Virginia Trial Court Rejects Religious Challenge To COVID-19 Restrictions On Churches

In Young v. Northam, 2021 Va. Cir. LEXIS 35 (VA Cir. Ct., Feb. 27, 2021), a Virginia state trial court refused to enjoin the Governor's most recent COVID-19 restrictions on churches. Finding that plaintiffs have not overcome the exception for health and safety in the Virginia Statute for Religious Freedom, the court said in part:

The Petitioners religious beliefs are genuine and sincere, but Executive Order # 72 does not prohibit assembly, the taking of communion, singing, praying nor restrict capacity in churches. St. Matthew states that "For where two or three gather in my name, there am I with them." Matthew 18:20.

There are no capacity limits in Executive Order # 72 and non-religious gatherings have stricter requirements regardless of occurring indoors or outdoors. (12). Section (E) of the statute certainly contemplated that some temporary restrictions may be necessary in emergency situations.

The next issue, consistent with the statute, is whether the least restrictive means have been employed to further the compelling governmental interest. Executive Order # 72 exempts religious services from the otherwise-universal temporary gathering restrictions. The order indicates that individuals may be seated wherever and with whomever they want with appropriate physical distancing.

This court recognizes an honest distinction between an appropriate political debate that reflects rational disagreement with the Respondent's order and a judicial ruling that such order is unconstitutional. Therefore, the court holds that the Petitioners are not entitled to injunctive relief under the statute.

The court also rejected a 1st Amendment free exercise challenge. 

School's Refusal To Allow Modified Graduation Cap Upheld

In Waln v. Dysart School District, 2021 U.S. Dist. LEXIS 38345 (D AZ, Feb. 28, 2021), an Arizona federal district court rejected free exercise, free speech and equal protection challenges to a school district's refusal to allow a graduating senior to wear a decorated cap at graduation ceremonies.  The student was a member of the Sioux tribe and for cultural and religious reasons wanted to wear a beaded cap adorned with an eagle feather. The school district allowed Native American students to wear in their hair, or as a necklace or jewelry, but did not permit altered commencement caps. The court said in part:

[A]dopting an appearance of neutrality with regard to religion or cultural viewpoints, and the avoidance of controversy, have been deemed reasonable bases for subject-matter limitations, such as limitations on religious expression, on a student's free speech rights.... In this matter, all expressive speech, including but not limited to religious speech, was prohibited by the dress code blanketly prohibiting the augmentation of graduation caps, and the restriction was reasonable and related to the purpose of the forum. And, most notably, the prohibition of any adornment of any kind on a student's graduation cap during the commencement ceremonies was content-neutral.

Canadian Court Upholds Denial of Driver's License To Pastafarian Wearing Pirate's Hat

In Canada, in Smith v. British Columbia Human Rights Tribunal, (BC Sup. Ct., Feb. 26, 2021), a British Columbia trial court upheld the dismissal by the B.C. Human Rights Tribunal of a religious discrimination complaint filed by a member of the Church of the Flying Spaghetti Monster. The province's driver's license authority had refused to issue petitioner a license using his photo that showed him wearing a pirate's tricorn hat. The Tribunal had said:

You are a Pastafarian and member of the Church of the Flying Spaghetti Monster which mocks religious beliefs and certain religious practices.  Pastafarians wear colanders as “religious” head gear.

While the protection against discrimination on the ground of religion in the Code includes protecting the expression of non-belief and the refusal to participate in religious practice, the protection does not require accommodation of a practice satirizing religious practice in providing a service customarily available to the public.  It would not further the purposes of the Code to proceed with a complaint in these circumstances.

In refusing to overturn the Tribunal's decision, the court said in part:

The Tribunal determined that accepting the petitioner’s complaint for filing “would not further the purposes of the Code”, one of which is to “promote a climate of understanding and mutual respect where all people are equal in dignity and respect”.  In my view, the Tribunal’s Decision ... cannot be said to have been patently unreasonable.

Castanet reports on the decision.

USDA Delays Transfer of Sacred Apache Ceremonial Site

As previously reported, last month an Arizona federal district court refused to enjoin a federal conveyance of a sacred Apache ceremonial ground know as Oak Flat to Resolution Copper. Yesterday the Department of Agriculture announced that it has delayed the transfer by rescinding its previous environmental impact statement, saying in part:

The recent Presidential Memorandum on tribal consultation and strengthening nation to nation relationships counsels in favor of ensuring the Forest Service has complied with the environmental, cultural, and archaeological analyses required. USDA has concluded that additional time is necessary to fully understand concerns raised by Tribes and the public.... Because the Resolution Copper Mine and Land Exchange Project was directed under the 2015 National Defense Authorization Act, long term protection of the site will likely require an act of Congress. USDA and the Forest Service cannot give a precise length of time for completing the re-initiation of consultation but consultations such as this generally take several months.

Arizona Republic reports on the USDA's action.

Israel's Top Court Rules That State Must Recognize Non-Orthodox Conversions Under Law of Return

Yesterday, Israel's Supreme Court ruled that those who convert to Judaism in Israel under auspices of the Reform or Conservative (Masorti) movements must be granted Israeli citizenship under the Law of Return.  As reported by JTA:

Israel’s Law of Return offers automatic citizenship to anyone with at least one Jewish grandparent. The state also generally recognizes those who converted to Judaism under Orthodox standards.

Past Supreme Court decisions have mandated that the state also recognize Jews who converted outside of Israel under non-Orthodox authority, provided they live in a recognized Jewish community....

Monday’s decision extends the right to citizenship to those who converted to Judaism under non-Orthodox auspices in Israel itself. The petition that spurred the court ruling was filed in 2005 but was postponed for more than a decade because the court wanted to give the government time to resolve the matter through legislation.

According to the New York Times:

The decision was mainly symbolic because typically, only 30 or 40 foreigners convert to Reform or Masorti Judaism in Israel every year.... 

But the ruling chips away some of the monopoly Orthodox rabbis have held over questions of religious identity that are central to frictions within Israeli society. It also inflames a long-running debate about the relationship between Israel’s civil and religious authorities — and particularly the role of the Supreme Court.

2020 EEOC Enforcement Data Released

The EEOC last week released Fiscal Year 2020 Enforcement and Litigation Data. It shows that 3.6% of the claims filed by the EEOC allege religious discrimination. The agency has also published a detailed breakdown of how the EEOC resolved the charges.

Recent Articles of Interest

 From SSRN:

• Gilad Abiri, The Distinctiveness of Religion as a Jeffersonian Compromise, (Penn State Law Review, Vol. 125, No. 1, 2020).
• Sohail Wahedi, Favoring And Disfavoring Religion In Law, (University of Detroit Mercy Law Review, Vol. 97, No. 4 (2020).
• Frédéric Mégret, Lost in Translation? Bill 21, Human Rights and The Margin of Appreciation, (“Bill 21 in Global Perspective”, McGill Law Journal (2020)).
• Harry Hobbs & George Williams, Protecting Religious Freedom in a Human Rights Act, ((2019) 93(9) Australian Law Journal 721-733).
• Jimmy Chia-Shin Hsu, Right to Life, (Chapter in Oxford Handbook of Constitutional Law in Asia (OUP, Forthcoming)).
• Pavel Filatov, The Constitutionality of Israel’s Nation State Law Considered in Light of the Principles Underlying the Canadian Charter of Rights and Freedoms, (December 1, 2019).
• Rifai Sulaiman Lebbe, War and Peace in Islam, (February 15, 2021).

Supreme Court Allows California Churches To Hold Indoor Services While Appeals Continue

The U.S. Supreme Court on Friday night in Gateway City Church v. Newsom, (Sup. Ct., Feb. 26, 2021) issued an injunction that will allow petitioner churches to hold indoor worship services while their appeal is disposed of by the 9th Circuit and a petition for certiorari is filed and acted upon by the Supreme Court. In the case, the U.S. 9th Circuit Court of Appeals refused to enjoin enforcement, while the appeal is ongoing, of a Santa Clara County, California COVID-19 Order that prohibits all indoor gatherings, including worship services. (See prior posting.) In granting an injunction, the Supreme Court said:

The Ninth Circuit’s failure to grant relief was erroneous. This outcome is clearly dictated by this Court’s decision in South Bay United Pentecostal Church v. Newsom, 592 U. S. ___ (2021).

Justice Kagan, joined by Justices Breyer and Sotomayor dissented. 

SCOTUSblog reports on the Court's order, pointing out that the county had informed the Court that the current ban will soon be lifted and indoor gatherings with capacity restrictions will be allowed.

California Church Not Exempt From Property Tax Assessed On Basis of Square Footage

In Valley Baptist Church v. City of San Rafael, (CA App., Feb. 26, 2021), a California state appellate court held that the "property taxation" exemption for property used exclusively for religious worship (California Constitution Art. XII, §3(f)) applies only to ad valorem taxes. Therefore plaintiff church was not exempt from the San Rafael's Paramedic Tax which is assessed on the basis of property square footage, not property value.

New York's No-Fault Divorce Law Did Not Infringe Wife's Religious Freedom

In King v. New York, (ND NY, Feb. 26, 2021), a New York federal district court rejected a wife's contention that New York's no-fault divorce law violates the Free Exercise and Establishment Clauses by infringing her Christian religious belief that marriage is permanent and cannot be dissolved by the state. The court said in part:

... [A] finding that H. King must remain married against his will because of L. King’s religious convictions would defy all logic and reason, and create a much larger Establishment Clause issue than the one L. King argues exists today....

Moreover, ... there is no constitutional injury here for the independent reason that the divorce that gave rise to this litigation only dissolved L. King’s and H. King’s legal marriage recognized by the State of New York; the divorce did not affect the status of their “religious marriage.”

Malaysia's Top Court Restricts Scope of State Power To Enact Sharia Law

In a decision handed down yesterday, Malaysia's highest court-- the Federal Court-- imposed significant limits on the power of Malaysian states to enact Islamic legal prohibitions, including laws that ban homosexual relationships.  The court struck down Section 28 of the Shariah Criminal Offences (Selangor) Enactment 1995-- a law of the state of Selangor that makes "sexual intercourse against the order of nature with any man, woman or animal" a criminal offense under Shariah law. Sections 377 and 377A of the federal penal code cover the same conduct.  As reported by Malay Mail:

Under Item 1 of the Federal Constitution’s State List, state legislatures can make laws on Islamic law ... "except in regard to matters included in the Federal List"....

... [T]he judge noted that the preclusion clause states “except in regard to matters included in the Federal List” and not “except in regard to matters included in the Federal Law”.

The judge explained that this does not mean that state legislatures have power to make law on matters that Parliament has not already made law on, and that state legislatures are instead unable to make law on matters that fall within Parliament’s jurisdiction, even if there is no such federal law yet....

With no challenge by any of the parties in the case over Parliament’s powers to make the Penal Code provisions that cover the same matter as Section 28, the judge said the Federal Court must accept that Parliament had competently enacted the Penal Code provisions in line with the Federal Constitution.

Malay Mail reports on the reaction of the Shariah Lawyers Association of Malaysia to the decision.

Korea's Supreme Court Accepts Secular Conscience Objection To Military Service

Korea JoongAng Daily reports that for the first time yesterday, Korea's Supreme Court held that a non-religious conscientious objector is entitled to an exemption from annual reservist training:

Reading the top court’s ruling, presiding Judge Lee Heung-goo said, “Although it is not based in religious belief, the defendant’s rejection of reservist training stems from a sincere conscientious objection grounded in his ethical, moral and philosophical convictions. We therefore see this as a justifiable application of the provision in the Reserve Forces Act for declining participation.”...

At his Supreme Court trial, the man testified, “Growing up under a violent father, I underwent a self-awakening about the use of force. Later, I saw a video of American soldiers shooting civilians from a helicopter, which led me to renounce the idea of possibly killing or murdering another human being.”

(See prior related posting.)

Required Measles Inoculation Upheld

In W.D. v. Rockland County, (SD NY, Feb. 22, 2021), a New York federal district court dismissed free exercise, equal protection and due process challenges to an order of the Rockland County Department of Health requiring children between 6 months and 18 years of age to be vaccinated against measles in order to enter any place of public assembly, including for educational or religious purposes. The order did not apply to children with medical exemptions, but did apply to those with religious exemptions. Rejecting plaintiffs' free exercise challenge, the court said in part:

Here, the Emergency Declaration is subject to rational basis review because it is both facially neutral and generally applicable.... Under rational basis review, Defendants have demonstrated that the Declaration served the legitimate government purpose of protecting the County’s community from the measles outbreak.... Moreover, even if strict scrutiny applied, the Emergency Declaration satisfies that standard as well. 

EEOC Sues On Behalf of Seventh Day Adventist Hotel Employee

EEOC announced yesterday that it has filed a religious discrimination suit against a Florida resort hotel, Noble House Solé. The suit alleges that a new director of housekeeping fired a Seventh Day Adventist room attendant who refused to work on Saturdays. For the prior ten months, the employee's Sabbath observance had been accommodated.

Japan Supreme Court: City Cannot Offer Land Free To Confucian Temple

Kyodo reports that Japan's Supreme Court yesterday ruled that it was unconstitutional for a city government to waive land usage fees for a Confucian temple:

Presiding Justice Naoto Otani, who heads the top court, said the capital city of Okinawa Prefecture's waiver of the land usage fees for the Confucian temple, which sits on a city-run park, infringes Article 20 of the supreme law, which bans municipalities from engaging in religious activities.

"The Naha city government could be judged to be aiding a certain religion," said the ruling made by the top court's Grand Bench.

The Supreme Court also determined that the temple built by a group of descendants of people who had moved from China to Japan in the 14th century is a religious facility and its historical value and significance as a tourist spot cannot warrant free land usage.

11th Circuit En Banc Hears Oral Arguments In Case of Juror Who Heard From A Higher Being

On Tuesday, the U.S. 11th Circuit Court of Appeals, sitting en banc, heard oral arguments (audio or full oral arguments) 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.) News4 reports on the oral arguments.

OCR and Justice Back Off Trump Administration Policy On Transgender High School Athletes

The Department of Education Office of Civil Rights (OCR) has signaled a that it is reversing the Trump Administration's policy that did not permit transgender women to compete in women's high school sports. AP reported yesterday that in a court filing in a Connecticut federal district court, OCR and the Justice Department withdrew their support for plaintiffs in a lawsuit that challenges Connecticut's policy of allowing sports participation consistent with an athlete's gender identity.  Those opposing Connecticut's policy argue that transgender women who were born male have physical strength advantages in women's sports. Also yesterday, OCR sent a letter (full text) to attorneys for several Connecticut school districts saying that it is withdrawing a letter giving notice of impending enforcement that was sent by the Trump Administration. OCR says that the interpretation of Title IX in the Trump Administration letter "should not be relied upon in this or any other matter."

Scottish Court Lets Franklin Graham Move Ahead With Suit Over Cancelled Appearance

Last week, a Sheriff's Court in Scotland handed down an initial decision in a suit by evangelist Franklin Graham whose appearance at a large arena in Glasgow was cancelled by the arena operators after the Glasgow City Council complained that there was a potential for Graham to make homophobic and Islamophobic comments during his appearance.  In Billy Graham Evangelistic Association v. Scottish Event Campus Ltd., (Glasgow Sheriffdom, Feb. 16, 2021), the court held that it needed to hear evidence on Graham's claim that the cancellation of his event violated the Equality Act's prohibition on religious discrimination. Summarizing the arguments of the parties, the court said in part:

The defender’s case includes ... averments that there was potential for public order issues with the event....

The defender also avers... that "the staging of the event would bring the defender into disrepute and terminated the Contract on that basis. It did not terminate the event as a result of the religious views of the pursuer or Mr Franklin Graham."

Further ... the defender avers that: "It does not discriminate against any group or individual when deciding on whether to accept a booking. It was irrelevant to the defender that the pursuer was seeking to express religious views. The reason the Contract was terminated was due to the risk to the defender’s reputation arising from the risk of violent protests at a public event....

[However] The pursuer avers that the event was a forum for the proclamation of the Christian gospel in accordance with mainstream evangelical Christian teaching....

“The fact that the defender now avers that it does host a range of faith-based events to which it takes no objection – the defender offers as an example the annual conference of Jehovah’s Witnesses – shows precisely that the defender does operate a policy of discrimination against groups or individuals in that only those with views or religious positions which the defender deems to be ‘acceptable’ will be permitted to hire its premises.

Scottish Legal News reports on the decision. [Thanks to Frank Cranmer for the lead.]

India's Hindu Nationalist Government Cancels Scheduled Exam On Cows

New York Times reports that in India, Prime Minister Narendra Modi’s Hindu nationalist government has postponed offering a widely criticized exam on cows for which 500,000 people had already registered:

Critics said the curriculum, devised by the National Cow Commission set up by Mr. Modi’s government, was an especially bold move by his ruling party to push its  ideology and undercut the secularism that is enshrined in India’s Constitution but seems to be increasingly imperiled with each passing day....

Many academics see the fact that a government body tried to push a curriculum on cows — one that included many completely unsubstantiated claims — as evidence that the government has increasingly fallen under the sway of Hindu supremacist groups like the R.S.S., in which Mr. Modi and many top officials were once active....

The test was not made mandatory, but India’s University Grants Commission, a federal agency, encouraged students — in fact, all citizens — to study the material and take the exam as an extracurricular activity.

Critics across the country urged the cow commission to call off the exam, saying students would feel pressured by the government to take it. They said parents would urge their children to take the exam, because the government was planning to issue a certificate that could be helpful to the students’ future careers. The commission also dangled prize money for top scorers.

Canada's House of Commons Declares China's Actions Against Uighurs To Be Genocide

Yesterday Canada's House of Commons passed a non-binding resolution (full text) declaring that China's actions against its Uighur and other Turkic Muslim minorities-- including detention camps and measures intended to prevent births constitute genocide. The Global News reports:

The Conservative motion passed overwhelmingly in the House of Commons with 266 votes to zero. The Liberal cabinet abstained from voting.

An amendment to the motion, proposed by Bloc Quebecois MP Alexis Brunelle-Duceppe, calling on the International Olympic Committee to move the 2022 Olympic Games out of China if the genocide continues also passed 229 to 29 votes.