.

Thanks again to all of you who are loyal readers-- both those who have followed Religion Clause for years and those of you who have only recently discovered the blog.  A special thanks to readers who have quickly sent me leads on recent developments, and to those who have alerted me to mistakes. All of you have made Religion Clause the most recognized and reliable source for keeping informed on the intersection of religion with law and politics. I encourage you to recommend Religion Clause to colleagues, students and friends who might find it of interest.

I also remind you that the Religion Clause sidebar contains links to a wealth of resources.  Please e-mail me if you discover broken links or if there are other links that I should consider adding.

Best wishes for 2020!  Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions.

Howard Friedman

Hate Crime Charges Filed In Hanukkah Stabbing Spree

The U.S. Attorney's Office for the Southern District of New York announced yesterday that it has filed federal hate crime charges in the Hanukkah mass stabbing attack at a Rabbi's home in Monsey, NY last week.  The criminal complaint (full text) charges Grafton Thomas with 5 counts of obstruction of the free exercise of religious beliefs involving an attempt to kill and use of a dangerous weapon. The affidavit supporting the complaint says that a handwritten journal containing anti-Semitic views was recovered from the suspect's residence. Washington Post reports on these developments.

Denial of Name Change Did Not Burden Inmate's Free Exercise

In In re the Application of: Hollis John Larson for a Change of Name, (MN App, Dec. 30,2019), a Minnesota state appellate court upheld a trial court's denial of a name change petition from an inmate who has been indeterminately civilly committed to the Minnesota Sex Offender Program as a sexually dangerous person. Petitioner sought to change his name to "Better Off Dead."  He claimed his religious belief involving Hinduism, Taoism, Buddhism, and Agnosticism motivates his petition. He contended that he believes to achieve reconciliation with the divine he must escape the cycle of birth, life, death, and rebirth by being and remaining dead. In rejecting petitioner's free exercise claim, the appeals court said said that the trial court had concluded that petitioner's asserted religious belief was not sincerely held and "state regulation cannot burden an insincere belief." Minneapolis Star Tribune reports on the decision. The court also rejected petitioner's free speech claim.

Suit Challenges Postal Service's Rules On Content of Customized Stamps

Suit was filed earlier this month in a Texas federal district court challenging the constitutionality of a portion of the U.S. Postal Service's regulation (39 CFR §501.21) that limits the depictions that may be placed on customized postage stamps produced by private providers authorized by USPS. The regulation limits, among other things, "Any depiction of political, religious, violent or sexual content".  The complaint, (full text) in Fletcher v. U.S. Postal Service, (ED TX, filed 12/19/2019), contends that plaintiff's free speech and free exercise rights (including her rights under RFRA) are violated because she will be unable to create personalized postage stamps that allow her to share her love of Christmas and other holidays through PhotoStamps.com's website.  According to the complaint:

16. The website also requires customers to agree that Stamps.com, in its sole discretion, may determine if designs meet the eligibility criteria and may also reject orders without explanations. If customers submit a design Stamps.com determines is in violation of their requirements, those customers may be charged a processing fee of $10 per image.

17. If customers publicly complain about the rejection of a stamp design, Stamps.com claims it will be harmed and may pursue legal action. The website states, “[if] you intentionally publicize such violation, you acknowledge that Stamps.com will suffer substantial damage to its reputation and goodwill and that you can be liable for causing such substantial damage.”

The complaint goes on to allege that:

... USPS chose to promulgate a regulation allowing third-party providers, such as PhotoStamps, to discriminate against speech. Regulation 39 C.F.R. § 501.7(c)(1) requires the provider—here, PhotoStamps—to ensure that what it prints is “[c]onsistent with the Postal Service’s intent to maintain neutrality on religious, social, political, legal, moral, or other public issues.”

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

Recent Articles of Interest

From SSRN:

• Jeremy Rovinsky, Don’t Have a Cow, Flanders: Guidance for the European Court of Justice as it Considers the Flemish Parliament’s Ban on Ritual Slaughter, (University of Detroit Mercy Law Review, Vol. 90, No. 180, Forthcoming).
• Richard Adams, Conscience and Coercion: Justice and the Defence Act, (Adelaide Law Review, 40:2, pp. 427 - 446, 2019).
• David John Harvey, Dangerous Speech - Some Legislative Proposals, (April 20, 2019).
• Aminu Yakubu, Haruna Yawale, Abdulbar Yakubui Isa & Muhammad Salihu Abubakar, Legal and Illegal Earning in Islam: A Literature Review (April 25, 2019).

State Department Designates Religious Freedom Violators

In a Dec. 20 press release, the U.S. State Department announced it designations for this year of countries which are the worst violators of religious freedom:

On December 18, 2019, the Department of State re-designated Burma, China, Eritrea, Iran, North Korea, Pakistan, Saudi Arabia, Tajikistan, and Turkmenistan as Countries of Particular Concern under the International Religious Freedom Act of 1998 for having engaged in or tolerated “systematic, ongoing, [and] egregious violations of religious freedom.”  The Department renewed the placement of Comoros, Russia, and Uzbekistan on a Special Watch List (SWL) for governments that have engaged in or tolerated “severe violations of religious freedom,” and added Cuba, Nicaragua, Nigeria, and Sudan to this list.  Sudan was moved to the SWL due to significant steps taken by the civilian-led transitional government to address the previous regime’s “systematic, ongoing, and egregious violations of religious freedom.”  Finally, we designated al-Nusra Front, al-Qa’ida in the Arabian Peninsula, al-Qa’ida, al-Shabab, Boko Haram, the Houthis, ISIS, ISIS-Khorasan, and the Taliban as Entities of Particular Concern.

The U.S. Commission on International Religious Freedom issued a press release welcoming the action and reiterating its recommendations.