Biden Re-Establishes White House Faith-Based Partnerships Office

Yesterday President Joseph Biden issued an Executive Order (full text) once again establishing a White House Office of Faith-Based and Neighborhood Partnerships. The accompanying Fact Sheet says in part:

The Partnerships Office’s initial work will include collaborating with civil society to: address the COVID-19 pandemic and boost economic recovery; combat systemic racism; increase opportunity and mobility for historically disadvantaged communities; and strengthen pluralism. The office will also support agency partnerships that advance the United States Government’s diplomatic, international development, and humanitarian work around the world....

Fundamental to these goals is respecting our cherished guarantees of church-state separation and freedom for people of all faiths and none.... The Partnerships Office, for example, will not prefer one faith over another or favor religious over secular organizations. Instead, it will work with every willing partner to promote the common good, including those who have differences with the Administration.

According to the Fact Sheet, Melissa Rogers will serve as Executive Director of the Faith Based and Neighborhood Partnerships Office, and as Senior Director for Faith and Public Policy in the White House Domestic Policy Council. Josh Dickson will serve as the Office's Deputy Director.

Humanist Organization Lacks Standing To Challenge Texas Ban On Secular Marriage Celebrants

 In Center for Inquiry, Inc. v. Warren, (5th Cir., Feb. 10, 2021), the U.S. 5th Circuit Court of Appeals dismissed for lack of standing a suit by a secular humanist organization challenging as an Establishment Clause violation Texas law that refuses to allow secular celebrants to conduct marriage ceremonies. The court held that plaintiffs are asking for relief that does not remedy their injury in full, explaining:

The appellants are seeking relief that would essentially compel ... [the] Dallas County Clerk, to record marriages conducted by secular celebrants such as themselves. However, even if such relief were hypothetically granted, it would not fully redress the injuries for which the appellants bring suit. Here, the appellants’ injuries relate to the barrier to legally solemnize marriages. But even if they prevail in this litigation, relief would be incomplete because the appellants would still be subject to criminal prosecution. In other words, the barrier to legally solemnizing marriages would nevertheless remain.

No Injunction Against Sound Ordinance Because City Disclaims Enforcement Pending Revision

In Abolish Abortion Oregon v. City of Grants Pass, (D OR, Feb. 12, 2021), an Oregon federal district court refused to issue a preliminary injunction against enforcement of the city's Sound Ordinance sought by an organization of Christian evangelists and anti-abortion advocates. Plaintiffs contended that enforcement violates their free speech and free exercise rights. The city, however, has conceded that the current Sound Ordinance is probably unconstitutional and says it is revising the Ordinance. It has also said it will not enforce the Ordinance during the revision process.

Court Says Quebec Worship Limits Apply To Capacity for Each Room

Canadian Lawyer reports on a decision interpreting Quebec's COVID-19 limits on indoor worship services:

Current restrictions on indoor religious gatherings in Montreal means that a maximum of 10 people may congregate in each room of a house of worship, as long as each has a separate entrance or access to the street, the Quebec Superior Court of Justice has ruled in interpreting public health regulations during COVID-19.

Superior Court Justice Chantal Masse’s decision on Feb. 5 ended the legal battle of the Quebec Council of Hasidic Jews and several Jewish congregations, which successfully argued the 10-person limit per synagogue was unacceptable and violated freedom of religion....

Supreme Court Allows Execution Only If Clergy of Choice Allowed In Execution Chamber

As reported by SCOTUSblog, in a jigsaw puzzle-like set of opinions and orders the U.S. Supreme Court last night just before midnight Eastern Time allowed Alabama to move ahead with the execution of convicted murderer Willie Smith-- but only if the state allowed him to have the Pastor of his choice with him in the execution chamber. In Dunn v. Smith, (US Sup. Ct., Feb. 11, 2021), a majority of the Court refused to lift an injunction issued the day before by the 11th Circuit (see prior posting) holding that Alabama's exclusion of all clergy from the execution chamber violates RLUIPA. The order refusing to vacate the 11th Circuit's injunction was unsigned. However Justice Kagan wrote a concurring opinion, joined by Justices Breyer, Sotomayor and Barrett, saying that RLUIPA "sets a high bar for Alabama to clear." They added:

Prison security is, of course, a compelling state interest. But past practice, in Alabama and elsewhere, shows that a prison may ensure security without barring all clergy members from the execution chamber. Until two years ago, Alabama required the presence of a prison chaplain at an inmate’s side. (It gave up the practice only when this Court barred States from providing spiritual advisors of just one faith.) Still more relevant, other jurisdictions have allowed clergy members with no connection to the government to attend an inmate’s execution.... , dissenting from denial of application to vacate injunction). Nowhere, as far as I can tell, has the presence of a clergy member (whether state-appointed or independent) disturbed an execution.

Justice Kavanaugh, in an opinion joined by Chief Justice Roberts, dissented, saying in part:

Because the State’s policy is non-discriminatory and, in my view, serves the State’s compelling interests in ensuring the safety, security, and solemnity of the execution room, I would have granted the State’s application to vacate the injunction.

Justice Thomas indicated (without joining the dissenting opinion) that he would have vacated the 11th Circuit's injunction.   Neither Justice Alito or Gorsuch indicated how they voted, but at least one of them would have had to agree with the 11th Circuit for the majority vote which the Court's unsigned Order commanded.

But this did not end the matter because there was also another outstanding stay of execution in the case which the 11th Circuit had granted on Feb. 10 in order to consider a different challenge to the execution. The Supreme Court yesterday vacated that stay (Order List) so that the execution, with the Pastor present, could move ahead.

As reported by SCOTUSblog, in the end the execution was not carried out because the execution warrant expired a midnight Central Time, only one hour after the Supreme Court orders were handed down.

High School Soccer Rules Changed To Allow Religious Headwear

The National Federation of State High School Associations announced yesterday that it has amended it Soccer Rules Book to allow players to wear religious headwear without prior approval by the respective state association.

11th Circuit: Pastor Should Be Allowed In Execution Chamber

In Smith v. Commissioner, Alabama Department of Corrections, (11t Cir., Feb. 10, 2021), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, reversed an Alabama district court's denial of an injunction to an inmate seeking to have his pastor present in the execution chamber with him. Prison rules allow only members of the execution team and certain medical personnel to be present. Focusing on RLUIPA, the majority said in part:

Although it correctly found Smith had a sincere belief that Pastor Wiley should be present in the execution chamber, the court erred by finding Smith’s exercise of that belief was not substantially burdened simply because Smith expressed a “preference” rather than prove his belief was fundamental to his religion. The court also improperly relied on alternative ways that Smith could practice his religion, including that Smith can visit and pray with Pastor Wiley leading up to his execution and Pastor Wiley can observe the execution from the viewing room.

The majority went on to conclude that while the state has a compelling interest in prison security, its policy is not the least restrictive means of achieving that interest.  It could, as does the federal prison system, require the prisoner to designate his spiritual advisor as soon as an execution date is set so that the state can conduct a background check.

Judge Jordan dissented, saying in part:

Whether the district court got RLUIPA’s least restrictive means requirement right or wrong, I do not believe that its decision constitutes an abuse of discretion.

Minnesota Diocese Settles Clergy Sex-Abuse Claims In Bankruptcy Reorganization

According to WXOW News, the Catholic Diocese of Winona-Rochester, Minnesota which filed for bankruptcy reorganization in 2018 has agreed with its creditors' committee to settle clergy sex-abuse claims from 145 claimants for $21.5 million. The diocese also issued an apology to victims. The settlement must still be approved by the court in the final plan of reorganization.

New York COVID-19 Restrictions On Houses of Worship Enjoined

In a case on remand from the 2nd Circuit, a New York federal district court (without opposition from the state) has issued an injunction against New York state's COVID-19 restrictions on houses of worship.  The court in Agudath Israel of America v. Cuomo, (ED NY, Feb. 9, 2021) said in part:

In light of the decisions by the Supreme Court, Roman Catholic Diocese of Brooklyn, N.Y. v. Cuomo ... and the Second Circuit, Agudath Israel of Am. v. Cuomo ..., specifically finding that “both the fixed capacity and percentage capacity limits on houses of worship” in  the red and orange zones “are subject to strict scrutiny,” ... Defendant has agreed to an injunction against enforcement of the 25% and 33% capacity limits in red and orange zones, respectively.... Subsequently, Defendant’s counsel has represented in status conferences that before the end of February 2021 EO 202.68 will be amended to remove houses of worship.

For the foregoing reasons, the court grants a permanent injunction against enforcement of EO 202.68’s 25% capacity or maximum of 10-people, and 33% capacity or maximum of 25-people limitations on houses of worship, respectively in red and orange zones.

Becket issued a press release announcing the decision.

7th Circuit En Banc Hears Arguments In Ministerial Exception Case

The full U.S. 7th Circuit Court of Appeals, sitting en banc, yesterday heard oral arguments in Demkovich v. St. Andrew the Apostle Parish. (Audio of full oral arguments.) In the case, a 3-judge panel of the 7th Circuit held by a 2-1 vote that the ministerial exception doctrine does not bar hostile work environment claims brought by a ministerial employee where no tangible employment action was taken.  In the case, the music director of a Catholic church alleged that his supervisor harassed an humiliated him about his sexual orientation, as well as his weight and his medical issues. (See prior posting.)  Becket has more on the case.

Jewish Camps Sue County Claiming Discrimination

Suit was filed last week in a New York federal district court by an Orthodox Jewish organization that operates two summer camps in the Catskill Mountains. The complaint (full text) in Oorah, Inc. v. Schoharie County, N.Y., (ND NY, filed 2/5/2021), alleges in part:

2. Over the past decade, Oorah has time and again been subjected to official action discriminating against it on the basis of its Orthodox Jewish character by Defendants. The goal of these arbitrary and discriminatory actions has been to thwart the operation of Oorah’s religious programs and to deter Oorah’s staff, volunteers and participants from the practice of their Jewish faith. Oorah has repeatedly been forced to obtain relief against Schoharie County in the state courts in order to allow it to operate its religious facilities.

3. This hostility rose to a crescendo in 2020, when Defendants... exploited the COVID-19 pandemic to shut down Oorah’s operations completely in an illegal,  premeditated, arbitrary and discriminatory manner.

Yeshiva World reports on the lawsuit.

11th Circuit: Anti-Abortion Protesters Challenge To Permit Requirements Rejected

In Henderson v. McMurray, (11th Cir., Feb. 9, 2021), the U.S. 11th Circuit Court of Appeals dismissed free speech, free exercise and due process challenges to Huntsville, Alabama's application of its permit requirements to activities of James and Carol Henderson, two anti-abortion protesters. When abortion rights counter-protesters drowned out the sidewalk counseling and prayers of the Hendersons, the Hendersons resorted to using amplification devices. This triggered the need for them to obtain a permit under Huntsville's municipal code. In dismissing the Hendersons' various challenges, the court concluded that they failed to plead facts showing that they did not have ample alternative channels of communication or that the limits on noise in their permit were a pretext for viewpoint discrimination. The court also held that the noise limits in the permit were not unconstitutionally vague and that the free exercise claim does not trigger strict scrutiny.

Court Orders Religious Dietary Accommodation For Capitol Riot Shaman

On Jan. 9, the U.S. Department of Justice announced that  Jacob Anthony Chansley was one of three men charged in connection with the the invasion of the Capitol building on Jan. 6. According to the DOJ release:

... Chansley was identified as the man seen in media coverage who entered the Capitol building dressed in horns, a bearskin headdress, red, white and blue face paint, shirtless, and tan pants. This individual carried a spear, approximately 6 feet in length, with an American flag tied just below the blade.

By late January, Chansley was held in custody in the D.C. jail where he filed a request for a religious dietary accommodation. He sought a diet of only organic food because he is a Shamanic practitioner. When the request was denied, Chansley filed an emergency motion in the D.C. federal district court.  In United States v. Chansley, 2021 U.S. Dist. LEXIS 22788 (D DC, Feb. 3, 2021), the court handed down a lengthy opinion ordering the dietary accommodation, saying in part that:

... RLUIPA and the First Amendment provide prisoners with powerful mechanisms to challenge aspects of their confinement that substantially burden religious free exercise....

Ordinarily ... Free Exercise challenges to neutral and generally applicable laws post-Smith merit only rational basis review, under which the DOC's dietary rules would be presumptively valid. But the Court finds that Smith does not govern the present inquiry for two independent reasons. First, unlike the neutral and generally applicable drug law at issue in Smith itself, the DOC's decision to deny defendant a dietary religious exemption is more akin to an "individualized governmental assessment" of his religious conduct....

Second, Smith is inapposite because the DOC's policy is neither neutral nor generally applicable.... [T]he DOC provides dietary religious exemptions for both Muslim and Jewish inmates. Its sole rationale for withholding an analogous accommodation for defendant is that his religious views lack "religious merit." But that derisive language simply underscores the fact that not only is the DOC withholding a religious exemption for defendant that it already grants to other religious prisoners, but that it is doing so simply because defendant belongs to a disfavored sect....

Third, defendant has shown that the DOC's refusal to provide him with an all-organic diet is a substantial burden—both subjectively and objectively—to his religious beliefs....

Apparently the D.C. jail was unable to comply with the court's order, and Chansley was transferred to another federal facility that could comply. (See Court's Memorandum of Feb. 4, 2021). ABC11 reports on developments.

Factional Dispute In Church Dismissed

 In New Covenant Church, Inc. v. Futch, (SD GA, February 5, 2021), a Georgia federal district court dismissed on qualified immunity, as well as other, grounds a dispute described by the court as follows:

This case arises from two feuding family factions which both lay claim to a small church in Brunswick, Georgia, one faction’s exclusion of the other from the church for a period of time, and several Brunswick police officers’ role in that exclusion....

Plaintiffs allege that Defendants [police officers] ... violated Plaintiffs’ First Amendment rights to free exercise of religion ... by: allowing nonmembers of New Covenant to seize and lock it down for ten weeks; threatening to arrest New Covenant members who entered the property; preventing New Covenant members from worshipping; and permitting the Armstrong sisters and others to steal New Covenant’s property. ...

The court found that the officers did not violate a clearly established constitutional right, saying in part:

Defendants ... did not “regulate religious beliefs,” but instead “impose[d] restrictions affecting religious conduct” by allowing the church to be locked up.... The second threshold test is also satisfied; the facts show that Defendants’ actions were not “aimed at impeding religion,” but were instead aimed at maintaining the peace while the parties settled a bitterly contested property dispute.

The court also dismissed due process, 4th Amendment and false imprisonment claims.

Recent Articles of Interest

 From SSRN:

• Yoram Rabin, Yaniv Vaki & Isaac Becker, From Ancient Israel to Modern Israel: The Historical Development of the Protection of a Fetus in Criminal Law, (50 Israel Yearbook on Human Rights 149 (2020).
• Barbara P. Billauer, Religious Freedom vs. Compelled Vaccination: A Case-Study of the 2018–2019 Measles Pandemic - or The Law as a Public Health Response, (January 29, 2021).
• Kathleen Brady, COVID-19 and Restrictions on Religious Worship: From Nondiscrimination to Church Autonomy,  (Forthcoming Fides et Libertas).
• Justin Aimonetti & Christian Talley, Religious Exemptions As Rational Social Policy. (University of Richmond Law Review, Vol. 55, 2021).
• Levi Cooper, Pandemics in the Promised Land: The Hasidic Experience, (Australian Journal of Jewish Studies 33 (2020): 5-26).
• Xavier Foccroulle Menard & Anna Su, Liberalism, Catholic Integralism, and the Question of Religious Freedom (January 15, 2021).
• Audrey Macklin, Working Against and With the State: Hospitality from Sanctuary to Resettlement, (December 12, 2020).
• Carl H. Esbeck, The Establishment Clause: Its Original Public Meaning and What We Can Learn from the Plain Text, (22 Federalist Society Review 26 (2021)).
• Jerameel Kevins, Should Kenya Follow the Path Set by Argentina in Decriminalizing Abortion? (January 8, 2021).
• Caroline Henckels, Ronli Sifris & Tania Penovic, Dignity as a Constitutional Value: Abortion, Political Communication and Proportionality, (Federal Law Review (2021).

From SSRN (Islamic Law):

• Rifai Sulaiman Lebbe, Religious Freedom in Theory and Practice in Sri Lanka, (December 23, 2020).
• Nizamuddin Ahmad Siddiqui, The Law and Politics of the Muslim Minority Citizen, (September 12, 2020).
• Ayub Mukhammadiev, Civil Law Principles in Fiqh of Islamic Law, (TJL -Tematics Journal of Law, Vol-4-Issue-12-December-2020).
• Afrasiab Ahmed Rana & Waqar Ahmad Janjua, Sharī‘ah Governance in Islamic Banking Industry: A Critical Review, (September 19, 2020).
• Afrasiab Ahmed Rana, Essentials of a Valid Contract: A Comparative Study of Islamic Law and the Contract Act, 1872, (November 18, 2020).

From SmartCILP and elsewhere:

• Musafa Aijazuddin, Protection of Religious and Ethnic Minorities before the Genocide Convention, 16 Loyola University Chicago International Law Review 145-176 (2020).
• Shlomo C. Pill, Jewish Law Perspectives on Judicial Settlement Practice, 20 Pepperdine Dispute Resolution Law Journal 227-251 (2020).
• Journal of Law & Religion, Vol. 35, No. 3, Dec. 2020.

Ministerial Exception Applies To Whistleblower Act Claim

In Rehfield v. Diocese of Joliet, (IL Sup. Ct., Feb. 4, 2021), the Illinois Supreme Court held that the ministerial exception doctrine applies to require dismissal of a suit alleging retaliatory discharge in violation of the state's Whistleblower Act. In the suit, the principal of a Catholic elementary school alleged that her employment was terminated because she reported a parent's threatening conduct to police. After discussing prior Supreme Court and Circuit Court precedent, the court said:

In light of the consistent body of authority discussed above, we decline to hold that plaintiff’s whistleblower claim is exempt from application of the ministerial exception. We note, however, that our holding is confined to the claim at issue in this case. We express no opinion on whether the exception bars a suit filed in any case other than the one before us.

The court also concluded that the principal was a "minister" for purposes of the ministerial exception, saying in part: 

although her formal title (“lay principal”) does not necessarily indicate a religious role, it is apparent from the record that plaintiff’s job duties entailed numerous religious functions in furtherance of the school’s Catholic mission.

Cert. Petition Filed In Maine's Tuition Reimbursement Controversy

A petition for certiorari (full text) was filed with the U.S. Supreme Court last Thursday in Carson v. Makin. In the case, the U.S. 1st Circuit Court of Appeals upheld Maine's statutory provisions that pay tuition to out-of-district public or private high schools for students whose districts do not operate a high school. However, to qualify to receive tuition assistance payments, a private school must be non-sectarian. Religious high schools do not qualify. (See prior posting.) Institute of Justice issued a press release  announcing the filing of the lawsuit. [Thanks to Michael Bindas and Chris Freund for the lead.]

New Hampshire Priest Sues Conservative Catholic Website For Defamation

A suit alleging defamation and intentional infliction of emotional distress was filed last Friday in a New Hampshire federal district court by a New Hampshire Catholic priest against the controversial Church Militant website and persons affiliated with it. The complaint (full text) in de Laire v. Voris, (D NH, filed 2/5/2021), contends that false attacks on the character of Father Georges de Laire were published on the traditionalist website and on YouTube by Gary Michael Voris, his Church Militant media company and another reporter for the company. The false attacks began after Father de Laire issued a decree banning the New Hampshire-based St. Benedict Center from holding itself out as being affiliated with the Catholic Church or purporting to hold Roman Catholic religious services on its property.  According to the complaint, St. Benedict Center champions the views put forward in the 1940's by Father Leonard Feeney who "became known for incendiary and hate-filled speeches, primarily anti-Semitic in nature." Feeney was ultimately expelled from the Jesuit Order and excommunicated from the Catholic Church over these views and another doctrinal disagreement. [Thanks to Eugene Volokh via Religionlaw for the lead.]

Supreme Court Enjoins, Pending Appeal, California's Total Ban On Indoor Worship Services

Yesterday, in another decision on the Court's so-called "shadow docket", the U.S. Supreme Court in South Bay United Pentecostal Church v. Newsom, (US Sup. Ct., Feb. 5, 2021), enjoined while a petition for certiorari is pending a portion of California's restrictions on indoor worship services. Last month, the 9th Circuit upheld the restrictions. Now the Supreme Court temporarily enjoined enforcement of the state's total ban on indoor worship services in areas of the highest COVID-19 infection ("Tier I"). However it refused to enjoin the state's 25% capacity limits on worship services in Tier I, and refused to enjoin its ban on singing and chanting during services. The Court, in its unsigned order, added:

This order is without prejudice to the applicants presenting new evidence to the District Court that the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner.

Chief Justice Roberts filed a brief concurring statement, saying in part:

[F]ederal courts owe significant deference to politically accountable officials with the “background, competence, and expertise to assess public health.”... At the same time, the State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.

Justice Barrett, joined by Justice Kavanaugh, filed a brief concurring opinion. 

Justices Thomas, Gorsuch and Alito would also have enjoined the capacity limits and the ban on singing and chanting. However Justice Alito would have postponed the injunction on capacity limits for 30 days to give the state an opportunity to show that these limits are narrowly drawn to reduce COVID spread to the same extent as limits on other essential activities. Justice Gorsuch, joined by Justices Thomas and Alito, filed an opinion explaining their position, saying in part:

Since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses....

Of course we are not scientists, but neither may we abandon the field when government officials with experts in tow seek to infringe a constitutionally protected liberty. The whole point of strict scrutiny is to test the government’s assertions, and our precedents make plain that it has always been a demanding and rarely satisfied standard....

Drafting narrowly tailored regulations can be difficult. But if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry.

Justice Kagan, joined by Justices Breyer and Sotomayor, dissented, saying in part:

California’s response to the COVID pandemic satisfies that neutrality rule by regulating worship services the same as other activities “where large groups of people [come together] in close proximity for extended periods of time.”... The restricted activities include attending a worship service or political meeting; going to a lecture, movie, play, or concert; and frequenting a restaurant, winery, or bar. So the activities are both religious and secular—and many of the secular gatherings, too, are constitutionally protected....

The Court has decided that the State must exempt worship services from the strictest aspect of its regulation of public gatherings. No one can know, from the Court’s 19-line order, exactly why: Is it that the Court does not believe the science, or does it think even the best science must give way? In any event, the result is clear: The State may not treat worship services like activities found to pose a comparable COVID risk, such as political meetings or lectures. Instead, the State must treat this one communal gathering like activities thought to pose a much lesser COVID risk, such as running in and out of a hardware store. In thus ordering the State to change its public health policy, the Court forgets what a neutrality rule demands. The Court insists on treating unlike cases, not like ones, equivalently.

Vox reports on the decision, with particular attention to Justice Barrett's opinion-- her first signed opinion since joining the Court.

Biden Speaks At National Prayer Breakfast

President Biden yesterday delivered taped remarks at this year's National Prayer Breakfast. (Video of full remarks.) AP reported on the event, saying in part:

The event went entirely virtual this year because of the coronavirus pandemic, with Biden and all other speakers appearing via taped remarks. Four living former presidents sent messages to the breakfast, with three speaking on tape while Coons read a message from former President Jimmy Carter — making Trump’s absence conspicuous.