Court Enjoins NY Ban On Adoption Agencies Discriminating Against Gay Or Unmarried Couples

In New Hope Family Services, Inc. v. Poole, (ND NY, Oct. 5, 2020), a New York federal district court, hearing a case on remand from the Second Circuit (see prior posting), issued a preliminary injunction against enforcement of a regulation of New York's Office of Children and Family Services. 18 NYCRR §421.3 bars discrimination based on sexual orientation or marital status in furnishing of adoption services. The regulation was challenged by a Christian adoption agency that refuses to place children with unmarried or same-sex couples.  The court said in part:

[T]he totality of the evidence indicates that section 421.3(d), as promulgated and enforced by OCFS, is not neutral and appears to be based on some hostility towards New Hope's religious beliefs. In light of the Second Circuit's all but explicit direction, the Court finds that the totality of the evidence weighs in favor of a finding of hostility. In finding hostility, the Court relies on a number of factors that the Circuit noted in its decision.....

The Court finds that by attempting to force New Hope to say that it is in a child's best interests to be placed with an unmarried or same sex couple, despite New Hope's sincere disagreement with that statement, OCFS is attempting to compel speech. Although OCFS argues that New Hope is not compelled to speak because there is an alternative, closure is surely a harsh alternative for New Hope and, as discussed below, it is not the most narrowly tailored means of advancing the state's compelling interests....

Washington Times reports on the decision.

Satanic Temple Sues Ad Agency For Refusing Abortion Billboards [UPDATED]

The Satanic Temple ("TST") announced last week that it has filed suit against Lamar Billboard Company for religious discrimination and breach of contract after the company refused to put up billboards promoting The Satanic Temple's "religious abortion ritual."  TST said in part:

Sincere performance of this ritual exempts members from complying with many state regulations, such as mandatory waiting periods and compulsory counseling, that are not medically necessary and violate TST's religious beliefs.

TST wanted to place billboards near eight crisis pregnancy centers in Arkansas and Louisiana. TST puzzlingly said:

TST claims that Lamar's actions violate the Accounting and Corporate Regulatory Authority's (ACRA's) nationally-applicable laws that prohibit religious discrimination.

ACRA appears to be an agency of the government of Singapore.

UPDATE: Here is the full text of the complaint in The Satanic Temple, Inc. v. Lamar Advertising of Louisiana, LLC, (AR Cir. Ct., filed 9/27/2020).  The complaint alleges, among other things, violation of the Arkansas Civil Rights Act, abbreviated ACRA. Whoever wrote TST's press release apparently Googled ACRA and came up with Accounting and Corporate Regulatory Authority. [Thanks to Eugene Volokh via Religionlaw for access to the complaint.]

Cert. Denied In Appeal By Kim Davis Who Refused To Issue Same-Sex Marriage Licenses

The U.S. Supreme Court today denied certiorari in Davis v. Ermold, the case involving former Kentucky county clerk Kim Davis who refused on religious grounds to issue marriage licenses to same-sex couples.  Justice Thomas, joined by Justice Alito, concurred in the denial of review, but issued a four page statement critical of the Court's same-sex marriage precedent. (Order List, scroll to page 55.) In the case, the U.S. 6th Circuit Court of Appeals held that Davis may be sued in her individual capacity and is not entitled to qualified immunity. (See prior posting). Justice Thomas wrote in part:

In Obergefell v. Hodges ... the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text. Several Members of the Court noted that the Court’s decision would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman. If the States had been allowed to resolve this question through legislation, they could have included accommodations for those who hold these religious beliefs.... The Court, however, bypassed that democratic process. Worse still, though it briefly acknowledged that those with sincerely held religious objections to same-sex marriage are often “decent and honorable,” ... the Court went on to suggest that those beliefs espoused a bigoted worldview....

The Hill reports on the case.

Recent Articles of Interest

From SSRN:

• Paul Horwitz, A Few Grains of Incense: Law, Religion, and Politics from the Perspective of the "Christian" and "Pagan" Dispensations,  (Journal of Catholic Legal Studies, forthcoming).
• Nabeela Siddiqui, On Crossroads with Constitutional Morality: The (Un)tamed ERP Test, (August 16, 2020).
• Beatrice Jessie Hill, The Geography of Abortion Rights,  (Georgetown Law Journal, (forthcoming, 2021)).
• Shahbaz Ahmad Cheema, Distribution of Inheritance under Islamic Law: An Appraisal of Online Inheritance Calculators, (August 16, 2020).

From SmartCILP:

• Patricia M. Muhammad, The Trans-Atlantic Slave Trade: European Slaving Corporations, the Papacy and the Issue of Reparations, 26 Willamette Journal of International Law& Dispute Resolution 173-248 (2019).

Five Cases of Interest Already On Supreme Court's Docket As Term Opens

The U.S. Supreme Court's October Term opens today with five religious liberty-related cases already on the docket from grants of review last term. The cases are:

Tanzin v. Tanvir: Availability of money damages in suits under the Religious Freedom Restoration Act. The suit involves claims by three Muslims who allege that they were placed on the no-fly list as retaliation for their refusal to act as government informants. (See prior posting.) Links to pleadings in the case are at the SCOTUSblog case page. The case is set for argument on Oct. 6.

Fulton v. City of Philadelphia, Pennsylvania: In the case,  the U.S. 3rd Circuit Court of Appeals upheld against 1st Amendment challenges the City of Philadelphia's policy of refusing to contract with foster care agencies, such as Catholic Social Services, that will not place children with same-sex married couples. (See prior posting.) Links to pleadings in the case are at the SCOTUSblog case page. The case will be argued on Nov. 4.

Republic of Hungary v. Simon and Federal Republic of Germany v. Philipp: Whether claims under the Foreign Sovereign Immunities Act may be brought in these cases of taking of Jewish property during World War II.  (SCOTUS blog case pages: Simon,   Philipp. The cases will be argued Dec. 7.

Uzuegbunam v. Preczewski: Challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature on campus. (See prior posting.) (SCOTUSbog case page.) Argument date is not yet set.

The Court may announce additional grants of review later today.

9th Circuit Upholds California's COVID Restrictions On Religious Services

 In Harvest Rock Church, Inc. v. Newsom, (9th Cir., Oct. 1, 2020), the U.S. 9th Circuit Court of Appeals in a 2-1 decision refused to issue a preliminary injunction against Governor Gavin Newsom’s COVID-19 Orders that restrict in-person worship services. The majority said in part: 

The evidence that was before the district court does not support Harvest Rock’s arguments that the Orders accord comparable secular activity more favorable treatment than religious activity. The Orders apply the same restrictions to worship services as they do to other indoor congregate events, such as lectures and movie theaters....

Harvest Rock also contends that the Governor failed to provide a rationale for the more lenient treatment of certain secular activities, such as shopping in a large store. However, the Governor offered the declaration of an expert, Dr. James Watt, in support of the claim that the risk of COVID-19 is elevated in indoor congregate activities, including in-person worship services.

Judge O'Scannlain dissented, saying in part:

There is no doubt that California’s COVID-19 scheme ... imposes direct and severe burdens on religious practice within the State. And where a State imposes such burdens through measures that are not “neutral and of general applicability,” its actions must survive strict scrutiny.... Because California’s COVID-19 regulations patently disfavor religious practice when compared to analogous secular activities, I believe that the church is quite likely indeed to succeed on the merits of its challenge to such regulations.

Los Angeles Times reports on the decision.

Two Catholic Dioceses File For Chapter 11 Bankruptcy Reorganzation

In the face of sex abuse lawsuits filed after states enacted legislation reviving previously time-barred claims, on Oct. 1 two more Catholic dioceses filed for bankruptcy reorganization under Chapter 11. 

The Diocese of Rockville Centre, New York (covering Long Island) issued a press release and a letter from Bishop John Barres. The letter said in part:

[I]n the year since the passage of the Child Victims Act, more than 200 lawsuits alleging sexual abuse have been filed against the Diocese of Rockville Centre. What became clear is that the Diocese could not continue to carry out its spiritual, charitable and educational missions while also having to shoulder the increasingly heavy burden of litigation expenses associated with these cases.

Filing for Chapter 11, we believe, is the only way for the Diocese to ensure a fair and equitable outcome for everyone involved.... 

During this period of restructuring, most Diocesan operations and ministries will continue without interruption.... 

Since the parishes and schools of the Diocese of Rockville Centre are separate legal entities, they are not included in this Chapter 11 filing. But it is also the case that after Chapter 11, the Diocese will have fewer financial resources to help struggling schools and parishes.

CNN reports on the filing, noting that this is the largest U.S. diocese to file for bankruptcy.

The Diocese of Camden, New Jersey issued a letter from Bishop Dennis Sullivan as well as an FAQ document and a summary of developments. The Bishop's letter reads in part:

The effects of the pandemic, which have curtailed our revenue and deeply impacted our parishioners and neighbors, were further compounded by the over $8 million we have paid out this year through the New Jersey Independent Victims Compensation Program to victims of clergy abuse, money which we have had to borrow. Additionally, the recent repeal of the statute of limitations has resulted in over fifty lawsuits being filed against the diocese involving long-ago claims of abuse. If it were just the pandemic, or just the costs of the Victims Compensation Program, we could likely weather the financial impact; however, the combination of these factors has made that impracticable. Because of this, today I announce that the Diocese of Camden is filing for reorganization under Chapter 11 of the United States Bankruptcy Code.

Bloomberg News reports on the filing.

Secretary Pompeo Speaks At Vatican Conference On Defending Religious Freedom

Earlier this week (Sept. 30), Secretary of State Mike Pompeo spoke at the U.S. Embassy to the Vatican at the "Holy See Symposium on Advancing and Defending Religious Freedom Through Diplomacy." His speech (full text and video) was titled Moral Witness and Religious Freedom. He said in part:

It was important for me to attend this year, because the mission of defending human dignity – and religious freedom in particular – remains at the core of American foreign policy.

That’s because it’s at the heart of the American experiment.  Our founders regarded religious freedom as an absolutely essential right of mankind and central to our founding....

But sadly, authoritarian regimes, terrorists, and even secularists, free societies are – in their different ways – trampling religious freedom all around the world.

Vast swathes of humanity live in countries where religious freedom is restricted, from places like Iran, to Nigeria, and to Cuba, and beyond....

Nowhere, however – nowhere is religious freedom under assault more than it is inside of China today.  That’s because, as with all communist regimes, the Chinese Communist Party deems itself the ultimate moral authority.

Alabama's Voter Registration Oath Is Challenged

Yesterday four Alabama residents filed suit challenging language in Alabama's voter registration form. The oath in the form ends with "so help me God." No secular alternative is available.  The complaint (full text) in Cragun v. Merrill, (ND AL, filed 10/01/2020) contends that the absence of a secular alternative violates the Establishment, Free Exercise, Free Speech and Equal Protection Clauses. Freedom From Religion Foundation issued a press release announcing the filing of the lawsuit.

Denial of Church's Sewer Extension Application Did Not Violate RLUIPA or Constitution

 In Canaan Christian Church v. Montgomery County, Maryland, (D MD, Sept. 30, 2020), a Maryland federal district court, in a 54-page opinion, rejected challenges to the county's refusal to extend public sewer lines to a site on which plaintiffs wished to build a 2000-seat church. The court rejected plaintiff's "substantial burden" claim under RLUIPA, finding that the church had no reasonable expectation that the sewer extension would be approved.  The court also rejected RLUIPA "unreasonable limits" and "unequal terms" claims. It went on to reject equal protection and free exercise challenges.

No Fault Divorce Does Not Infringe Husband's Free Exercise Rights

 In Melki v. Melki,(MD App., Sept. 29, 2020), the Maryland Court of Special Appeals rejected a husband's claim that granting his wife a no-fault divorce violates his free exercise rights. In addition to rejecting jurisdictional and contract clause challenges, the court said in part:

Because the Orthodox faith does not permit divorces absent fault, Husband claims that the dissolution of the marriage on the grounds of a twelve-month separation would unconstitutionally force him to commit a mortal sin according to his religion.... Because a trial court granting a divorce merely dissolves a civil contract between the spouses, courts universally hold that no-fault divorce statutes do not infringe on the right to the free exercise of religion, even if a spouse’s religious beliefs prohibit no-fault divorces....

 Husband "still has [his] constitutional prerogative to believe that in the eyes of God, [he] and [his] estranged [wife] are ecclesiastically wedded as one...." ... In fact, it might well violate the Establishment Clause of the First Amendment to compel Wife to remain married to Husband because of Husband’s religious beliefs, for the court would then be preferring one spouse’s beliefs over the other spouse’s.

Court Temporarily Halts Enforcement of Tennessee's Mandated Abortion Reversal Disclosures

 In Planned Parenthood of  Tennessee and North Mississippi v. Slatery, (D TN, Sept. 29, 2020), a Tennessee federal district court issued a temporary restraining order barring enforcement of a Tennessee law scheduled to take effect Oct. 1 which requires abortion providers to tell patients that medication abortions, once started, can be reversed. Plaintiffs claim that this violates their 1st Amendment rights by forcing them to provide patients with inaccurate information. In temporarily restraining enforcement of the law, the court said in part:

The Court is unable to assess fully the competing expert opinions as to whether the mandated message is “truthful and not misleading,” in the absence of the experts’ testimony, adduced through direct and cross examination. That assessment must await the preliminary injunction hearing....

Nevertheless, the Court does not need to await the hearing to determine that another aspect of the mandated message is “misleading.” The statute gives the Department of Health a period of up to 90 days in which to publish information, on its website and in printed materials, about the possibility of reversing the effects of a chemical abortion.... Section 218 requires abortion providers to tell patients that “information on and assistance with reversing the effects of a chemical abortion” is available on the Department of Health website, when in fact, such information and assistance may not be available.

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

Vermont's Town Tuition Program Challenged

In Vermont, school districts that do not operate their own high schools must pay tuition costs for students in their district to attend another public high school or an approved private high school. Suit was filed this week in a Vermont federal district court challenging the exclusion of private religious schools from participating in this program, alleging that the exclusion violates free exercise, free speech and equal protection rights.  The complaint (full text) in A.H. v. French, (D VT, filed 9/28/2020) alleges in part:

Denying a public benefit based on the religious status of a child's school penalizes families who choose to exercise their faith by sending their children to religious schools. The school district's denial also discriminates against religious private schools because although the school board categorically refuses to fund tuition to religious schools, it regularly provides such funds to secular private schools. This discrimination violates the Free Exercise Clause's neutrality principle.

ADF issued a press release announcing the filing of the lawsuit.

Preliminary Injunction Denied In Suit Targeting Colorado's COVID-19 Limits On Size of Religious Gatherings

On Monday, a challenge to Colorado's COVID-19 orders was filed.  In a 98-page complaint, a religious conference center and affiliated Bible college claim that Colorado's limitation on the number of persons who can attend in-person religious services violates its 1st and 14th Amendment rights. The complaint (full text) in Andrew Wommack Ministries, Inc. v. Polis, (D CO, filed 9/28/2020), alleges unconstitutional discrimination between religious gatherings and non-religious gatherings, as well as between the Ministries' religious and nonreligious gatherings in the same facilities, giving examples such as:

178. Under the Governor’s Orders, AWMI’s volunteers may provide nonreligious counseling, social services, and other necessities of life for women constituents of Life Network’s Colorado Springs Pregnancy Center and Choices Pregnancy Center may be administered in unlimited numbers, provided only that social distancing is satisfied.

179. But, if volunteers associated with AWMI and Charis Bible College students transition from providing these women with counseling, social services, food, clothing, and other necessities of life to providing them spiritual counseling, spiritual food in the form of communion, or otherwise transitions to a religious worship service with the same women in the same room, the Governor’s Orders would automatically subject them to criminal penalties for hosting an impermissible worship service if there is more than 175 women in the room.

The complaint says that speedy relief is required:

4. The Governor’s Orders interfere with and place a cloud of potential criminal and civil legal action over AWMI’s upcoming Pastor’s Conference scheduled to begin at 7:00 PM on October 5, 2020. In addition to outside pastors and ministers who are invited to the conference, attendance at the conference is a required part of the education program for all 652 students at Charis Bible College.

Liberty Counsel issued a press release announcing the filing of the lawsuit.

On Tuesday, in a 7-page order (full text), a Colorado federal district judge denied a preliminary injunction, pointing out:

United States District Judge Raymond Moore recently rejected Plaintiff’s arguments in High Plains Harvest Church v. Polis.... Additionally, the Seventh Circuit recently rejected a church’s argument that similar public health laws unconstitutionally favored secular activity

Plaintiff immediately filed a Notice of Appeal.

Recent Virginia Anti-Discrimination Statutes Challenged

 Two lawsuits filed this week challenge two recently enacted Virginia statutes-- SB 868 prohibiting discrimination in public accommodations and employment, and HB 1429 that prohibits discrimination against transgender individuals in health insurance policies.

The complaint (full text) in Calvary Road Baptist Church v. Herring, (VA Cir. Ct., filed 9/28/2020) was filed by churches, Christian schools and pregnancy centers and alleges that the laws require plaintiffs to hire employees, provide insurance coverage and offer services that violate their religious beliefs on marriage, sexuality and gender.

The complaint (full text) in Updegrove v. Herring, (ED VA, filed 9/28/2020) was filed by a photographer who will "not provide wedding photography that celebrates any marriage not between one man and one woman, such as same-sex, polygamous, or open engagements or marriages, because [he] believes that God created marriage to be an exclusive union between one man and one woman."

ADF issued a press release announcing the filing of the lawsuits.

Recent Articles of Interest

From SSRN:

• Yuval Shany, The Road Taken: ICCPR and discriminatory restrictions on religious freedom, (Harvard Human Rights Journal (forthcoming in 2021)).
• Anthony Aladekomo, Analysis of Intersection between Law and Religion, (July 13, 2020).
• Audra Savage, The Religion of Race: The Supreme Court as Priests of Racial Politics, (Utah Law Review, Forthcoming).
• Christopher C. Lund, Reconsidering Thornton v. Caldor,  (Washington University Law Review, Vol. 97, p. 1687, 2020 (symposium)).
• Hiroshi Fukurai, The Decoupling of the Nation and the State: Constitutionalizing Transnational Nationhood, Cross-Border Connectivity, Diaspora, and 'National' Identity-Affiliation in Asia and Beyond, (Asian-Pacific Law & Policy Journal, Forthcoming).
• Kareem Olatoye &Abubakri Olakulehin Yekini, Islamic Law in Southern Nigerian Courts: Constitutional and Conflict of Laws Perspectives, ((2019) 6 Benin Journal of Public Law).
• Steven Semeraro, We’re All Originalists Now . . . Or Are We?: Bostock’s Misperceived Quest to Distinguish Title VII’s Meaning From the Public’s Expectations, (Hofstra Law Review, Forthcoming).
• Justin Driver, Freedom of Expression within the Schoolhouse Gate, (Arkansas Law Review, Vol. 73, No. 1, 2020).
• Elyssa Spitzer, Pregnancy's Risks and the Health Exception in Abortion Jurisprudence, (Georgetown Journal of Gender and the Law, Forthcoming).
• Ediberto Roman & Ernesto Sagás, Fear and Loathing in Trump's America: The Consequences of Inspiring Hate and Violence, (Florida International University Legal Studies Research Paper No. 20-20 (2020).
• Jeffrey A. Redding, Review of Damian A. Gonzalez Salzberg, Sexuality and Transsexuality Under the European Convention on Human Rights: A Queer Reading of Human Rights Law, (83 Modern Law Review 702-07 (2020)).

From SmartCILP:

• Xavier Bothwell & Anthony Peirson, International Standards for Protection of Religious Freedom, 23 Annual Survey of International & Comparative Law 49-78 (2018).

Parents' Suit Against Christian High School Dismissed On Ecclesiastical Abstention Grounds

 In In re Prince of Peace School, (TX App., Sept. 23, 2020), a Texas state appellate court dismissed on ecclesiastical abstention grounds a suit by parents whose children were expelled from a Lutheran high school after the parents accused school personnel of harassing and bullying their children in connection with disciplinary issues. The court said in part:

Parents’ claims are premised on allegations that Prince of Peace failed to hire qualified staff and appropriately supervise its staff’s interactions with Students, including by failing to report suspected abuse of Students by its staff. Defense of these claims rests on Prince of Peace’s internal and religiously-informed policies and code of conduct. Judicial resolution of the claims would thus require impermissible intrusion in Prince of Peace’s management of these matters.

Trump Sends Message To "The Return"

 As reported by CBN News, thousands of Christians gathered on the National Mall today for The Return: National and Global Day of Prayer and Repentance.  The event was organized by Messianic Jewish pastor Jonathan Cahn and featured numerous Christian speakers, including Anne Graham Lotz, daughter of evangelist Billy Graham. (CBN News). President Trump sent a written message (full text) to the event, which read in part:

On this inaugural National Day of Prayer and Return, the First Lady and I join millions of Christians here in the United States and around the world in prayer, as we turn our hearts to our Lord and Savior....

The trials and tribulations the American people have faced over the past several months have been great.  Yet, as we have seen time and again, the resolve of our citizenry—fortified by our faith in God—has guided us through these hardships and helped to unite us as one Nation under God.

11th Circuit Grants En Banc Review In Case of Religious Statement By Juror

As reported by Florida News Service, yesterday the U.S. 11th Circuit Court of Appeals granted en banc review (full text of order) in United States v. Corrine Brown. In the case, a 3-judge panel, in a 2-1 decision, affirmed the trial court's dismissal of a juror in the fraud case of former Florida representative Corrine Brown. At issue was a statement made by one of the jurors during deliberations that "A Higher Being told me Corrine Brown was Not Guilty on all charges." (See prior posting.)

EEOC Sues On Behalf of Seventh Day Adventist

 The EEOC announced yesterday that it has filed suit in a Texas federal district court against Quest Diagnostics for refusing to accommodate the religious beliefs of a long-time employee. The EEOC said in part:

[T]he employee, a phlebotomist, is a practicing Seventh-day Adventist who began working for Quest Diagnostics in 2008. The phlebotomist’s religious beliefs prevent her from working on her Sabbath from sundown on Friday to sundown on Saturday. Quest honored her request for religious accommodation not to work on her Sabbath for the first 10 years of her employment. But in her 11th year with the company, Quest told her it would no longer accommodate her. After the revocation of her accommodation, she was forced to call “out” on each Saturday shift she was scheduled to work until she was ultimately fired by Quest.