Religion Clause

Thursday, June 18, 2020

Cert. Petition Filed In Title VII Reasonable Accommodation Case

A petition for certiorari (full text) was filed this week in Small v. Memphis Light, Gas and Water, (Sup. Ct., file 6/16/2020). In the case, the U.S. 6th Circuit Court of Appeals affirmed the dismissal of an employment discrimination claim by a Jehovah's Witness, concluding that Memphis Light adequately accommodated their employee's religious beliefs when it allowed him to swap shifts with other employees. (See prior posting.) The petition for review presents the question as:

Whether Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977), which stated that employers suffer an “undue hardship” in accommodating an employee’s religious exercise whenever doing so would require them “to bear more than a de minimis cost,” misinterprets § 2000e(j) and should be overruled.

[Thanks to Jim Sonne for the lead.]

Wednesday, June 17, 2020

Russian Court Sentences Jehovah's Witness To 6½ Years In Prison

Forum 18 reports that in the Russian city of Pskov, a trial court has sentenced a 61-year old Jehovah's Witness to 6½ years imprisonment on charges of financing extremist activity. This is the longest sentence imposed on a Jehovah's Witness since the 2017 Russian Supreme Court decision banning Jehovah's Witness activity. A 6-year sentence was imposed on another Jehovah's Witness by a court in the city of Oryol last year.

Minister Challenges Louisiana Cockfighting Ban

Suit was filed last week in a Louisiana federal district court by Holy Fight Ministries and its minister claiming that Louisiana's ban on cockfighting violates their federal and state free exercise rights as well as the Establishment Clause. The complaint (full text) in Plumbar v. Landry, (MD LA, filed 6/12/2020), alleges in part:

Reverend Plumbar, Holy Fight Ministries and its congregation hold the sincere religious belief that cockfighting represents that while they strive for CHRIST, they have a necessary symbolic physical manifestation, an epiphany through the fighting cock, a religious mandate of the struggle between good and evil, a struggle for life or death for the Salvation of the soul, and thus cockfighting is an integral and essential part of their religious faith.

[Thanks to Scott Mange for the lead.]

7th Circuit Upholds Illinois COVID-19 Restrictions On Worship Services

In Elim Romanian Pentecostal Church v. Pritzker, (7th Cir., June 16, 2020), the U.S. 7th Circuit Court of Appeals rejected a church's challenge to Illinois Governor J.B. Pritzker's COVID-19 orders which restrict-- or in their latest form urge restriction-- on the size of worship services. The court said in part:

Plaintiffs maintain ... that the ten-person cap disfavors religious services compared with, say, grocery shopping (more than ten people at a time may be in a store) or warehouses (where a substantial staff may congregate to prepare and deliver the goods that retail shops sell)....

So what is the right comparison group: grocery shopping, warehouses, and soup kitchens, as plaintiffs contend, or concerts and lectures, as Illinois maintains? Judges of other appellate courts have supported both comparisons....

It would be foolish to pretend that worship services are exactly like any of the possible comparisons, but they seem most like other congregate functions that occur in auditoriums, such as concerts and movies.... Functions that include speaking and singing by the audience increase the chance that persons with COVID-19 may transmit the virus through the droplets that speech or song inevitably produce....

Courthouse News Service reports on the decision.

Tuesday, June 16, 2020

Supreme Court Stays Execution Of Prisoner Denied A Chaplain In the Execution Chamber

The U.S. Supreme Court today granted a stay of execution pending its decision on whether to grant review in Gutierrez v. Saenz. Ruben Gutierrez's execution was scheduled for today. In the case the U.S. 5th Circuit Court of Appeals vacated a stay of execution that had been granted to a convicted murderer who complained about Texas' exclusion of chaplains from the execution chamber. (See prior posting.) The Supreme Court, while now granting a stay until it either denies certiorari or it grants review and decides the case (full text of Order), added as part of its order:

The District Court should promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.

USA Today reports on the Court's decision.

5th Circuit Upholds Texas Prison Chaplain Execution Protocol

In Gutierrez v. Saenz, (5th Cir., June 12, 2020), the U.S. 5th Circuit Court of Appeals vacated a stay of execution that had been granted to a convicted murderer who complained about Texas' exclusion of chaplains from the execution chamber. The court said in part:

Gutierrez fails to make a strong showing of a likelihood of success in establishing that TDCJ’s execution policy is not “reasonably related to legitimate penological interests.” ...

Perhaps Gutierrez is being denied the final measure of spiritual comfort that might be available. As important as that is, government action does not rise to the level of a substantial burden on religious exercise if it merely prevents the adherent from enjoying some benefit that is not otherwise generally available.

Monday, June 15, 2020

Supreme Court: Title VII Bans LGBT Discrimination

The U.S. Supreme Court today in a 6-3 decision in Bostock v. Clayton County, Georgia, (Sup. Ct., June 15, 2020), held that the provisions of Title VII of the 1964 Civil Rights Act which prohibit discrimination in employment "because of sex" protect gay, lesbian and transgender individuals. In an opinion written by Justice Gorsuch, and joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan, the court said in part:

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

Justice Alito filed a dissent, joined by Justice Thomas, saying in part:

The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added)….

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.

Justice Kavanaugh also filed a dissent, saying in part:

Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.

The Court's opinion covered three cases, Bostock, Altitude Express, and R.G. & G.R. Harris Funeral Homes. Religion News Service reports on the decision.

Suit Challenges NY Worship Restrictions vs. Permitted Floyd Protests

Suit was filed last week in a New York federal district court by two Catholic priests and three Orthodox Jews challenging limits on worship services imposed by New York state and city COVID-19 orders. The complaint (full text) in Soos v. Cuomo, (ND NY, filed 6/10/2020), alleges in part:

[W]hile defendants jointly impose this arbitrary, pseudo-scientific regime of strict gathering limits for some groups and activities but not others, they are permitting closely packed gatherings of thousands to protest the wrongful death of George Floyd at the hands of a police officer, which have been taking place in New York City and every other major city in New York State day-after-day since Floyd’s death on May 25.

Plaintiffs' Memorandum In Support of an Application for a Preliminary Injunction (full text) contends in part:

Here, the Orders only purport to mandate a general limit on non-essential gatherings across the state. But aside from the voluminous formal exemptions that undermine the Orders’ general applicability ..., Defendants recently granted an individualized exemption to mass gatherings protesting the death of George Floyd at the hands of a police officer.... These protests have involved hundreds or thousands of protestors all across the state, often packed together shoulder-to-shoulder in express derogation of the Orders’ limits on gathering sizes and social distancing.... And yet, while Defendants expressly approve of these gatherings, they have insisted that limits on religious gatherings remain in place.... This is exactly the type of disparate individualized assessment that must pass strict scrutiny under the Free Exercise Clause.

Thomas More Society issued a press release announcing the filing of the lawsuit. [Thanks to Steven H. Sholk for the lead.]

UPDATE: Here is defendants' Memorandum of Law in Opposition to Application for Injunctive Relief.

Sunday, June 14, 2020

Abortion Rights Groups Sues For Defamation

A lawsuit was filed last week in a Texas state trial court by an abortion rights group charging Right To Life East Texas and its director with defamation. The complaint (full text) in The Lilith Fund for Reproductive Equity v. Dickson, (TX Dist. Ct., filed 6/11/2020), alleges that plaintiff has been defamed as part of defendants' successful efforts to get various municipalities to enact ordinances, contingent on the Supreme Court's overturning of Roe v. Wade, declaring abortion to be murder. Defendants have labeled plaintiff a criminal organization. The complaint alleges in part:

To be perfectly clear, Lilith Fund is not arguing it has been defamed because Defendants believe or argue that abortion is murder in some moral sense; instead, Lilith Fund has been defamed because Defendants have falsely accused it of assisting in the commission of the specific crime of murder. Lilith Fund has not been defamed because Defendants hope one day to make abortion a crime, but because Defendants presently state that Lilith Fund is, at this moment, breaking the law. These statements are baseless and provably false, and Defendants knew these statements were false when they were uttered as their own statements and the text of the ordinance itself demonstrates. In Texas, this is enough, on its own, to support a claim of defamation, even in the absence of damages.

[Thanks to Scott Mange for the lead.]

Saturday, June 13, 2020

Court Upholds Nevada COVID-19 Restrictions On Worship Services

In Calvary Chapel Dayton Valley v. Sisolak, (D NV, June 11, 2020), a Nevada federal district court upheld Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing. Citing the U.S. Supreme Court's recent South Bay decision, the court said in part:

Given that there are some secular activities comparable to in-person church services that are subject to more lenient restrictions, and yet other activities arguably comparable to in-person church services that are subject to more stringent restrictions, the Court cannot find that the Emergency Directive is an implicit or explicit attempt to specifically target places of worship.... Additionally, whether a church is more like a casino or more like a concert or lecture hall for purposes of assessing risk of COVID-19 transmission is precisely the sort of “dynamic and fact-intensive” decision-making “subject to reasonable disagreement,” that the Court should refrain from engaging in.

Courthouse News reports on the decision. [Thanks to Scott Mange for the lead.]

Friday, June 12, 2020

HHS Adopts Final Rule Rolling Back Transgender and Abortion Protections In Health Care

The Department of Health and Human Services today adopted a final rule that rolls back health care anti-discrimination coverage in federally supported activities and programs. In 2016 by the Obama Administration expanded protections for transgender individuals and for those who had accessed abortion services. The 344-page adopting Release (full text) reversing those changes explains:

The 2016 Rule’s definition of discrimination “on the basis of sex” encompassed discrimination on the basis of gender identity (“an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female”). In line with that definition, the 2016 Rule imposed several requirements regarding medical treatment and coverage on the basis of gender identity. The same definition also encompassed discrimination on the basis of “termination of pregnancy” without incorporating the explicit abortion-neutrality language of 20 U.S.C. 1688 (which some commenters referred to as the Danforth Amendment) in Title IX, and it imposed a high burden of proof on providers to justify offering gynecological or other single-sex medical services. All of these are essentially legislative changes that the Department lacked the authority to make.

Responding to comments submitted on the Rule in its proposed form, the Release says in part:

The U.S. government has taken the position in Harris and other relevant litigation that discrimination “on the basis of sex” in Title VII and Title IX does not encompass discrimination on the basis of sexual orientation or gender identity. The Department shares that position and is permitted to issue regulations on the basis of the statutory text and its best understanding of the law and need not delay a rule based on speculation as to what the Supreme Court might say about a case dealing with related issues....

The Department does not condone the unjustified denial of needed medical care to anyone, and believes that everyone, regardless of gender identity or sexual orientation, should be treated with dignity and respect. The Department must interpret Congress’s purpose in passing the ACA by reading that statute’s plain text. The ACA sought to expand access to healthcare and healthcare coverage through some means but not others: in particular, Congress saw fit to incorporate into the ACA certain nondiscrimination protections, and not others. For example, in the unlikely event that a healthcare provider were to deny services to someone based solely on his or her political affiliation, the Department would not be able to address such denial of care under Section 1557. Under this final rule, OCR is committed to no less than full enforcement of the prohibitions on discrimination that Congress included in Section 1557, without exceeding the statutory text. Unlike other bases of discrimination, the categories of gender identity and sexual orientation (as well as political affiliation) are not set forth in those statutes.

Bloomberg Law reports on the new rule.

Suit Challenges Illinois Abortion Coverage Mandate

Suit was filed this week in an Illinois state trial court by a religious organization and two employers challenging the Illinois Reproductive Health Act of 2019. The Act requires every health insurance plan which provides pregnancy-related benefits to also provide coverage for abortion. The complaint (full text) in Illinois Baptist State Association v. Illinois Department of Insurance, (IL Cir. Ct., filed 6/10/2020), contends that the statute violates the Illinois Religious Freedom Restoration Act and the Illinois Health Care Right of Conscience Act. Thomas More Society issued a press release announcing the filing of the lawsuit.

Thursday, June 11, 2020

DOJ Proposes Changes In Asylum Procedures

The Departments of Justice and Homeland Security announced yesterday that they have submitted to the Federal Register a Notice of Proposed Rulemaking (full text) that

will create more efficient procedures for the adjudication of claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) regulations.

Among the bases for asylum are a "well-founded fear of persecution on account of ... religion [or] membership in a particular social group...." The proposed rule changes would (among other things):

Amend the regulations governing credible fear determinations so that individuals found to have such a fear will have their claims for asylum, withholding of removal, or protection under the CAT adjudicated by an immigration judge in streamlined proceedings, rather than in immigration court proceedings conducted under section 240 of the Immigration and Nationality Act (INA)...

Raise the burden of proof for the threshold screening of withholding and CAT protection claims from “significant possibility” to a “reasonable possibility” standard...

State Department Releases 2019 International Religious Freedom Report

Yesterday, the U.S. State Department released its 2019 Report on International Religious Freedom. The State Department said in part:

The annual Report to Congress on International Religious Freedom – the International Religious Freedom Report – describes the status of religious freedom in every country. The report covers government policies violating religious belief and practices of groups, religious denominations and individuals, and U.S. policies to promote religious freedom around the world. The U.S. Department of State submits the reports in accordance with the International Religious Freedom Act of 1998.

The State Department presents the Report in an online format that allows readers to select the countries whose activities they wish to see. Secretary of State Pompeo and Ambassador at Large for Religious Freedom Samuel Brownback spoke with the press as they released the report. (Full text of remarks and press conference).

NLRB Reduces Its Jurisdiction Over Religious Colleges

In Bethany College, (NLRB, June 10, 2020), the National Labor Relations Board overruled its 2014 decision in Pacific Lutheran that had expanded NLRB jurisdiction over religiously-affiliated colleges. The NLRB said in part:

[W]e now hold that the Board does not have jurisdiction over matters concerning teachers or faculty at bona fide religious educational institutions. We further hold that the test set forth in the D.C. Circuit’s Great Falls case is the appropriate test.... Under this bright-line test, the Board will leave the determination of what constitutes religious activity versus secular activity precisely where it has always belonged: with the religiously affiliated institutions themselves, as well as their affiliated churches and, where applicable, the relevant religious community. Applying the Great Falls test will remove any subjective judgments about the nature of the institutions’ activities or those of its faculty members.... It will prevent the type of intrusive inquiries that the Supreme Court prohibited in Catholic Bishop.... Finally, and importantly, it will provide the Board with a mechanism for determining when self-identified religious schools are not, in fact, bona fide religious institutions, therefore protecting the rights of employees working for those institutions.

[Thanks to Steven H. Sholk for the lead.]

Wednesday, June 10, 2020

Satanist's 1st Amendment Challenge To Missouri Abortion Law Fails

In Doe v. Parson, (8th Cir., June 9, 2020), the U.S. 8th Circuit Court of Appeals rejected claims by a member of the Satanic Temple that Missouri's abortion informed consent law violates her 1st Amendment rights. Plaintiff argues that the state's informed consent booklet violates the Establishment Clause by promoting "Catholic dogma" about when life begins. The court rejected that argument, saying in part:

Some religions, including Catholicism, embrace the view that life begins at conception. Others, like Doe’s Satanism, do not. Any theory of when life begins necessarily aligns with some religious beliefs and not others. So under Doe’s theory, Missouri’s only option would be to avoid legislating in this area altogether.

The court also rejected plaintiff's argument that the requirement that she certify that she has had an opportunity to view and ultrasound and the informed consent booklet violates her free exercise rights. The court said in part:

Doe makes no argument ... that the informed-consent law is anything other than “neutral” and “generally applicable.”

Ban On Sex Offender Attending Church Services Is Upheld

In State of Washington v. Duschene, (WA App., June 8, 2020), a Washington state appellate court upheld the sentence and community custody provisions imposed on a convicted sex offender. Among other things, defendant argued that the condition that prohibits him from entering areas where children's activities regularly occur violates his 1st Amendment free exercise rights because this prohibits him from attending church services. The court disagreed, saying in part:

A burden on the exercise of religion ... must withstand strict scrutiny.... Once the complaining party establishes a coercive effect, the burden of proof shifts to the government to show the restrictions serve a compelling state interest and are the least restrictive means for achieving that interest....

The record shows that DuSchene has regularly attended church in the past, and that he considers himself a Christian. But he does not argue that he sincerely holds his religious convictions, that those convictions are central to the practice of his religion, or that the challenged enactment burdens the free exercise of his religion. Thus, he has not established that the condition has a coercive effect, and his challenge on this ground fails.

Tuesday, June 09, 2020

Catholic Peace Activist Sentenced To Time Served For Trespassing

RNS reports:

A U.S. District Court judge has sentenced an 80-year-old Catholic peace activist to time already served for trespassing onto the Kings Bay Naval Submarine Base in St. Marys, Georgia, more than two years ago as part of a symbolic nuclear disarmament action.

Elizabeth McAlister, a former nun with the Religious of the Sacred Heart of Mary, had already served 17 months in a Glynn County Detention Center in Brunswick, Georgia, following the April 4, 2018 action.

In a video conference call on Monday (June 8), Judge Lisa Godbey Wood sentenced McAlister to time served, three years of probation and $25 a month in restitution until the amount of damage caused by the break-in — which the Navy estimated at $33,503 — is paid back in full by all the activists.

Minnesota Amish Must Install Septic Tanks

In Mast v. County of Fillmore, (MN App., June 8, 2020), the Minnesota state Court of Appeals rejected claims by four members of the Amish community that laws requiring them to install septic systems to dispose of their waste water violate their freedom of conscience under the Minnesota Constitution and their rights under RLUIPA. The Court of Appeals said in part:

the district court appropriately concluded that respondents met their burden of demonstrating that appellants’ mulch-basin system does not provide a less-restrictive means of accomplishing the government’s compelling interests of protecting public health and the environment.

Rochester Post Bulletin reports on the decision.