Early Supreme Court Review Sought In Church's Challenge To Nevada COVID-19 Limits

In July, the U.S. Supreme Court by a 5-4 vote refused to grant an injunction pending appeal to a church that was challenging Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing. (See prior posting). A Nevada federal district court had upheld the governor's Order. Arguments are scheduled next month in the church's appeal to the 9th Circuit. However, last week the church filed a petition (full text) asking the U.S. Supreme Court to grant review in the case before it is heard by the 9th Circuit. Calvary Chapel Dayton Valley v. Sisolak, (certiorari filed, 11/5/2020). ADF issued a press release announcing the filing.

Suit Challenging Louisiana COVID-19 Limits On Churches Fails

 In Spell v. Edwards, (MD LA, Nov. 10, 2020), a Louisiana federal district court dismissed a suit by a pastor challenging the state's COVID-19 limits on worship services. The court held that plaintiffs' claim for injunctive relief is moot because the specific Proclamation they challenge has expired. The court also dismissed plaintiffs' claim for damages, saying in part:

Governor Edwards's Proclamations have always treated comparable secular institutions similarly to comparable religious institutions.... 

To the extent that Plaintiffs argue that any restrictions on their right to gather violate the U.S. Constitution, they are clearly incorrect.

The Advocate reports on the decision.

Vatican Publishes Lengthy Report On Its Handling Of Abuse Accusations Against Former Cardinal McCarrick

The Vatican yesterday released a 461-page report titled The Holy See's Institutional Knowledge and Decision-Making Related to Former Cardinal Theodore Edgar McCarrick. (Full text). A statement (full text) by Vatican Secretary of State Cardinal Pietro Parolin says in part:

The Report ..., which the Secretariat of State drew up on the Pope's mandate, is published today. It is a substantial text, which has involved a careful examination of all the relevant documentation of the archives in the Holy See, at the Nunciature in Washington and in the dioceses of the United States involved in various ways. The complex investigation was also integrated with information obtained from interviews with witnesses and persons with knowledge of the facts, in order to obtain as complete a picture as possible and a more detailed and accurate knowledge of the relevant information.

We publish the Report with sorrow for the wounds that these events have caused to the victims, their families, the Church in the United States, and the Universal Church.

CBS News, summarizing details of the Report, said in part:

Pope Francis kept a promise by releasing the 461-page report, which attempts to answer a troubling question about McCarrick.

“How a man who had rumors swirling about him, about how he liked to sleep with seminarians could nevertheless rise to the top of the Catholic church,” AP religion writer Nicole Winfield said.

Charming and well-spoken in five languages, McCarrick was a leading figure in American Catholicism for years. He was the Bishop of Metuchen, Archbishop of Newark, and Cardinal of Washington D.C. Now, the 90-year-old is disgraced, defrocked, and widely viewed as a deceiver....

The report says Pope John Paul II believed McCarrick’s denial, after New York’s John Cardinal O’Connor raised red flags in a 1999 letter.

It also faults several bishops for providing incomplete information about McCarrick to the Vatican.

NYPD Settles Suit Over Religious Head Coverings In Mug Shots

 The Hill reported yesterday that the New York City Police Department has settled a lawsuit filed against it by two Muslim women last year challenging NYPD's policy of requiring persons arrested to remove their head coverings for a mug shot. (Full text of complaint in Clark v. City of New York, (SD NY, filed 3/16/2018)). The policy change agreed to in the settlement is described by the news report:

The new policy requires officers to “take all possible steps, when consistent with personal safety” to respect "privacy, rights and religious beliefs," with exceptions for weapons or contraband searches and a risk to safety, and the department will keep track of such instances for at least the next three years.

Suit In Nigeria Challenges Arabic On Currency As Violating Secular Status of Country

This Day reports on a suit heard yesterday by Nigeria's Federal High Court challenging Arabic inscriptions on Nigerian currency. Plaintiff in the suit claims that the inscriptions portray Nigeria as an Islamic state, violating its secular constitutional status. Defending the use of Arabic script, the Central Bank of Nigeria argued that it is not a symbol of Islam, but is merely used to aid non-English speakers who are literate in Arabic and use it in trade.

2nd Circuit Denies Injunction Pending Appeal Of NY Governor's Cluster Zone Limits On Houses of Worship

In Agudath Israel of America v. Cuomo, (2d Cir., Nov. 9, 2020), the U.S. 2nd Circuit Court of Appeals in a 2-1 decision refused to grant an injunction pending appeal to a group of Jewish synagogues and to the Catholic Diocese of Brooklyn in a case challenging New York Gov. Andrew Cuomo's restrictions on spots in which clusters of COVD-19 cases have broken out. (See prior posting.) The majority said in part:

The Court fully understands the impact the executive order has had on houses of worship throughout the affected zones. Nevertheless, the Appellants cannot clear the high bar necessary to obtain an injunction pending appeal. The challenged executive order establishes zones based on the severity of the COVID-19 outbreaks in different parts of New York. Within each zone, the order subjects religious services to restrictions that are similar to or, indeed, less severe than those imposed on comparable secular gatherings....

Thus, while it is true that the challenged order burdens the Appellants’ religious practices, the order is not “substantially underinclusive” given its greater or equal impact on schools, restaurants, and comparable secular public gatherings.

Judge Park dissented, saying in part:

Here, the executive order does not impose neutral public-health guidelines, like requiring masks and distancing or limiting capacity by space or time. Instead, the Governor has selected some businesses (such as news media, financial services, certain retail stores, and construction) for favorable treatment, calling them “essential,” while imposing greater restrictions on “non-essential” activities and religious worship. Such targeting of religion is subject to strict scrutiny.

Hamodia reports on the decision.

Certiorari Denied In Challenge To "So Help Me God" In Citizenship Oath

 Yesterday the United States Supreme Court denied review in Perrier-Bilbo v. United States, (Docket No. 20-349, certiorari denied 11/9/2020). (Order List.) In the case, the U.S. 1st Circuit Court of Appeals rejected constitutional challenges to the inclusion of "so help me God" at the end of the oath of allegiance administered at naturalization ceremonies. (See prior posting.)  Friendly Atheist reports on the Supreme Court's action.

Another Chapter In Challenge To Navy Chaplain Selection Procedures

In In re Navy Chaplaincy, (DC Cir., Nov. 6, 2020), the D.C. Circuit Court of Appeals issued the latest decision in a controversy that has been in litigation for over twenty years.  In the case, non-liturgical Protestant chaplains allege discrimination against them by selection boards that control promotions and early retirements of Navy chaplains. The court said:

the district court made no mistake in granting summary judgment for the Navy on the Plaintiffs’ various First Amendment challenges to its selection board policies. See Chaplaincy, 323 F. Supp. 3d at 35-36, 55-56. With regard to the claims that certain selection board policies violated the Establishment Clause, the Plaintiffs had to show each policy had an unconstitutional effect; that is, the Plaintiffs had to show “the selection policies appear[ed] to endorse religion in the eyes of a reasonable observer.”... To prove an endorsement with statistics, the Plaintiffs had to show a stark disparity in outcomes during the relevant period ..., but the statistics they offered came nowhere close to doing so.

However the court remanded for further proceedings a claim by a chaplain endorsing agency, Associated Gospel Churches, of injury because of the Navy's policy. The trial court had dismissed the claim for lack of standing. The Court of Appeals said in part:

On appeal, AGC argues it has standing in its own right to challenge the Navy’s faith-neutral accession goals. We agree. AGC alleged the Navy’s accession goals resulted in AGC’s chaplain candidates entering the Navy at a significantly lower rate than they otherwise would have. AGC further alleged, because it relies upon its chaplains for financial support, it loses money when its ability to find placements for its candidates is hindered. AGC also alleged its low rate of success placing candidates in the Navy tarnished its reputation. These allegations satisfy all three elements of standing. We express no opinion on the sufficiency of the allegations in any other respect.

The court also reversed and remanded claims that had been dismissed as untimely, ordering the trial court to consider whether equitable tolling applies. Finally, the court held:

Allowing chaplains to sit on chaplain selection boards does not create a de jure denominational preference and does not create excessive entanglement.

Slam Poetry Book In Curriculum Upheld

In Coble v. Lake Norman Charter School, Inc., (WD NC, Nov. 6, 2020), a North Carolina federal district court refused to issue a temporary restraining order to prevent a public charter school from including The Poet X in its ninth-grade language arts curriculum. Plaintiffs claim that inclusion of the book violates the Establishment Clause as well as their free exercise rights. The court said in part:

The sincerity of Plaintiffs’ religious objections to The Poet X is not disputed, nor is the fact that the book deeply offends Plaintiffs. Even accepting, however, that the work is antithetical to the particular Christian beliefs espoused by Plaintiffs, its inclusion in the high school curriculum alone does not violate the Establishment Clause...

The issue is not whether The Poet X embodies anti-Christian elements; the Court assumes that it does. Instead, the issue is whether its selection and retention by school officials “communicat[es] a message of government endorsement” of those elements....

Similarly, inclusion of The Poet X as representative of a particular literary genre (slam poetry / verse novel) neither religiously inhibits nor instills, but simply informs and educates, students on a particular social outlook forged in the crucible of Afro-Latinx urban life. To include the work in the curriculum, without further evidence of the school’s endorsement, no more communicates governmental endorsement of the author’s or characters’ religious views than to assign Paradise Lost, Pilgrim’s Progress, or The Divine Comedy conveys endorsement or approval of Milton’s, Bunyan’s, or Dante’s Christianity....

Recent Articles of Interest

From SSRN:

• Marcello Neri, Pope Francis’ Constitutionalism and Catholic Politics, (University of Milano-Bicocca School of Law Research Paper No. 20-04 (2020).
• J. Mark Ramseyer, Contracting for Compassion in Japanese Buddhism, (Harvard Law School John M. Olin Center Discussion Paper No. 1039, 2020).
• Barry Winston Bussey, Contagion: Government Fear of Religion during the COVID-19 Crisis, (Revista General de Derecho Canónico y Derecho Eclesiástico del Estado, 54 (2020)).
• Mahdi Attar Kashani, The Concept of Right and Its Differences With Similar Concepts in Islamic Jurisprudence, (September 12, 2020).
• Stephen Cranney, Are Christians More Likely to Invoke RFRA—and Win—than Other Religions since Hobby Lobby?, (Mercer Law Review Forthcoming).
• Brian Miller, Religion and Local Power, (Mercer Law Review Forthcoming).
• David Kenny, The Virtues of Unprincipled Constitutional Compromises: Church and State in the Irish Constitution, (European Constitutional Law Review (Forthcoming)).
• Afrasiab Ahmed Rana, Essentials of a Valid Contract: A Comparative Study of Sighah in Islamic Law and the Agreement in the Contract Act, 1872, (November 1, 2020).

UAE Liberalizes Personal Status and Penal Laws

The United Arab Emirates today announced liberalizing changes in its Sharia-based personal laws. The Hill, The National, and Emirates News Agency all report on the changes made by Presidential Decree to the Personal Status, Civil Transactions, Penal Code and Criminal Procedural laws.  The changes, many involving protections for foreigners living in the UAE, take effect immediately. They include:

• Repeal of the provisions allowing more lenient sentences for so-called "honor crimes".
• Divorces of foreigners who were married abroad will be governed by the laws of their home country instead of Sharia law.
• The law of a person's home country, rather than Sharia law, will govern division of assets on death where no will is left.
• Attempted suicide is decriminalized.
• "Good Samaritans" who intervene to help another person will not be held accountable for the person's injury or death.
• More severe punishments are set for harassment of women.
• Death penalty is prescribed for rape of a minor or of someone of limited mental capacity.
• Alcohol consumption in authorized areas by adults who do not have a license to consume liquor is decriminalized. Typically Muslims have been denied a license.
• Cohabitation by unmarried couples is decriminalized.
• Translators will be provided in courts for defendants and witnesses, and evidence involving indecent acts will not be made public.

Suit Against Trump For Misleading Christians Is Dismissed For Lack of Standing

In Kelly v. Trump, (Del. Chancery, Nov. 2, 2020), a Delaware Chancery Court Master recommended dismissing as legally frivolous a suit against President Donald Trump alleging that he violated plaintiff's free exercise and Establishment Clause rights. The court said that plaintiff "has not shown an actual or concrete injury to her caused by Trump’s conduct....  Her contentions are too remote and vague to be actionable."  The court described plaintiff's allegations in part as follows:

Kelly’s main theory of her case is that Trump creates the illusion of being a devout Christian, while engaging in acts that Kelly contends are against the main tenets of Christianity. She claims that his actions substantially burden and injure her “free exercise of religion”... by [his] increased threat of government sponsored religious persecution.... Kelly alleges that ... he is misleading people, deceiving them to sin, and dooming them to hell. The primary harm Kelly claims is that, because Trump is leading people to hell, Kelly will not be able to love them for eternity. She also alleges that she is persecuted ... because of Trump’s support for one religious belief, and suppression of others....

Court Refuses Stay of Order On Creche Display

In Woodring v. Jackson County, Indiana, (SD IN, Nov. 3, 2020), an Indiana federal district court refused to stay its final judgment pending appeal in a case challenging the annual display of a creche on the county courthouse lawn.  The court said in part:

Because the crèche straddles the sidewalk subdividing the lawn and the more-secular figures are placed on the periphery, the venerable magi and hallowed manger share center stage. Id. Since the primary focus of the display is a celebration of the birth of Jesus Christ, a reasonable observer would believe that Jackson County was endorsing a particular religion, that is, Christianity. Id. Moreover, the display—which had consisted solely of the Nativity scene for almost twenty years—expanded to include the secular Christmas figures only after Jackson County received a letter from the Freedom from Religion Foundation questioning whether the display was constitutional.... A reasonable observer aware of this "history and context" would view the addition of the ancillary figures as a reactionary effort to obscure the display's religious essence.

(See prior related posting.)

10th Circuit: Plaintiff Lacks Standing To Challenge Kansas Vaccination Requriement

 In Baker v. USD 229 Blue Valley, (10th Cir., Nov. 3, 2020), the U.S. 10th Circuit Court of Appeals dismissed for lack of standing a mother's lawsuit challenging Kansas' vaccination law which requires school children to be vaccinated, but allows religious exemptions. Plaintiff's son, S.F.B., was granted a religious exemption. The court rejected plaintiff's claim that nevertheless she suffered injury. The court said in part:

Ms. Baker’s unusual standing theory falls outside any recognized notion of injury based on the potential enforcement of a law. She argues the District misapplied Kansas law in granting the religious exemption to S.F.B. in response to the Bakers’ statement. She asserts that if the District would apply the law correctly, it would revoke the religious exemption, injuring her and S.F.B. From this she contends there is a credible injury in fact....

First, we evaluate Ms. Baker’s injury argument that the District may revoke S.F.B.’s religious exemption because Kansas law compels that result. We find that Ms. Baker has not shown a concrete, imminent, and non-speculative injury in fact.

Second, we consider Ms. Baker’s contention that Kansas law inhibits her from exercising certain “options” for S.F.B. including home schooling and child care. We reject this theory because Ms. Baker alleges only a “some day” intention to exercise these options that is insufficient to demonstrate an injury in fact.

New Developments In the Abortion Rights Controversy

The past few days have brought several developments in the battle over abortion rights. In Colorado, an Initiative measure on the ballot that would have banned abortions after 22 weeks of gestation was defeated 59% to 41% (89% of precincts reporting). In Louisiana voters approved by a margin of 62% to 38% an amendment to the state constitution providing "To protect human life, nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion."

Meanwhile last week, the Alabama Supreme Court in Magers v. Alabama Women's Center Reproductive Alternatives, LLC, (LA Sup. Ct., Oct. 30, 2020), dismissed a wrongful death action brought by the father of an aborted 6-week old fetus against a clinic that provided the mother with a pill to induce a medication abortion. The trial court dismissed the suit, and the state Supreme Court dismissed because appellant did not comply with the procedural requirements for the type of brief that needs to be submitted for an appeal. However Justice Mitchell, joined by 3 other justices wrote concurring opinion that said in part:

I write separately, however, to state my view that Roe v. Wade ... and Planned Parenthood of Southeastern Pennsylvania v. Casey ... are due to be overruled by the United States Supreme Court....

First, the central holding of Roe -- that there is a constitutional right to have an abortion based on a judicially created trimester framework -- has no grounding in the text of the United States Constitution....

Second, the right to have an abortion has no foundation "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

[Thanks to Scott Mange for the lead as to Alabama.]

Supreme Court Will Hear Oral Arguments Today In Catholic Foster Care Agency Case

Today, the U.S. Supreme Court will hear oral arguments in Fulton v. City of Philadelphia. 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 and briefs filed in the case, as well as to commentary on the case, are at the SCOTUSblog case page. When the transcript and/or recording of oral arguments become available later today, I will post a link to them.

UPDATE: Here is the transcript of the oral arguments, and here is the audio of the arguments.

Religious Voter Trends To Watch In Today's Election

A Religion News Service analysis suggests 7 religious voter trends to watch for as election results begin to be reported today: Black Protestant turnout; Muslim turnout in Michigan; Jewish turnout in Pennsylvania and Florida; Shifts among white mainliners and Catholics in the Rust Belt; Small but important shifts among Hispanic and Latino religious voters; Any movement among white evangelicals; and Latter-day Saints in Arizona.

Suit Filed Over School's Ban On Religious Messages On COVID-19 Masks

Suit was filed yesterday in a Mississippi federal district court challenging the policy of a Mississippi elementary school that prohibits display of religious (as well as political and sexual) messages on masks worn during the COVID-19 pandemic. The complaint (full text) in L.B. v. Simpson County School District, (SD MS, filed 11/2/2020), alleges that school officials would not allow a third-grade student to wear her mask that displayed the phrase "Jesus Loves Me". The suit claims this amounts to violation of the free speech, free exercise and due process clauses. ADF issued a press release announcing the filing of the lawsuit.

New Survey On Attitudes Toward LGBT Rights

The Public Religion Research Institute yesterday released polling results on the extent of support in the U.S. for same-sex marriage and LGBT anti-discrimination laws. The study finds that majorities of Americans favor allowing same-sex marriage, oppose allowing religiously affiliated agencies that receive taxpayer funding to refuse to accept qualified same-sex couples as foster parents, oppose religiously-based refusals to serve gays and lesbians, and favor allowing transgender individuals to serve in the armed forces. When examined by religious preference, only white evangelical Protestants had majorities at odds with the broader results.

Britain's Equality Commission Cites Labour Party For Antisemitism

Last week, Britain's Equality and Human Rights Commission (EHRC) issued a 130-page report (full text) on its investigation into antisemitism in Britain's Labour Party. According to the EHRC's Announcement of the report, the agency has served the Labour Party with an "unlawful act" notice. (Text of Notice is at pg. 102 of the report). According to the announcement:

The investigation has identified serious failings in the Labour Party leadership in addressing antisemitism and an inadequate process for handling antisemitism complaints.

The Party is responsible for three breaches of the Equality Act (2010) relating to:

• political interference in antisemitism complaints

• failure to provide adequate training to those handling antisemitism complaints

• harassment

The equality body’s analysis points to a culture within the Party which, at best, did not do enough to prevent antisemitism and, at worst, could be seen to accept it....

The Labour Party has until 10 December to draft an action plan to implement the recommendations, which is legally enforceable by the court if not fulfilled. 

The EHRC Chair says that the Labour Party's new leadership has committed to fully implementing  EHRC's recommendations. [Thanks to Law & Religion UK for the lead.]