Pence Speaks At World Holocaust Forum

Vice President Mike Pence spoke yesterday at the Fifth World Holocaust Forum in Jerusalem. (Full text of remarks.) The event, held at Yad Vashem, marked the 75th anniversary of the liberation of Auschwitz.  The vice-president said in part:

Through pogroms, persecutions, and expulsions in the ghettos, and finally, even through the death camps, the Jewish people clung to an ancient promise that He would “never leave you or forsake you” and that he would leave this people to inherit the land that he swore to your ancestors that he would give them.

And so, today, as we bear witness to the strength and the resilience and the faith of the Jewish people, so too we bear witness to God’s faithfulness to the Jewish people.

UPDATE: On Jan. 24, President Trump issued a Proclamation on National Day Of Remembrance Of The 75th Anniversary Of The Liberation Of Auschwitz, 2020.

World Court Orders Myanmar To Prevent Further Genocide of Rohingya

The United Nations International Court of Justice has handed down an opinion and order imposing provisional measures on Myanmar to protect the Rohingya in Myanmar's Rakhine state from continuing acts of genocide. The court's opinion in The Gambia v. Myanmar, (ICJ, Jan. 23, 2020), deals at length with jurisdictional issues, standing and the availability of provisional relief pending a final decision in the case. Finding that a plausible claim has been stated and that there is a real and imminent risk of irreparable prejudice if interim relief is not granted, the Court ordered:

The Republic of the Union of Myanmar shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:

(a) killing members of the group;

(b) causing serious bodily or mental harm to the members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and

(d) imposing measures intended to prevent births within the group;

...The Republic of the Union of Myanmar shall, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in point (1) above, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide....

The Republic of the Union of Myanmar shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide....

The Court also issued a press release summarizing the decision. CNN has extensive background on the case.

10th Circuit Hears Oral Arguments On Passport Gender Markers

The U.S. Court of Appeals for the 10th Circuit yesterday heard oral arguments (audio of full arguments) in Zzyym v. Pompeo. In the case, a Colorado federal district court held that the State Department's policy on passport gender designations is arbitrary and capricious under the Administrative Procedure Act. (Full text of district court's 2018 opinion). The Department requires selection of "M" or "F" as gender on passport applications, and refused to allow plaintiff who is an intersex individual to select "X" as a gender marker. Lambda Legal's case page has extensive additional information and links to pleadings, briefs and decisions in the case.

Christian School Denied Injunction Against Anti-Discrimination Provisions In Aid Programs

In Bethel Ministries, Inc. v. Salmon, (D MD, Jan. 21, 2020), a Maryland federal district court refused to issue a preliminary injunction requested by a Christian elementary school. Bethel Christian Academy sought to enjoin enforcement of a provision requiring non-discrimination on the basis of sexual orientation or gender identity in order to participate in state-sponsored scholarship and school aid programs.  The court concluded that the school had not shown that the state targeted, was hostile to, or expressly discriminated against the school because of its religious beliefs. Nor had the school shown a likelihood of success on its claim that its free speech rights were infringed.

Utah Administrative Rule Banning Conversion Therapy Becomes Effective

As reported by NPR, in Utah a new rule under the Mental Health Professional Practice Act (full text of rule [scroll to pp. 61-66]) bans mental health professionals from providing conversion therapy to minors. The rule defines conversion therapy as

any practice or treatment that seeks to change the sexual orientation or gender identity of a patient or client, including mental health therapy that seeks to change, eliminate, or reduce behaviors, expressions, attractions, or feelings related to a patient or client's sexual orientation or gender identity.

The new rule became effective yesterday.  It excludes from coverage:

(i) a clergy member or religious counselor who is acting substantially in a pastoral or religious capacity and not in the capacity of a mental health therapist; or

(ii) a parent or grandparent who is a mental health therapist and who is acting substantially in the capacity of a parent or grandparent and not in the capacity of a mental health therapist.

KUER traces the evolution of the ban in Utah. After the original version of the ban failed to pass the state legislature last year, Utah Gov. Gary Herbert negotiated a version with the above exclusions that gained the support of the Church of Jesus Christ of Latter Day Saints. While Utah becomes the 19th state to pass this sort of ban, it is the first with a Republican governor and Republican controlled legislature to do so. [Thanks to Scott Mange for the lead.]

Canadian Court Says University Need Not Discipline Abortion Counter-Protesters

In UAlberta Pro-Life v Governors of the University of Alberta, (Alberta Ct. App., Jan. 6, 2020), an appellate court in the Canadian province of Alberta held that the University of Alberta was not required to discipline counter-demonstrators who held signs and banners that blocked the pro-life displays of an anti-abortion student group. Justice Watson, writing the primary opinion, said in part:

The case at bar does not provide an appropriate opportunity to reach any final conclusion about what a ‘positive’ aspect of freedom of expression might mean. It is one thing to provide equal access to opportunities to express. It is quite another to take steps to ensure that the party exercising the freedom has an optimal chance to persuade other people. The University cannot be expected to guarantee that Pro-Life’s message will persuade anybody. More particularly, one thing it does not mean, in my view, is that the University was required to set its face so much against counter protests that it must prosecute without exception any overshoot potentially governed by the Rules of Student Behaviour.

The court however held that the University was not justified in imposing a $17,500 security deposit for the organization to hold a subsequent event.  It held that the University is subject to Canada's Charter of Rights and Freedoms in regulating freedom of expression by students on campus grounds.

Justice Watson then wrote in part:

While I do not agree that victim blaming is what is involved, there appears to be error here by the University in imposing on Pro-Life the exclusive burden of overcoming problems arising from the fact that their expression might attract an adverse response.

... [I]t cannot be said that Pro-Life should be held 100% responsible for costs that future events might generate. Although the University says the concept of the heckler’s veto is misplaced here, the position for the University escalated the status of potential objectors to not merely being on par with the expresser, but above the expresser’s position.

[Thanks to James Phillips for the lead.]

Transcript of Today's Arguments in Espinoza v. Montana Dept. of Revenue Now Available

The transcript of today's oral arguments in the U.S. Supreme Court  in Espinoza v. Montana Department of Revenue is now available. Amy Howe at SCOTUS blog discusses the oral arguments, saying in part:

This morning the Supreme Court heard oral argument in the latest chapter of the battle over the use of public funding for religious schools. Supporters of such funding argue that the government should not be allowed to discriminate against religious families and schools, while opponents warn that requiring the government to allow public funds to be used for religious schools could harm public education. Both of those issues were at the forefront of today’s oral argument, as was the question of whether the lawsuit should continue at all. By the time the justices left the bench, it appeared that the outcome could hinge on the votes of Chief Justice John Roberts and Justice Stephen Breyer.

Supreme Court Will Hear Arguments Today In Montana Religious School Aid Case

The U.S. Supreme Court will hear oral arguments this morning in Espinoza v. Montana Department of Revenue.  In the case, the Montana Supreme Court held that Montana's tax credit program for contributions to student scholarship organizations is unconstitutional under Montana Constitution Art. X, Sec, 6 which prohibits state aid to sectarian schools. (See prior posting.) The Solicitor General will  participate in oral argument, contending that Montana's "no-aid" provision violates the U.S. Constitution's free exercise clause.  SCOTUS blog has a preview of today's arguments. Here is SCOTUS blog's case page with links to all the filings in the case and to additional discussion of the issues involved. I will post the transcript of the oral arguments later today when it becomes available.

2nd Circuit: No Amended Complaint In Falun Gong Torture Lawsuit

In Chen Gang v. Zhao Zhizhen, (2d Cir., Jan. 13, 2020), the U.S. 2nd Circuit Court of Appeals agreed with the district court holding plaintiffs cannot file a third amended complaint in their long-running lawsuit. In the suit, originally filed in 2004, plaintiffs representing a class of Falun Gong practitioners claimed that defendant used his influential position in China to encourage persecution of Falun Gong members there. The motion came after dismissal of plaintiffs' earlier complaint alleging aiding and abetting and conspiracy in violation of the Torture Victim Protection Act. Washington Post reported on the decision.

New Survey On Antisemitism In France

American Jewish Committee Paris yesterday released a new 35-page report on antisemitism in France (Full text of report). The report analyzes surveys conducted in October and November of 2019. AJC's release summarizing the report says in part:

Nearly three-quarters, 73%, of the French public, and 72% of Jews, consider antisemitism a problem that affects all of French society. 47% of the general public and 67% of the Jewish respondents say the level of antisemitism in France is high, while 27% and 22%, respectively, say it is low.

While 53% of the general public say antisemitism has been increasing, and 18% decreasing, in recent years, 77% of Jews say it has increased and 12% decreased....

... 70 percent of French Jews say they have been victims of at least one antisemitic incident in their lifetime, 64% have suffered anti-Semitic verbal abuse at least once, and 23% have been targets of physical violence on at least one occasion, with 10 percent saying they were attacked several times.

5th Circuit: Court Should Not Agree To Use Pronoun Requested By Litigant

In United States v. Varner, (5th Cir., Jan. 15, 2020), the U.S. 5th Circuit Court of Appeals denied a motion by a transgender female inmate for a name change on the inmate's judgement of confinement.  Petitioner wanted the male name on her judgment changed to reflect her later name change to that of a female.  In addition, petitioner sought to require the courts to refer to her using female pronouns. The majority and the partial dissent disagree on whether this motion refers to the district court, or only to the Court of Appeals. In rejecting this request, the majority said in part:

[I]f a court were to compel the use of particular pronouns at the invitation of litigants, it could raise delicate questions about judicial impartiality. Federal judges should always seek to promote confidence that they will dispense evenhanded justice. See Canon 2(A).... In cases like these, a court may have the most benign motives in honoring a party’s request to be addressed with pronouns matching his “deeply felt, inherent sense of [his] gender.” ... Yet in doing so, the court may unintentionally convey its tacit approval of the litigant’s underlying legal position.... Even this appearance of bias, whether real or not, should be avoided....

A Washington Post op-ed discusses the decision.

Recent Articles of Interest

From SSRN:

• Monika Zalnieriute & Catherine Weiss, Reconceptualizing Intersectionality in Judicial Interpretation: Moving Beyond Formalistic Accounts of Discrimination on Islamic Covering Prohibitions, (Berkeley Journal of Gender, Law and Justice, 2020).
• Benjamin L. Berger, Is State Neutrality Bad for Indigenous Religious Freedom?,(in Jeffrey Hewitt, Beverly Jacobs, and Richard Moon, eds., Indigenous Spirituality and Religious Freedom (Toronto: University of Toronto Press, Forthcoming)).
• Anthony Shaw, Expressions of Sovereign Power in the Roman Tetrarchy and the Byzantine Empire: A Comparative Constitutional Analysis, (December 27, 2019).
• Robert H. Jackson & John Q. Barrett, The Faith of My Fathers, (168 U. Pa. L. Rev. 1 (2019).
• Michael A. Helfand, ‘The Peculiar Genius of Private-Law Systems': Making Room for Religious Commerce, (Washington University Law Review, Forthcoming).
• Katherine Shaw, Reva B. Siegel & Melissa Murray, Introduction: Reproductive Rights and Justice Stories, (Forthcoming).
• David S. Cohen & Carole Joffe, Obstacle Course: The Everyday Struggle to Get an Abortion in America (Introduction), (California Press 2020).
• Beatrice Jessie Hill & Ruth Faden, Brief for Biomedical Ethicists Ruth R. Faden, PH.D., et al., Amici Curiae in Support of Petitioners, EMW Women’s Surgical Center, P.S.C., et al. v. Adam Meier, No. 19-417 (9th Cir. Oct. 28, 2019),  (November 28, 2019).
• Shirley Lin, Dehumanization 'Because of Sex': A Neutral Approach to the Rights of Sexual Minorities Under Multiaxial Analysis, (Lewis & Clark Law Review, Forthcoming).
• M. Stuart Madden, The Social Guidance of Myth, Folklore and Faith, (December 22, 2019).

Claims Against Notre Dame and Feds Over Contraceptive Coverage Move Ahead

Irish 4 Reproductive Health v. U.S. Department of Health and Human Services, (ND IN, Jan. 16, 2020), is the latest installment in the dispute over the extent to which Notre Dame University must provide contraceptive coverage in its health insurance plans for employees and students. As described by the Indiana federal district court:

There are really two separate disputes at play here. The first involves a challenge to regulations that would allow Notre Dame to declare itself exempt from the Women’s Health Amendment of the Patient Protection and Affordable Care Act (“ACA”)....

The second part of this case presents a [new] wrinkle.... [A] week after issuing the interim final rules..., the Federal Defendants executed a private settlement agreement with Notre Dame exempting the university from all existing and future requirements with respect to contraceptive coverage. Notre Dame did not seek input from its students or faculty before entering into the settlement agreement. The Plaintiffs in this case — Irish 4 Reproductive Health (an association of Notre Dame students), Natasha Reifenberg, and Jane Does 1-3 — claim this backroom deal is illegal and unconstitutional. 

The court refused to dismiss plaintiffs' claims that the settlement agreement and the exemptive rules violate the Administrative Procedure Act and the Establishment Clause of the 1st Amendment. However the court did dismiss due process and equal protection challenges. (See prior related posting.)

Canadian Court Says Indigenous Events In School Did Not Infringe Religious Freedom of Christian Students

In Canada, in Servatius v. Board of Education School District No. 70, (BC Sup. Ct., Jan. 8, 2020), a British Columbia trial court judge rejected claims of infringement of religious freedom asserted by the mother of two school children. The court summarized the dispute:

As part of an effort to acquaint students with Indigenous culture and to promote a sense of belonging in Indigenous children, a Nuu-chah-nulth Elder visited a Port Alberni elementary school and demonstrated the practice of smudging. A few months later, an assembly at this public school witnessed an Indigenous dance performance, in the midst of which the dancer said a prayer. The petitioner is an evangelical Christian. Her nine-year-old daughter and seven-year-old son were enrolled in the school and witnessed these demonstrations of Indigenous culture and spirituality.

In dismissing the claims, the court said in part:

When arrangements are made for Indigenous events in its schools, even events with elements of spirituality, the School District is not professing or favouring Indigenous beliefs. Educators are holding these events to teach about Indigenous culture, and to introduce students to Indigenous perspectives and worldviews....

I conclude that proof on an objective basis of interference with the ability of the petitioner or her children to act in accordance with their religious beliefs requires more than the children being in the presence of an Elder demonstrating a custom with spiritual overtones or being in the presence of a dancer who said a brief prayer. In most instances, it is not difficult to recognize the boundary between a student learning about different beliefs and being made to participate in spiritual rituals. A field trip to a mosque to watch prayers would be learning about Islam; an Imam coming to the classroom and demonstrating prayer rituals would likewise not be problematic. However, in either of these cases, if the involvement of the students progressed to being called upon to pray or read from the Koran then it might well be said that educators have compelled the manifestation of a specific religious practice or the affirmation of a specific religious belief. If a Catholic priest came to school with altar candles and a censer containing incense to acquaint the students with the sights and scents of Church rites, this would seem to be well within the bounds of what the S.L. case stands for: religious freedom is not compromised when students are taught about other beliefs. If, however, the children underwent a baptism, this would be far over the line.

(See prior related posting.)

Supreme Court Grants Review In Contraceptive Mandate Exemption Case

The U.S. Supreme Court today granted review in Little Sisters of the Poor v. Pennsylvania (Docket No. 19-431) and Trump, President of the U.S. v. Pennsylvania (Docket No. 19-454) (certiorari granted 1/17/2020). (Order List).The two cases were consolidated for oral argument. In the case, the U.S. 3rd Circuit Court of Appeals 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 were intervenors in the 3rd Circuit case. (See prior posting.)

8th Circuit Hears Arguments In Religion Clause Challenge To Missouri Abortion Restrictions

The U.S. 8th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Doe v. Parson (Docket No. 19-1578). In the case, a Missouri federal district court rejected both Establishment Clause and free exercise challenges to Missouri's abortion law.  The suit, filed by a member of the Satanic Temple, challenges the requirement that health care providers furnish women seeking an abortion in Missouri a state-prepared booklet that states, in part, that life begins at conception. (See prior posting.) Courthouse News Service reports on yesterday's arguments.

Online Site Has Immunity In Banning Conversion Therapy Videos

In Domen v. Vimeo, Inc., (SD NY, Jan. 15, 2020), a New York federal magistrate judge dismissed a suit by James Domen, a pastor who is the founder of Church United, a non-profit organization devoted to preserving the rights of pastors to exercise their faith without unlawful infringement.  Domen sued claiming religious and sexual orientation discrimination after Vimeo, an online video-sharing website, closed his account when he refused to remove five videos promoting sexual orientation change efforts.  The court held that Vimeo had both publisher immunity and immunity to police content under Section 230 of the Communications Decency Act, and that Section 230 pre-empts state civil rights laws. It also held that Domen had not shown the required discriminatory intent under either California or New York's anti-discrimination laws, and had not stated a free speech claim under California's constitution.  Courthouse News Service reports on the decision.

6th Circuit: Mosque Is Not In Interstate Commerce Under Federal Arson Statute

In United States v. Doggert, (6th Cir., Jan. 15, 2020), the U.S. 6th Circuit Court of Appeals reversed defendant's conviction for solicitation to commit federal arson of a local mosque. The federal arson statute (18 USC §844(i)) covers only property used in interstate of foreign commerce or in an activity affecting such commerce. The court said in part:

By any conventional measure, these terms do not cover the attempted destruction of a local mosque or for that matter any house of worship. In everyday English, one does not think of a mosque that serves a 200-person local community as a building used in commerce, much less interstate commerce. There may be plenty of good reasons to prosecute Robert Doggart for his deranged plan. But the words of this statute are not one of them.

However the court upheld Doggart's conviction under 18 USC §373 for solicitation to commit a crime of violence, namely destroying religious property in violation of 18 USC 247. [Thanks to Volokh Conspiracy for the lead.]

Suit In India Over Discriminatory Citizenship Law

In India, the state of Kerala has filed suit in the Supreme Court challenging as discriminatory the Citizenship Amendment Act, 2019, and various prior rules on citizenship for members of certain religious minorities who entered the country illegally. The complaint (full text) in State of Kerala v. Union of India, (India Sup. Ct., filed 1/14/2020), alleges in part:

The Impugned Amendment Act and Rules and Orders, though cover the persecuted religious minorities of Pakistan, Afghanistan and Bangladesh, overlooks the issues of Rohingyas in Myanmar and Muslims in Sri Lanka, who are also miniscule minorities in the said countries, which are also sharing international borders with India and which are also countries to which and from which there has been trans- border migrations....

The Impugned Amendment Act and Rules and Orders are discriminatory in so far it covers only religious persecution, among persecutions on very many grounds, of an irrationally chosen class of minorities in an unreasonably chosen class of neighbouring countries.... They do not cover the persecutions on the grounds of ethnicity, linguistics etc even in the said class of three countries. They do not cover the ethnic issues of Balochs, Sindhis, Pakthuns and Mohajirs in Pakistan and the Biharis in Bangladesh.

Jurist reports on the lawsuit. (See prior related posting.)

New Federal Proposals On Grants To Religious Entities, Campus Speech and Guidance on School Prayer

The White House (Fact Sheet, President's Remarks), the Department of Justice and the Department of Education each yesterday announced initiatives on school prayer and participation of religious organizations in government grant programs.

The Department of Education issued a 203-page Notice of Proposed Rulemaking (full text) which proposes rule changes to prevent discrimination against faith-based entities receiving federal grants and to protect free speech on campuses. DOE and the Department of Justice also issued revised Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools (full text).

The Department of Justice issued a 29-page Notice of Proposed Rulemaking (full text) on  Equal Participation of Faith-Based Organizations in Department of Justice’s Programs and Activities. Among the changes described in the Notice is one which:

delet[es] the requirement that faith-based social service providers refer beneficiaries objecting to receiving services from them to an alternative provider and the requirement that faith-based organizations provide notices that are not required of secular organizations.

Finally, the Office of Management and Budget issued a 2-page Memorandum providing guidance as to federal grants. (full text). It reads in part:

Even when no Federal regulation or grant term penalizes or disqualifies grant applicants from participation based on their religious character, some state laws governing awards to subgrantees, including state constitutions, may purport to limit sub-grantee participation in violation of the U.S. Constitution. In attempting to comply with such state constitutions and laws, grantees may be discriminating against applicants for sub-grants on the basis of religion, in violation of the Constitution's Free Exercise Clause and the grantee's commitment to adhere to Federal laws prohibiting discrimination under 2 C.F.R. § 200.300. Accordingly, grant awarding agencies shall ensure that the terms of the Federal grants they award make clear that states or other public grantees may not condition sub-awards of Federal grant money in a manner that would disadvantage grant applicants based on their religious character.

USA Today reports on these developments.