Challenge To California COVID-19 Limits On Church Services Rejected

 In Whitsitt v. Newsom, (ED CA, Aug. 19, 2020),a California federal magistrate judge recommended dismissing a challenge to the California governor's COVID-19 orders that limited attendance at church service. Rejecting plaintiff's free exercise challenge, the court said in part:

Here, the Stay at Home Order and the subsequent guidelines are facially neutral regarding religion. The Order directs all residents to stay home “except as needed to maintain continuity of operations” of certain business sectors.... The Order exempts “[f]aith based services that are provided through streaming or other technology.” ... Although the Order expressly mentions religious services, it does so to exempt them from its restrictions. The mention of religious services in this context—to exempt them from the Stay at Home Order—does not transform the Order into a facially discriminatory one.

Negligence Claims Against Anti-Gay Church and Pastor Should Not Be Dismissed Under Anti-SLAPP Law

Fritz v. Jimenez, (CA App., Aug. 18, 2020), is a suit brought by individuals who staged protests against Verity Baptist Church and its pastor Roger Jimenez after Jimenez delivered and posted sermons praising the killing of nearly 50 people in a Florida gay night club. The protesters claim that they were subjected to physical violence, death threats and intimidation by church employees. Defendants asked the trial court to dismiss various claims under California's anti-SLAPP statute which is designed to quickly get rid of suits that are brought strategically to chill free speech. The trial court, on this theory, dismissed plaintiffs' claim of negligent supervision. The Court of Appeals reversed saying that the claim did not arise from defendants' exercise of free speech. The court said in part: 

The sermons of Jimenez provide for a clearer understanding of the situation in which the conduct by VBC and Jimenez’s agents and employees happened. However, the statements of Jimenez are not the focus of the negligence claim. Plaintiffs’ negligence claims are colorable even if none of Jimenez’s statements were contained on the complaint because the complaint would still set forth such regular occurrences of violence and intimidation that a claim for negligent supervision would be stated. Even so, plaintiffs are entitled to rely on Jimenez’s sermons and statements to help establish the foreseeability of physical violence and intimidation against them as a risk inherent in the way VBC and Jimenez conducted the enterprise....

The court also affirmed the trial court's refusal to dismiss plaintiffs' premises liability claim. [Thanks to Scott Mange for the lead.]

McDonald's Franchisee Settles EEOC Religious Discrimination Suit

The EEOC announced yesterday that an Orlando, Florida McDonald's franchisee has settled a religious discrimination lawsuit filed against it by the EEOC.  The restaurant refused to hire a Jewish applicant as a part-time maintenance worker because the applicant would not shave his beard. It refused to create an accommodation to its policy that all employees must be completely clean shaven, even though the applicant offered to wear his beard in a net.  A 2½ year consent decree gives damages of $69,555 to the applicant and requires the franchisee to change its grooming policies, conduct anti-discrimination training and take other compliance steps.

Oregon State Law Overrides County Limit On Zoning For Mosque

 In Tarr v. Multnomah County, (OR App., Aug. 19, 2020), an Oregon state appellate court held that a state statute governing zoning for houses of worship prevents a county from applying a "compatibility standard" that appears in the county zoning code.  In a suit by individuals living next door to property on which it is proposed to build a mosque, the court concluded that the county code's requirement that a community service use be "consistent  with  the  character  of  the  area" cannot be invoked to prevent construction of the mosque.  The court said in part:

the  plain  terms  of  ORS  215.441(1)  and  (2),  in context, leave no room for the application of the county’s compatibility  standard—or  standards  like  it—to  proposed  religious  land  uses  where,  as  here,  a  place  of  worship  is  allowed  on  a  particular  piece  of  real  property  under  state  law  and  county  zoning  laws.

Worshipers Lack Standing to Sue Synagogue Picketers

 In Gerber v. Herskovitz, (ED MI, Aug. 19, 2020), a Michigan federal district court dismissed for lack of standing a lawsuit against protesters who for almost 18 years have picketed an Ann Arbor, Michigan synagogue every Saturday morning with anti-Jewish and anti-Israel signs. Plaintiffs, who attend Sabbath services in the synagogue or in an adjacent building, also sued the city of Ann Arbor for failing to enforce the City Code against the protesters.  Plaintiffs contend that the picketing interferes with their Free Exercise right to practice their religion without being harassed. The court held, however:

There is no allegation that the protestors prevent Plaintiffs from attending Sabbath services, that they block Plaintiffs’ path onto the property or to the Synagogue, or that the protests and signs outside affect the services inside. Plaintiffs merely allege that the Defendants’ conduct causes them distress and “interferes” with their enjoyment of attending religious services. This is the “subjective chill” that is “not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13-14 (1972). This type of “chill” does not confer standing and is not actionable. 

Islamic Terrorism Unit In Course Does Not Violate 1st Amendment

In Sabra v. Maricopa County Community College District, (D AZ, Aug. 18, 2020), an Arizona federal district court dismissed a suit challenging the manner in which a community college faculty member taught a portion of a World Politics course. Plaintiffs contend that the instructor's primary message in teaching the Islamic Terrorism module of the course was disapproval of Islam.The court rejected both Establishment Clause and Free exercise challenges, saying in part:

Examining the course as a whole, a reasonable, objective observer would conclude that the teaching’s primary purpose was not the inhibition of religion. The offending component was only a part of one-sixth of the course and taught in the context of explaining terrorism. One aspect of terrorism is Islamic terrorism. Only in picking select quotes from the course can one describe the module as anti-Islam.... [T]he primary effect of Dr. Damask’s course is not the inhibition of the practice of Islam. Therefore, the Plaintiffs’ Establishment Clause claims must be dismissed....

Mr. Sabra was not required to adopt the views expressed by Dr. Damask or the authors Dr. Damask cited to in his course, but only to demonstrate an understanding of the material taught. Dr. Damask’s course did not inhibit Mr. Sabra’s personal worship in any way. Instead, Mr. Sabra was simply exposed to “attitudes and outlooks at odds” with his own religious perspective.... Therefore, as a matter of law, the Court finds that the Plaintiff’s allegations do not amount to a violation of the Free Exercise Clause by the Defendants....

[Thanks to Volokh Conspiracy for the lead.]

Court Enjoins Trump Administration Roll Back of Transgender Protections In Health Care

 In Walker v. Azar, (ED NY, Aug. 17, 2020), a New York federal district court enjoined the Trump Administration's roll back of anti-discrimination rules under the Affordable Care Act and Title IX. The roll back eliminated protections for LGBTQ individuals, and in particular for transgender persons. Citing the Supreme Court's recent Bostock decision, the court stayed the new rules' definition of discrimination on the basis of sex.  The court said:

As a result, the definitions of “on the basis of sex,” “gender identity,” and “sex stereotyping” currently set forth in 45 C.F.R. § 92.4 will remain in effect.

Politico reports on the decision.

Churches Respond To IRS Proposed Changes In Group Exemption Letter Program

 In May, the Internal Revenue Service issued a 63-page proposal (full text) to update procedures for a parent organization to obtain 501(c)(3) non-profit status rulings for a group of subordinate organizations. The Notice explains its purpose, saying in part:

The Internal Revenue Service (IRS) is issuing this guidance in proposed form to provide an opportunity for public comment because the IRS recognizes that, if finalized, the proposed revenue procedure would make substantial changes to the procedures set forth in Rev. Proc. 80-27 and that the application of these new procedures may impose an additional administrative burden on central organizations with group exemption letters in existence on the date the final revenue procedure is published in the Internal Revenue Bulletin (preexisting group exemption letters).

The IRS oversees more than 4,000 group exemption letters that include more than 440,000 subordinate organizations. The IRS has considered how to reduce the administrative burden and increase the efficiency of the group exemption letter program, to improve the integrity of data collected for purposes of program oversight, to increase the transparency of the program, and to increase compliance by central organizations and subordinate organizations with program requirements....

Last week, a 14-page joint comment letter (full text) was filed with the IRS by the Evangelical Lutheran Church, the United Church of Christ, The United Methodist Church, The Episcopal Church, and the Reformed Church in America. It contends that the proposal in its present form violates both RFRA and the 1st Amendment, saying in part:

This letter asks that if the IRS adopts a revamped procedure for the administration of the group ruling exemption process, it make an accommodation to allow the faith communities to continue their status quo.... We do not believe the IRS desires a set of modifications that would burden the expression of religious beliefs in ways that would range from making group rulings overwhelmingly unmanageable to obviously unconstitutional....

The Proposed Revenue Procedure requires that subordinate organizations participating in a group exemption ruling must adopt a uniform governing instrument... 

Considering the decades during which these religious organizations added first thousands, and then tens of thousands, of subordinate organizations to their group rulings, the impact of this requirement going forward is enormous....

Further, the very act of requiring uniform governing instruments is theologically untenable in these denominations that have chosen respective ecclesiastical structures and relationships that best express their beliefs about where authority resides and how it is exercised, and how and by whom ultimate decisions about key theological issues are made....

Even if RFRA were not dispositive, the First Amendment would bar the IRS from effectively dictating polity and structure matters inside a denomination. The IRS cannot close the Group Exemption process to all churches except those able to eccelsiologically impose specific civil forms on subordinates.

Other denominations have also filed comment letters. [Thanks to Jennifer Gniady for the lead.]

Church's Battle Against California Indoor Worship Ban Leads To Court Decisions, and Defiance

 As previously reported, last week church and its pastor filed suit in a California state trial court challenging on state constitutional grounds California's COVID-19 restrictions on worship services. A Thomas More Society press release recounts part of the developments since then:

Hours after Grace Community Church filed suit to invalidate Los Angeles County’s unconstitutional restrictions on churches, the county filed for a temporary restraining order to force the church to stop holding indoor services and comply with unreasonable and over-broad demands. Judge James Chalfant denied almost all of the county’s requests at the August 14 Los Angeles Superior Court hearing, agreeing with MacArthur and the church that it is the county’s burden to show why they should be permitted to infringe on the constitutionally protected rights of churches to freely exercise religion....

 Attorneys for Grace Community Church explained that Los Angeles County was being unreasonable in its demands, and offered to have the congregation comply with face mask wearing and social distancing indoors until the matter could be fully heard.... The judge agreed and set the full hearing for September 4, 2020, ordering the church to have congregants wear masks and social distance between family groups indoors.

The county immediately filed for a writ of mandate with the state court of appeals seeking to override the trial court's order so that it could enforce the COVID-19 ban on indoor church services. The Court of Appeals quickly stayed the trial court's order to the extent it prevented the county from enforcing the ban,  In County of Los Angeles v. Superior Court of Los Angeles County, (CA App., Aug. 15, 2020), the court said in part:

At this very preliminary stage in this litigation, the County has demonstrated a likelihood that it will prevail on the merits of enforcing its July 18, 2020 Health Order. The County's Health Order is presumed to be constitutional unless its "unconstitutionality clearly, positively and unmistakably appears."

According to Religion News Service:

On Sunday morning [Aug. 16], the church met anyway — inside, unmasked, and without adhering to social distancing.

[Pastor] MacArthur noted the church’s defiance during the service, saying, “the good news is that you’re here, you’re not distancing, and you’re not wearing masks.” The congregation cheered in response.

Recent Articles and Books of Interest

 From SSRN:

• Sephen A. Rosenbaum, Invisibility, Inclusivity & Fraternity: [Book Review Essay] 'Was Yosef on the Spectrum? Understanding Joseph Through Torah, Midrash and Classical Jewish Sources' , by Samuel J. Levine, Urim Publications (2019), (36 Touro Law Review 215 (2020)).
• Aabid Majeed Sheikh & Sayed Hanan Yusofi, Religion in International Relations Theory, (Journal of Advances and Scholarly Researches in Allied Education 16, February 2019).
• John H. Shannon & Richard J. Hunter, Jr, The Civil Rights Act of 1964: Beyond Race to Employment Discrimination Based on Sex: The 'Three Letter Word' That Has Continued to Vex Society and The United States Supreme Court, (Journal of Social and Political Sciences, Vol.3 No.3 (2020)).
• Jared Ham, Getting Away with Marginalization: Rejecting a Formalistic Standing Analysis and Remedying LGBTQ+ Discrimination Through Congressional Legislation, (Cornell Journal of Law and Public Policy, Vol. 28, No. 3, 2019).
• Tal Mimran, In A Broken Dream: Lessons from The Rise and Demise of the Self-Declared Caliphate of the Islamic State in Syria and Iraq, (Journal of Transnational Law & Policy, Vol. 29, 2019-2020).
• Aabid Majeed Sheikh, Maulana Maududi and Sayid Qutub on Jihaad and Islamic State, (International Journal of Multidisciplinary Educational Research, Vol 7, No (12(2) (2018).
• Rosemary Teele Langford, Conflicts and Coherence in the Charities Sphere: Would a Conflict By Any Other Name Proscribe the Same?, ((2020) 14 Journal of Equity).
• Peter Molk & D. Daniel Sokol, Nonprofit Governance in an Age of Compliance,(August 7, 2020).

Recent & Forthcoming books:

• Aaron Griffith, God’s Law and Order: The Politics of Punishment in Evangelical America, (Harvard Univ. Press, Nov. 2020).
• William N. Eskridge Jr. & Christopher R. Riano, Marriage Equality: From Outlaws to In-Laws , (Yale Univ. Press, Aug. 2020).

7th Circuit's Limitation On Strip Searches of Inmates Protects Religious Sensibilities [CORRECTED]

 In Henry v. Hulett, (7th Cir., Aug. 11, 2020), the U.S. 7th Circuit Court of Appeals, en banc, held that convicted prisoners retain a Fourth Amendment right to bodily privacy during visual inspection of their bodies. At issue was an abusive mass strip search at a women's prison conducted as part of a cadet training exercise. While the court did not discuss religious freedom issues, an amicus brief (full text) filed by Muslim Advocates, as well as Christian and Jewish groups, emphasized the spiritual harm to prisoners done by strip searches of inmates whose religious beliefs place an emphasis on modesty.  Judge Easterbrook issued a dissenting opinion. Muslim Advocates issued a press release announcing the decision.

Wedding Photographer Successfully Challenges Anti-Discrimination Ordinance

 In Chelsey Nelson Photography LLC v. Louisville/ Jefferson County Metro Government, (WD KY, Aug. 14, 2020), a Kentucky federal district court held that a wedding photographer is likely to succeed in her Free Speech challenge to Louisville, Kentucky's Fairness Ordinance. That law prohibits a business from denying services to an individual based on the person's sexual orientation, and from advertising that it will engage in such discrimination.  Holding that plaintiff's wedding photography is speech, the court said in part:

Nelson is a photographer, editor, and blogger. She takes engagement and wedding photos with artistic skill....

Nelson is also a Christian. Her faith shapes everything she does, including how she operates her photography studio. She believes that marriage is between one man and one woman. For that reason, she would decline to photograph a same-sex wedding, and she would decline to edit photos from a same-sex wedding. She wants to explain these views on her website....

 Louisville can’t ban expression just because it finds the expression offensive.

To be clear, most applications of anti-discrimination laws — including Louisville’s Fairness Ordinance — are constitutional. Today’s ruling is not a license to discriminate. Nor does it allow for the “serious stigma” that results from a sign in the window announcing that an owner won’t serve gay and lesbian customers.... Marriott cannot refuse a room to a same-sex couple.  McDonald’s cannot deny a man dinner simply because he is gay. Neither an empty hotel room, nor a Big Mac, is speech.

ADF issued a press release announcing the decision.

4th Circuit Refuses To Stay Injunction Allowing Mifepristone By Mail

Last month, a Maryland federal district court issued a preliminary injunction against enforcement during the COVID-19 public health emergency of Maryland's in-person requirements that bar women seeking a medical abortion from obtaining mifepristone through a mail-order or retail pharmacy or to receive the medication by mail from their healthcare provider. (See prior posting.) Now in American College of Obstetricians and Gynecologists v. U.S. Food and Drug Administration, (4th Cir., Aug. 13, 2020), the U.S. 4th Circuit Court of Appeals refused to grant a stay of the injunction pending appeal. Courthouse News Service reports on the court's order. [Thanks to Scott Mange for the lead.]

Churches Challenge Minnesota COVID-19 Limits On Worship Services

Three churches and their pastors filed suit this week in a Minnesota federal district court challenging the state's COVID-19 limits on worship services.  The complaint (full text) in Cornerstone Church of Alexandria v. Walz, (D MN, filed 8/13/2020), alleges in part:

The plaintiffs’ religious liberties under the Free Exercise Clause of the First Amendment of the United States Constitution have been violated by Governor Walz’s Executive Orders 20-74 and 20-81. Although during a pandemic, the ordinary constitutional test of strict scrutiny may not apply to the Governor’s regulation of church activities (although it is still argued here in Count I), the government’s regulations must still be “capable of a reasoned application” as they would be for a non-public forum....

Thomas More Society issued a press release announcing the filing of the lawsuit.

Suit Challenges California COVID-19 Limits On Worship Services

 A church and its pastor filed suit this week in a California state trial court challenging on state constitutional grounds California's COVID-19 restrictions on worship services. The complaint (full text) in Grace Community Church of the Valley v. Newsom, (CA Super. Ct., filed 8/12/2020) reads in part:

13. It is time for California to recognize that disfavored religious minorities are not second-class citizens. It is time for California to explain how it can justify banning worship to prevent the spread of a disease (with an overall mortality rate of 0.02%) while it is fine for protestors to spread that disease like wildfire.... In a society hostile to religion, banning worship might be justified to prevent deaths. But how can California—the land of the Missions—justify unfairly imposing the burden of lowering coronavirus infection rates (not death rates) on worshippers?

14. The California State Constitution ... specifically protects the individual right to free exercise of religion. The State would not be justified to place restrictions disparately and unequally in the manner it has even against a regular business or gathering; however, Grace Community Church and every other house of worship in California enjoy heightened protection because our Founders recognized that the church has throughout world history been the target of secular kings and tyrants, not unlike Gavin Newsom....

Thomas More Society issued a press release announcing the filing of the lawsuit.

Kamala Harris Has Varied Religious Background

 Religion News Service reports on the broad exposure to various religious faiths experienced by Kamala Harris, the presumptive Democratic nominee for vice-president. Her mother was Hindu, but she grew up attending predominately Black churches. She now considers herself a Black Baptist. Her husband Douglas Emhoff is Jewish.

Indian Tribe Sues To Stop Trump's Border Wall

 A California Indian tribe filed suit this week in a California federal district court challenging the construction of President Trump's border wall.  The complaint (full text) in La Posta Band of Diegueno Mission Indians v. Trump, (SD CA, filed 8/11/2020), alleges in part:

Since time immemorial, the Kumeyaay people have lived in the area ... surrounding what is now the United States-Mexico border. Since the arrival of Europeans in the region, the Kumeyaay territory, culture, religion, and very existence have been under attack to make way for non-Indian settlement. In the most recent episode of Indigenous erasure, the President of the United States and his administration are desecrating Kumeyaay ancestral burial and sacred sites to make way for a wall along the United States’ southern border. The La Posta Band of the Diegueño Mission Indians ... bring this complaint to halt the construction of the border wall—a project being funded and constructed without authorization from Congress and which is violating the constitutional rights of the La Posta citizens—until the Defendants can guarantee adequate consultation and protection of La Posta religious practices and cultural heritage....

The Defendants are excavating and desecrating Kumeyaay burials without allowing La Posta access to properly treat the exhumed remains....

The border wall has made and will continue to make Kumeyaay sacred sites that lie within and south of the Project Area inaccessible....

Times of San Diego reports on the lawsuit. 

Challenge To Anti-Discrimination Exemptions For Foster Care Agencies Moves Ahead

 In Maddonna v. U.S. Department of Health and Human Services, (D SC, Aug. 10, 2020), a South Carolina federal district court allowed a prospective foster parent to challenge state and federal exemptions from anti-discrimination requirements that allowed a Catholic foster care agency to work only with families that share the agency's religious beliefs.  Even though the case had once been dismissed, without prejudice, for lack of standing (see prior posting), the court now found standing.  The court then refused to dismiss plaintiff's Establishment Clause claim, saying in part:

Plaintiff has plausibly alleged that Defendants conveyed a message endorsing religion by allowing state-licensed, government-funded CPAs to reject prospective foster parents based on religious criteria....

“[T]he core rationale underlying the Establishment Clause is preventing ‘a fusion of governmental and religious functions[.]’” ... According to the Complaint, the system which Defendants’ “accommodations” have created “does not by its terms require that [religiously affiliated CPAs’] power be used in a religiously neutral way.” ... Rather, under the Executive Order and the HHS Waiver, religiously-affiliated CPAs’ power to accept or reject prospective foster parents is completely “standardless, calling for no reasons, findings, or reasoned conclusions.”

Christian Post reports on the decision.

Suit Claims Mask Requirement At Church Services Violates Free Exercise Protections

 A suit filed last week in a Florida state trial court contends that a Florida county's COVID-19 face covering requirement violates, among other things, the free exercise rights of plaintiff, a pastor.  The complaint (full text) in Tillis v. Manatee County, (FL Cir. Ct., filed 8/2/2020) contends that the mask requirement violates the state constitution's free exercise clause, as well as the Florida Religious Freedom Restoration Act because it:

requires both clergy members like Plaintiff and churchgoers to wear masks during service or face government civil fines and punishment.... [T]he requirement to wear a mask ... infringes upon the free exercise of Plaintiff's religion by making it more difficult for him to preach and for members of the choir at his church to sing.

The Conversation reports on the lawsuit.

11th Circuit: Ecclesiastical Abstention Doctrine Covers Church Leadership Dispute

In Eglise Baptise Bethanie De Ft. Lauderdale, Inc. v. Seminole Tribe of Florida, (11th Cir., Aug. 19, 2020) the U.S. 11th Circuit Court of Appeals affirmed a Florida federal district court's dismissal of a suit filed to settle a dispute over church leadership between the church's board of directors and the widow of its deceased pastor. One faction enlisted tribal police to evict worshipers supporting the other faction during a worship service. The court said in part:

The plaintiffs claim that the district court erred in dismissing the claims against Auguste because their claim—rather than involving ecclesiastical disputes—is merely a property dispute. That framing ignores two threshold issues. Before reaching the plaintiffs’ § 248 claim, a court would need to determine whether Auguste was the rightful successor to the church’s leadership and, if she was, whether Auguste had the authority to exclude the plaintiffs from the church’s property. Answering these questions would require us to inquire into church rules, policies, and decision-making and questions of church governance are manifestly ecclesiastical.