AP Report Critical of Catholic Church's Participation In Paycheck Protection Program

AP yesterday published an investigative report critical of the Catholic Church's participation in the COVID-19 Paycheck Protection Program.  The report says in part:

As the pandemic began to unfold, scores of Catholic dioceses across the U.S. received aid through the Paycheck Protection Program while sitting on well over $10 billion in cash, short-term investments or other available funds....

Overall, the nation’s nearly 200 dioceses, where bishops and cardinals govern, and other Catholic institutions received at least $3 billion. That makes the Roman Catholic Church perhaps the biggest beneficiary of the paycheck program....

Church officials have said their employees were as worthy of help as workers at Main Street businesses, and that without it they would have had to slash jobs and curtail their charitable mission as demand for food pantries and social services spiked. They point out the program’s rules didn’t require them to exhaust their stores of cash and other funds before applying....

By using a special exemption that the church lobbied to include in the paycheck program, Catholic entities amassed at least $3 billion — roughly the same as the combined total of recipients from the other faiths that rounded out the top five.... Baptist, Lutheran, Methodist and Jewish faith-based recipients also totaled at least $3 billion. Catholics account for about a fifth of the U.S. religious population while members of Protestant and Jewish denominations are nearly half....

Imam Sues Alabama Over Exclusion of Clergy From Execution Chamber

Yesterday a Muslim imam filed suit in an Alabama federal district court challenging prison rules that preclude him from being present in the execution chamber with inmates sentenced to death. The complaint (full text) in Maisonet v. Dunn, (SD AL, filed 2/4/2021), alleges that a change in execution policy in 2019 that now excludes all religious advisors from the execution chamber was adopted

for the purpose of excluding non-Christian religious advisors and prohibiting condemned men of non-Christian faiths from requesting their religious advisors to accompany them in the execution chamber.

The suit contends that the execution policy violates the Free Exercise and Establishment Clauses as well as the Alabama Constitution's Religious Freedom Amendment.

Prior to 2019, prison rules required that the prison chaplain-- consistently a mainline Protestant clergyman-- be present in the execution chamber.  That practice was challenged and litigated up to the U.S. Supreme Court, which in 2019 allowed the Alabama execution of a Muslim inmate to proceed without reaching the merits of the challenge to that practice. (See prior posting.) Subsequently in 2019 the Supreme Court ruled against disparate treatment of non-Christian inmates facing execution in a Texas case. (See prior posting.) Courthouse News Service reports on the lawsuit.

2020 Report on Hate Groups Released

Earlier this week, the Southern Poverty Law Center released its report The Year In Hate and Extremism 2020. The Report identifies 838 active hate groups, an 11% drop from last year. As reported by CNA, some conservative Christian groups have criticized SPLC for labelling anti-abortion and anti-gay marriage organizations as anti-LGBTQ hate groups. [Thanks to Michael Lieberman for the lead.]

Supreme Court: FSIA Shields Germany From Suit Over Nazi Takings of German-Jewish Property

Yesterday in Federal Republic of Germany v. Philipp, (Sup. Ct., Feb. 3, 2021), the U.S Supreme Court held that the Foreign Sovereign Immunities Act (FSIA) precludes plaintiffs from filing suit in U.S. courts to recover for Jewish property taken by the Nazi government from German nationals.  Plaintiffs sued over the Nazi government's coercing a consortium of German Jewish art dealers to sell an art collection to Prussia at a one-third of its value. The FSIA provides that foreign countries, with certain exceptions, are immune from suit in U.S. courts.  Plaintiffs contended that the exception for cases  "in which rights in property taken in violation of international law are in issue" should apply because the coerced sale of their property was an act of genocide.

 A unanimous Supreme Court rejected plaintiffs' argument on two grounds. First it held that the exception for property taken in violation of international law does not include expropriation of property from a country's own nationals. Second it held that the exception for property taken in violation of international law does not apply to property taken in violation of international human rights law, saying in part: 

We need not decide whether the sale of the consortium’s property was an act of genocide, because the expropriation exception is best read as referencing the international law of expropriation rather than of human rights. We do not look to the law of genocide to determine if we have jurisdiction over the heirs’ common law property claims. We look to the law of property.

The Court yesterday also remanded Republic of Hungary v. Simon, (Sup. Ct., Feb. 3, 2021), for further consideration in light of tis decision in Germany v. Philipp. That case is a class action claim for property taken by the Hungarian government from Hungarian Jews during the Holocaust.

SCOTUSblog discusses the decisions.

7th Circuit OK's Nativity Scene In Christmas Display

In Woodring v. Jackson County, Indiana, (7th Cir., Feb. 2, 2021), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, upheld the constitutionality of a nativity scene as part of a display on the county's historic courthouse lawn. The court said in part:

[W]e hold that the County’s nativity scene complies with the Establishment Clause. The district court thought itself bound by the “purpose” and “endorsement” tests that grew out of the Supreme Court’s decision in Lemon v. Kurtzman, 403 U.S. 602 (1971). We hold, however, that the Supreme Court’s recent decision in American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019), requires us to use a different, more historical framework to gauge the constitutionality of the County’s nativity scene. Applying American Legion, we conclude that the County’s nativity scene is constitutional because it fits within a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas—a public holiday....

Judge Hamilton dissented, saying in part:

[T]he majority’s feints toward displacing the endorsement and purpose tests. I say “feints” because the majority ends up applying the American Legion “historical” test in a way that actually looks a lot like the endorsement test, properly understood, taking full account of the content, history, and larger context of the display. Neither this case nor American Legion should be understood as a revolution in Establishment Clause doctrine....

I disagree with the majority’s result because of the specific facts: the religious content dominates the county’s Christmas display here....

The facts and cases may be arrayed roughly along a spectrum ranging from stand-alone Nativity scenes to those that are small parts of much broader seasonal displays. There is not a sharp line. It’s not as simple as counting whether there are more shepherds and angels than elves and snowmen.... If the display is dominated by religious symbolism, with only minor or token secular symbols and symbols of other faiths, the message of endorsement calls for court intervention.

The Hill reports on the decision.

Sanctuary Leaders Sue Over Targeting and Excessive Fines

Suit was filed last month in D.C. federal district court by advocacy groups and individuals who are leaders in the sanctuary movement claiming that ICE and the Department of Homeland Security have targeted the individual defendants with exorbitant fines because they have taken sanctuary in houses of worship. The complaint (full text) in Austin Sanctuary Network v. Gaynor, (D DC, filed 1/19/2021), alleges that these actions violate the 1st and 8th Amendments as well as RFRA. The complaint alleges in part:

The sanctuary movement reignited in the 2000s through a network of over 800 Christian, Jewish, Muslim, Hindu, Sikh, Baha’i, and Buddhist houses of worship that opened their doors to immigrants at risk of deportation, amidst a steady rise in anti-immigrant rhetoric and the criminalization, detention, and deportation of immigrants....

Individual Plaintiffs’ religious beliefs are deeply intertwined with the sanctuary movement. For them, taking sanctuary and participating in the sanctuary movement are religious acts....

Center for Constitutional Rights issued a press release announcing the filing of the lawsuit.

Virginia Governor Protected By 11th Amendment In Church's Suit Challenging COVID-19 Orders

In Lighthouse Fellowship Church v. Northam, (ED VA, Jan. 27. 2021), a Virginia federal district court dismissed a church's suit against Virginia's governor challenging COVID-19 restrictions on worship services. The court held that under the 11th Amendment, the governor is immune from suit challenging his orders. The suit contended that the orders violated federal and state constitutional and statutory provisions. Christian Post reports on the decision. The Department of Justice had filed a statement of interest supporting plaintiff in the case. (See prior posting.)

Recent Articles of Interest

 From SSRN:

• D. Brock Hornby, History Lessons: Instructive Legal Episodes from Maine's Early Years — Episode 2, (November 15, 2020).
• Rachel Fewell, Interpretation of the Free Exercise Clause and the Disparate Effect on Faith-Based Organizations in a Time of Crisis, (January 25, 2021).
• Matthew Brown, Pistols in the Pews: The Religious Leader's Guide to Firearm Laws and Policies in Places of Worship, (December 15, 2020).
• Paul Johnson & Silvia Falcetta, The Inclusion of Sexual Orientation and Gender Identity in Relationships Education: Faith-Based Objections and the European Convention on Human Rights, (October 28, 2020).
• Linda R. Meyer, Revelation and Legal Personhood, (January 4, 2020).
• Imran Minhas, Shariah Compliant Model of Islamic Banking,   (Journal of Islamic Banking and Finance - Asia - Vol. 37, No. 3, 2020).
• Munir Ahmad Mughal, Ibn Jauzī on the Meaning of Mind Understanding and Purgation, (November 15, 2020).
• Louis Eguzo, Governance and Accountability: A Systematic Review to Examine Its Impact on Social Mission in Nonprofit Organizations, (December 7, 2020).

From SmartCILP:

• Linda C. Fentiman, Of Mosquitoes and "Moral Convictions" in the Age of Zika: How the Trump Administration's Gutting of the Affordable Care Act's Contraceptive Mandate Jeopardizes Women's and Children's Health, 30 Health Matrix 85-174 (2020).
• Cortlan J. Wickliff, The Constitutional Crisis of Government Officials Ignoring Facts in Policy Creation, 43 Thurgood Marshall Law Review 667-692 (2019).

Another Decision On California COVID Limits On Worship Services

In Gateway City Church v. Newsom, (ND CA, Jan. 29, 2021), a California federal district court, discussing recent 9th Circuit and Supreme Court precedents, upheld portions of COVID-19 state and county restrictions on worship services, while preliminarily enjoining other parts of the state's orders.  The court upheld the state prohibition on indoor worship in Tier I high risk areas. It also upheld the county's general prohibition on gatherings of all sorts. The court however enjoined enforcement of state 100- and 200- person capacity limits in Tier II and III recovery-- but allowed percentage-based capacity limits. Finally it enjoined restrictions on activities other than worship services in houses of worship.

Christian Student Group May Move Ahead With Damage Claim For School's Derecognition

In Roe v. San Jose Unified School District Board, 2021 U.S. Dist. LEXIS 16633 (ND CA, Jan. 28, 2021), a California federal district court, while dismissing a number of plaintiffs' claims, permitted the Fellowship of Christian Athletes (FCA) to move ahead on an "as applied" challenge to the school district's nondiscrimination policies. Plaintiffs allege that schools used those policies as a pretext to revoke recognition of student FCA chapters because of their religious beliefs and their speech. At issue is FCA's Sexual Purity Policy that requires FCA leaders to resign their positions if they engage in extramarital sex or homosexual acts. The court held that claims of the individual plaintiffs should be dismissed because they cannot proceed under pseudonyms. It held that individual plaintiffs' claims for prospective relief are moot because they have graduated, and that FCA failed to plead organizational standing for prospective relief. It concluded, however, that claims for damages against defendants in their personal capacities (but not their official capacities) survive a motion to dismiss.

Secular Elected Officials Form New Organization

A press release issued earlier this week announced the formation of a new organization, the Association of Secular Elected Officials.  According to the release, "the non-religious are seriously underrepresented in public office." The group has been formed to

provide support, information and a sounding board for non-religious elected officials at a time when a growing number of people choose not to affiliate with a religion.

Its goals are described by the group's founder:

“For too long the non-religious have been excluded from being open about their constitutional right to be non-religious,” Presberg said. “As the need for science-based policy is paramount, we have a vocal minority pushing for special rights for their religious beliefs. Now, more than ever, we need to support and educate our non-theistic elected colleagues as they work to make our country and their community better for everyone.”

The organization also has a goal of presenting an alternative to the political power of white Christian nationalists.

The organization has a website and a Facebook page.

9th Circuit Hears Oral Arguments In Case of High School Coach Who Prayed At 50-Yard Line

Earlier this week (Jan. 25), the U.S. 9th Circuit Court of Appeals heard oral arguments in Kennedy v. Bremerton School District. (Audio, Video of full oral arguments.) In the case, a Washington federal district court dismissed 1st Amendment and Title VII claims by a high school football coach who was suspended when he insisted on prominently praying at the 50-yard line immediately after football games. The court concluded that his prayer amounted to endorsement of religion by the school district in violation of the Establishment Clause. (See prior posting.) First Liberty issued a press release on Monday's oral argument.

Biden Moves To Restore Funding For Family Planning Clinics; Reverses Mexico City Policy

President Biden yesterday issued Memorandum on Protecting Women’s Health at Home and Abroad (Jan. 28. 2021) (full text).  The Memorandum calls for the Secretary of Health and Human Services to consider whether to revise or repeal the Trump Administration's rules that prohibit recipients of Title X funds from referring patients to abortion providers. The rule has had a particular impact on Planned Parenthood clinics. (See prior posting.) Yesterday's Memorandum states in part:

The Title X Rule has caused the termination of Federal family planning funding for many women’s healthcare providers and puts women’s health at risk by making it harder for women to receive complete medical information.

The Memorandum also revokes the so-called "Mexico City Policy" which withholds USAID family planning funds abroad from organizations that use non-USAID funds to perform abortions, provide advice, counseling, or information on abortion, or lobby a foreign government to legalize abortion or make abortion services more easily available. The Memorandum also directs the Secretaries of State and HHS to withdraw the U.S. from the Geneva Consensus Declaration, and to resume funding to the United Nations Population Fund. CBS News has more on these developments.

RLUIPA Bars City's Enforcement of Parking Lot Restrictions On Church

In Pass-A-Grille Beach Community Church, Inc. v. City of St. Pete Beach, Florida, (MD FL, Jan. 26, 2021), a Florida federal district court, relying on the Religious Land Use and Institutionalized Persons Act, granted a preliminary injunction barring the city from enforcing restrictions on the way in which the church can use its own parking lot. The church, which is located across the street from the beach, allows the public to use its parking lot, free of charge, to access the beach. The city contends that its ordinances prohibit the church from allowing anyone who is not there on legitimate church business from parking in the lot. According to the court:

[The church] states that a vital aspect of its beliefs and ministry is outreach to the local community and the world, heeding a direct command from Christ himself. It desires to use “biblically-based hospitality” to help people enjoy a day at the beach with their families. The Church cites several Biblical verses in support of its beliefs on this point.

After concluding that the city has imposed a "substantial burden" on the church, the court analyzes the primary disagreement between the parties-- the sincerity of the church's religious beliefs regarding use of the parking lot. The court said in part:

When inquiring into a claimant's sincerity ... our task is ... limited to asking whether the claimant is (in essence) seeking to perpetrate a fraud on the court – whether he actually holds the beliefs he claims to hold.... 

The Church is certainly not attempting to perpetrate a fraud upon the Court when it states it desires to use its parking facilities to further its mission by attracting new people. Common sense shows that attracting new members is an important goal for almost all community organizations and mainstream religious groups. Likewise, giving away something for free (in this case parking) is a time-honored strategy used to generate attention create interest, and attract new customers.

At most, the City has demonstrated that the Church may have changed its mind over the years regarding the religious implications of its use of its parking lot.... Well respected religious leaders and institutions throughout the world change their minds on certain matters from time to time, and no one would suggest those changes evidence insincere religious beliefs.

Church Again Asks Supreme Court To Invalidate California COVID Restrictions

In its continuing challenge to California's COVID-19 restrictions on worship services, a California church is again seeking an emergency injunction from the Supreme Court.  The application for an injunction (full text) in Harvest Rock Church, Inc. v. Newsom, (Sup. Ct., filed 1/26/2021) challenges the 9th Circuit's decision earlier this week upholding California's total ban on indoor worship services in highest risk (Tier I) areas, while striking down 100- and 200-person limits at places of indoor worship in Tier 2 and 3 areas. In December, the Supreme Court had remanded the case for further consideration. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the latest application with the Supreme Court.

Today Is International Holocaust Remembrance Day

In a formal resolution adopted in 2005 (full text), the United Nations General Assembly designated January 27 each year as International Holocaust Remembrance Day. That date is the anniversary of the 1945 liberation of Auschwitz-Birkenau. The United Nations has posted a calendar of events that will mark this year's commemoration.  The United States Holocaust Museum will also be streaming programming to mark the day.

UPDATE: President Biden also issued a statement (full text), saying in part:

Today, we join together with people from nations around the world to commemorate International Holocaust Remembrance Day by remembering the 6 million Jews, as well as the Roma and Sinti, Slavs, disabled persons, LGBTQ+ individuals, and many others, who were murdered by the Nazis and their collaborators during the Shoah. We must never forget the truth of what happened across Europe or brush aside the horrors inflicted on our fellow humans because of the doctrines of hatred and division....

The United States will continue to champion justice for Holocaust survivors and their heirs. We are committed to helping build a world in which the lessons of the Holocaust are taught and in which all human lives are valued.

Satanic Temple Challenges Boston City Council's Prayer Policy

Earlier this week, The Satanic Temple filed suit in a Massachusetts federal district court challenging the policy of Boston City Council for selecting individuals to offer the invocations at Council meetings.  The complaint (full text) in The Satanic Temple, Inc. v. City of Boston, MA, (D MA, filed 1/24/2021), alleges that any member of City Council can select a prayer giver. However, The Satanic Temple, which was not selected by a Council member, was denied permission to offer a prayer.  The complaint, claiming Establishment Clause, Free Exercise, Free Speech and Equal Protection violations, contends in part:

As a result, the City broadcasts two constitutionally impermissible messages: those religions who make the cut are endorsed and are therefore insiders of the politically favored community; those who don’t make the cut are not endorsed and are therefore outsiders from the politically favored community.

AP reports on the lawsuit.

9th Circuit Again Upholds Some of California's Restrictions On Indoor Worship; Enjoins Others

In Harvest Rock Church v. Newsom, (9th Cir., Jan. 25, 2021), the U.S. 9th Circuit Court of Appeals, relying on the South Bay decision handed down by a different 9th Circuit panel three days earlier (see prior posting) enjoined California from enforcing its COVID-19 related 100- and 200-person limits at places of indoor worship. It however upheld the total ban on indoor worship services in higher risk areas. Judge O'Scannlain concurred specially, criticizing the South Bay decision and arguing that the total ban on indoor worship should also be enjoined. Orange County Register reports on the decision.

Supreme Court GVRs Chaplain-In-Execution-Chamber Case

Yesterday, the U.S. Supreme Court, in a dispute over execution procedures, granted review, vacated the judgment below and remanded the case in Gutierrez v. Saenz (Docket No. 19-8695, GVR 1/25/2021). (Order List.) The case challenges Texas' exclusion of chaplains from the execution chamber.  In June, 2020, a day before appellant's scheduled execution, the Supreme Court granted a stay of execution pending its decision on whether to grant review. (See prior posting.) As part of that order, the Supreme Court instructed the district court to  promptly determine 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. Apparently the Texas federal district court made additional findings of fact in Nov. 2020. Yesterday, the U.S. Supreme Court granted certiorari and vacated the 5th Circuit's earlier rejection of the trial court's stay of execution. Yesterday's Supreme Court Order went on to provide:

The case is remanded to the Court of Appeals with instructions to remand the case to the District Court for further and prompt consideration of the merits of petitioner’s underlying claims regarding the presence of a spiritual advisor in the execution chamber in light of the District Court’s November 24, 2020 findings of fact. Although this Court’s stay of execution shall terminate upon the sending down of the judgment of this Court, the disposition of the petition for a writ of certiorari is without prejudice to a renewed application regarding a stay of execution should petitioner’s execution be rescheduled before resolution of his claims regarding the presence of a spiritual advisor in the execution chamber.

Austin American-Statesman reports on the decision.

Biden Executive Order Permits Transgender Individuals To Serve In Military

Yesterday President Biden issued an Executive Order (full text) reversing the Trump Administration's 2018 transgender military service ban. In his remarks at the signing of the Executive Order, President Biden said in part:

this is reinstating a position that previous commanders and — as well as the Secretaries have supported.  And what I’m doing is enabling all qualified Americans to serve their country in uniform, and essentially restoring the situation as it existed before, with transgender personnel, if qualified in every other way, can serve their government in the United States military.

NPR reports on the Executive Order.