Malaysian Court Says Christian Publications Can Use the Word "Allah"

Bernama reports that in Malaysia, the Kuala Lumpur High Court has ruled that Christians may use the word "Allah" and three other Arabic words in their religious publications for educational purposes. The court held that a 1986 Home Ministry ban on use of the words was unconstitutional. Publications using the terms must also carry a disclaimer saying that the publication is only for Christians, and must also carry a symbol of a Cross. Litigation on the issue began in 2008. (See prior related posting.)

UPDATE: Daily Express (March 15) reports that the government has filed an appeal in the case.

Think Tank Issues New Report On Uyghur Genocide

Newlines Institute for Policy and Strategy, a D.C. think tank, this week issued a 55-page report (full text) titled The Uyghur Genocide: An Examination of China’s Breaches of the 1948 Genocide Convention. According to the Report's Introduction:

This report concludes that the People’s Republic of China ... is committing an ongoing genocide against the Uyghur ethnic group, in violation of the Convention on the Prevention and Punishment of the Crime of Genocide.... The report examines key pertinent developments in the Xinjiang Uyghur Autonomous Region ... from May 2013, when the XUAR Government released the earliest known document laying the groundwork for the mass internment campaign, to the present. These events follow a long history of persecution against the Uyghurs in China. The report specifically considers the question of State responsibility under international law for breaches of the Genocide Convention, not the individual criminal liability of particular leaders or perpetrators.

Arkansas Enacts Law Banning Virtually All Abortions, Seeking Vehicle For Overturning Roe v. Wade

On Tuesday, Arkansas Governor Asa Hutchinson signed into law SB6, the Arkansas Unborn Child Protection Act (full text). The new law bans all abortions, except to save the life of a pregnant woman in a medical emergency.  A doctor who violates the law is subject to a fine of up to $100,000 and up to ten years in prison. Gov. Hutchinson's signing statement said in part:

I will sign SB6 because of overwhelming legislative support and my sincere and long-held pro-life convictions. SB6 is in contradiction of binding precedents of the U.S. Supreme Court, but it is the intent of the legislation to set the stage for the Supreme Court overturning current case law. I would have preferred the legislation to include the exceptions for rape and incest, which has been my consistent view, and such exceptions would increase the chances for a review by the U.S. Supreme Court.

[Thanks to Scott Mange for the lead.]

Court In India Dismisses Charge That Facebook Post Violated Blasphemy Law

In India, the High Court of the State of Tripura dismissed a complaint filed against petitioner claiming that he violated Section 295A of the Indian Penal Code through a Facebook post. That section prohibits deliberate and malicious acts intended to outrage religious feelings by insulting religion or religious beliefs. In Gosh v. State of Tripura,  (High Ct. Tripura, Feb. 26, 2021), the court concluded that Section 295A was not violated by the post that was in Bengali script, and whose meaning was unclear. The court said in part: 

According to the complainant, by putting such an un-tasteful and obscene comment on Hindu religion by saying that Gita, the sacred religious text is “thakbaji Gita”, the petitioner has hurt the religious feelings of Hindu community....

As I have noted earlier, there is a dispute about what exactly did the petitioner convey through the said post.... The word ‘ঠক’ is explained as deceitful, swindling and knavish. When suffix „বাজজ‟ is added, it conveys the meaning of cheating, swindling or knavery whereas the term ‘ভাজা’ is explained as to fry or roast. What the petitioner has written on his Facebook post is „ঠগভাজী’. Whatever this term coined by the petitioner may mean or may not mean anything at all, it certainly does not convey the meaning which the complainant wants to ascribe namely that Bhagavad Gita, is a deceitful document.

Swaddle reports on the decision.

Satanic Temple Member Sues Over Texas Abortion Requirements

The Satanic Temple and one of its members filed suit last month in a Texas federal district court challenging Texas' requirement that a woman have a sonogram prior to an abortion.  The complaint (full text) in The Satanic Temple, Inc. v. Texas Department of State Health Services, (SD TX, filed 2/12/2021), alleges that the individual plaintiff wishes to engage in The Satanic Temple's Abortion Ritual, explaining:

46. TST developed the Satanic Abortion Ritual to help its membership cast off guilt, shame, and mental discomfort that the member may be experiencing in connection with their election to abort the pregnancy....

47. The Ritual also confirms the member’s choice and wards off effects of unjust persecution....

48. Here, the unjust persecution is an improper effort of the State (the “outside world”) to infringe on the decision-making of a member about her own health decision (the “inside world.”)...

102. Texas places barriers between Ms. Doe (and TST’s similarly situated members) and this religious speech and conduct by first requiring she undergo a medically unnecessary operation, requiring she reject the “opportunity” to see the results of the imaging, requiring she listen to the narrative of and results of the imaging, and requiring she wait.

Plaintiffs claim that the regulations violate their free exercise, substantive due process and equal protection rights. Christian Headlines reports on the lawsuit.

Executive Order Calls For Review To Assure No Discrimination In Education On Basis of Sex, Sexual Orientation or Gender Identity

Yesterday President Biden issued an Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity (full text). It calls for a review of existing federal regulations and guidance documents to assure "an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity. "

President Biden Praises Papal Visit To Iraq

Yesterday, President Biden issued a Statement (full text) on Pope Francis' just-completed visit to Iraq, saying in part:

I congratulate the Government and people of Iraq for the care and planning that went into organizing this monumental visit, and continue to admire Pope Francis for his commitment to promoting religious tolerance, the common bonds of our humanity, and interfaith understanding.

Colorado Bakery, In Court Again, Loses Attempt to Dismiss Transgender Discrimination Claim

 In Scardina v. Masterpiece Cakeshop, Inc.,(CO Dist. Ct., March 4, 2021), a Colorado state trial court dismissed Colorado Consumer Protection Act claims against a bakery that has been the subject of extensive litigation over its refusal to design wedding cakes for same-sex weddings. In the current case, plaintiffs claimed that the bakery engaged in misleading advertising indicating that they would sell birthday cakes to LGBT individuals. The court dismissed the claim because "the most salient materials Plaintiff allegedly relied on are not advertisements," but were news articles and op-eds. However the court refused to dismiss plaintiff's Colorado Anti-Discrimination Act claim that she was discriminated against because of her transgender status when plaintiff refused to make a blue and pink cake celebrating her gender transition. The court said in part:

Whether making Plaintiff’s requested cake is inherently expressive, and thus protected speech, depends on whether Defendants would thereby convey their own particularized message, and whether the likelihood is great that a reasonable observer would both understand the message and attribute that message to Defendants.... The Court cannot conclude, based on the current record, that the act of making a pink cake with blue frosting, at Plaintiff’s request, would convey a celebratory message about gender transitions likely to be understood by reasonable observers. Further, to the extent the public infers such a message, that message is far more likely to be attributed to Plaintiff, who requested the cake’s simple design. Therefore, if Defendants violated CADA here, they have not shown that their freedom of speech would be violated by holding them liable.

7th Circuit Denies Preliminary Injunction Against Prior Illinois Limits On Worship Services

In Cassell v. Snyders, (7th Cir., March 8, 2021), the U.S. 7th Circuit Court of Appeals refused to issue a preliminary injunction against a now-superseded Illinois COVID-19 order that prohibited public gatherings of more than ten people, including religious services. The court said in part:

Intervening authority from the Supreme Court offers plaintiffs a greater prospect for success on the merits of their First Amendment claim than either the district court or we had expected. See Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020). Yet recent Supreme Court authority has also indicated that equitable considerations weigh against granting a preliminary injunction at this time, when the prospect of irreparable injury to the plaintiffs is very low....

Even if the plaintiffs now appear more likely to succeed on the merits of their free exercise claim, there simply is no compelling need for preliminary relief against these long-expired orders, and there is every reason to expect that even if Illinois in the future believes some binding restrictions on worship services are needed, it will act with a close eye on the Supreme Court’s latest pronouncements on the subject, including the need for measures closely tailored to meet public health needs.

[Thanks to Jeff Pasek for the lead.]

In Campus Religious Speech Case, Supreme Court Says Nominal Damage Claim Can Support Standing

The U.S. Supreme Court today decided Uzuegbunam v. Preczewski, (Sup. Ct., March 8, 2021), potentially opening the courts to a larger number of civil rights complaints.  The case involves a challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature and proselytizing on campus. Subsequently, the school changed its policies, but that did not moot the students' claim for nominal damages. At issue in the case as it reached the Supreme Court is whether a claim for nominal damages satisfies the requirement that for standing a plaintiff must show, among other things, that the remedy will redress the constitutional violation alleged. In an 8-1 decision, through an opinion written by Justice Thomas, the Court said in part:

Because nominal damages were available at common law in analogous circumstances, we conclude that a request for nominal damages satisfies the redressability element of standing where a plaintiff’s claim is based on a completed violation of a legal right.

The dissent worries that after today the Judiciary will be required to weigh in on legal questions “whenever a plaintiff asks for a dollar.” ... But petitioners still would have satisfied redressability if instead of one dollar in nominal damages they sought one dollar in compensation for a wasted bus fare to travel to the free speech zone....

This is not to say that a request for nominal damages guarantees entry to court. Our holding concerns only redressability. It remains for the plaintiff to establish the other elements of standing (such as a particularized injury)....

Justice Kavanaugh filed a concurring opinion. 

Chief Justice Roberts dissented, saying in part:

Today’s decision risks a major expansion of the judicial role. Until now, we have said that federal courts can review the legality of policies and actions only as a necessary incident to resolving real disputes. Going forward, the Judiciary will be required to perform this function whenever a plaintiff asks for a dollar. For those who want to know if their rights have been violated, the least dangerous branch will become the least expensive source of legal advice....

The best that can be said for the Court’s sweeping exception to the case-or-controversy requirement is that it may itself admit of a sweeping exception: Where a plaintiff asks only for a dollar, the defendant should be able to end the case by giving him a dollar, without the court needing to pass on the merits of the plaintiff ’s claims.

ABC News reports on the decision.

Swiss Voters Approve Burka Ban

SwissInfo reports that voters in Switzerland yesterday approved, by a narrow majority, a constitutional amendment that would ban wearing of the burka in public places:

A decade after another national vote that banned the building of minarets, Switzerland will introduce a clause in its constitution to outlaw face coverings, including the Islamic burka and niqab, in public spaces....

Exceptions to the law will include face coverings for reasons of security, climate, or health – which means protective masks worn against Covid-19 are acceptable. Niqabs and burkas will still be allowed in places of worship.

Final results on Sunday showed just six of the country’s 26 cantons rejecting the initiative, which was launched by the right-wing Egerkinger committee – the same group who were behind the minaret vote in 2009.

Turnout was just over 50%, a little above average.

8th Circuit Upholds Missouri Immunization Opt-Out Form

In B.W.C. v. Williams, (8th Cir., March 5, 2021), the U.S. 8th Circuit Court of Appeals rejected free speech, free exercise, equal protection and hybrid rights challenges by parents and their children to the form they must file in Missouri to obtain a religious exemption from vaccination requirements. The form, which the parent must sign, contains a paragraph urging parents to immunize their child. The court said in part:

Form 11 states the government’s position, separated from the religious opt-out. Unlike a student required to recite the Pledge or a motorist required to display the state’s motto, there is no confusion here: it is the government’s message to parents considering Form 11....

Form 11 does not require the plaintiffs to engage in conduct against their religious beliefs. Plaintiffs object to the process of producing vaccines or introducing vaccines into their children’s bodies.... [S]ubmission of Form 11 does not increase the number of vaccines produced or force their children to get immunized....

Form 11 does not target religious believers or violate their right to equal protection. The defendants do not treat the plaintiffs differently than any other parent requesting an exemption from immunization: they were all required to submit a DHSS form to their school.

Courthouse News Service reports on the decision.

Massachusetts Supreme Court Says Social Work Prof Not Covered By The Ministerial Exception

In DeWeese-Boyd v. Gordon College, (MA Sup. Ct., March 5, 2021), the Massachusetts Supreme Judicial Court held that the ministerial exception does not apply in a suit by an associate professor of social work at a private Christian liberal arts college who claims her promotion to full professor was denied because of her vocal opposition to the school's policies on LGBTQ individuals. In allowing plaintiff to move ahead with her discrimination, retaliation and breach of contract claims, the court said in part:

We conclude that Gordon College (Gordon) is a religious institution, but that the plaintiff, Margaret DeWeese-Boyd, is not a ministerial employee..... [S]he did not teach religion or religious texts, lead her students in prayer, take students to chapel services or other religious services, deliver sermons at chapel services, or select liturgy, all of which have been important ... factors in the Supreme Court's functional analysis. The most difficult issue for us is how to evaluate her responsibility to integrate her Christian faith into her teaching and scholarship as a professor of social work.

The Supreme Court has not specifically addressed the significance of the responsibility to integrate religious faith into instruction and scholarship that would otherwise not be considered ministerial. If this integration responsibility is sufficient to render a teacher a minister within the meaning of the exception, the ministerial exception would be significantly expanded.... In fact, Gordon has recently attempted to describe all of its faculty, and even all of its employees, as ministers, over the objection of the faculty itself. It is our understanding that the ministerial exception defined by the Supreme Court is more circumscribed.

Salem News reports on the decision.

Recent Articles of Interest

From SSRN:

• Joel West Williams & Emily deLisle, An 'Unfulfilled, Hollow Promise': Lyng, Navajo Nation, and the Substantial Burden on Native American Religious Practice, (Ecology Law Quarterly, Forthcoming).
• Hila Keren, Separating Church and Market: The Duty to Secure Market Citizenship for All, (February 18, 2021).
• David Sugarman, Becoming Peter Fitzpatrick (1941-2020), (International Journal of Law in Context, 2021).
• Scot D. Gerber, The Intellectual History of European Laws about Religious Toleration Prior to the Planting of English America, (Glossae: European Journal of Legal History (2021)).
• Griffin Rubin, Constructing a Tower of Babble: An Examination of Purpose in Establishment Clause Jurisprudence, (SMU Law Review Forum, 2021).
• Johnny Davis, Biblical Natural Law vs. Law and Economics views on Contract Law, (February 28, 2021).
• Sarah Lee & Kevin J. O'Brien, Adapting in Difficult Circumstances: Protestant Pastors and the Xi Jinping Effect,  (Journal of Contemporary China (2021)).
• Edward P. Richards, A Historical Review of the State Police Powers and Their Relevance to the COVID-19 Pandemic of 2020, (11 J. Nat'l Sec. L. & Pol'y 83 (2020)).
• Netta Barak Corren & Lotem Perry-Hazan, Bidirectional Legal Socialization and the Boundaries of Law: The Case of Enclave Communities’ Compliance with COVID-19 Regulations, (Hebrew University of Jerusalem Legal Research Paper (2021)).
• Timothy A.O. Endicott, Human Rights and the Executive, ((2020) 11 Jurisprudence 597-609).

From SSRN (Islamic law):

• Hamdy Abdelrahman Hassan, A New Hotbed for Extremism? Jihadism and Collective Insecurity in the Sahel, (Asian Journal of Peacebuilding, Vol. 8 No. 2 (2020): 203-222).
• Amily Fikry, et. al., The Use of Humanoid Robotic as Assistive Rehabilitation Treatment for Children with Autism According to Objectives of Shariah in Islam, (International Journal of Academic Research in Business and Social Sciences, 10(7), 116–129).
• Dr. Md. Oliul Islam, A Study on Corruption in Bangladesh and Faith in the After Life Reduce Corruption, (IJARIIE-ISSN(O)-2395-4396, Vol-6 Issue-5 2020).
• Rifau Sulaiman Lebbe, General philosophy of Islamic law (Maqāsid) and the Common Law: Some similarities and differences, (February 21, 2021).
• Rifai Sulaiman Lebbe, Muslims in the West: Some reflections on their duties and responsibilities, (February 23, 2021).
• Note: In Feb. and March 2021, Dr. Rifai Sulaiman Lebbe posted numerous papers on Islamic law to the SSRN data base. Links to them all may be found here. [Updated].

9th Circuit Refuses Emergency Injunction For Apache Tribal Members

In a 2-1 decision in Apache Stronghold v. United States, (9th Cir., March 5, 2021), the U.S. 9th Circuit Court of appeals refused to issue an injunction pending appeal in the attempt by Apache tribal members to prevent the transfer of sacred Apache ceremonial ground to Resolution Copper. At the beginning of this month, the Biden Administration delayed the pending transfer by withdrawing a previous environmental impact statement. (See prior posting.) The 9th Circuit majority said in part:

The Government has averred that USFS “will not proceed to convey any right, title, and/or interest... to Resolution Copper” until after publication of a new FEIS, which will take “months.” The Government has also stated, under penalty of perjury, that USFS “will provide 30-days advance notice” to Apache Stronghold prior to the publication of a new FEIS. These representations mean that Apache Stronghold has not shown that it “needs relief within 21 days to avoid irreparable harm” pursuant to its request for an emergency stay.

Judge Bumatay filed a lengthy dissent, saying in part:

We are asked to trust the Government that, left to its own devices, it will not transfer the land to Resolution Copper in the near future. Faced with such a substantial harm to the Western Apaches’ free exercise rights, we should require more than the Government’s say-so.

EEOC General Counsel Fired By Biden

Yesterday morning, President Biden, through an e-mail (full text) from the White House Office of Personnel, requested the resignation of Equal Employment Opportunity Commission General Counsel Sharon Gustafson. Gustafson was a Trump appointee. As pointed out by the Washington Post in its report on these developments:

Gustafson was confirmed by the Senate to a four-year position in August 2019. She had raised the hackles of civil rights, LGBTQ and women’s groups during her confirmation hearing, by what they saw as “evasive” answers she gave about the rights of LGBTQ workers.

In a lengthy letter to the President (full text) just hours after the request for her resignation, Gustafson refused to resign. Her letter reads in part:

I am transmitting with this letter my Work Group's "Religious Discrimination in Employment: General Counsel Listening Sessions Final Report." This report and a related press release were published on the EEOC's website on January 13, 2021. On February 4. 2021-- shortly after your inauguration-- the report and press release were removed from the EEOC's website.... I can only assume that my resignation would be followed by similar suppression of our work promoting religious freedom.

The White House Office of Personnel responded yesterday to Gustafson with a brief e-mail (full text) informing her that her employment was terminated as of 5:00 pm that day.

Washington Supreme Court Rejects Facial Challenge To Discrimination Exemption for Non-Profits

In Woods v. Seattle's Union Gospel Mission, (WA Sup. Ct., March 4, 2021), the state of Washington's Supreme Court rejected a facial challenge to an exemption in the state's anti-discrimination law for religious and other non-profit corporations. Plaintiff was denied employment by a Christian legal aid program for the homeless because he was in a same-sex relationship. The majority held that because reasonable grounds exist to distinguish non-profit corporations from others, the exemption does not, on its face, violate Article I, §12 of the state constitution that prohibits any law granting privileges or immunities which are not equally available to all. The majority concluded, however, that the law may be unconstitutional as applied to plaintiff in this case.  It held that courts should look to federal case law on the ministerial exception doctrine to determine this:

Here, Woods seeks employment as a lawyer with SUGM. SUGM has rejected his application because it maintains that all employees’ first duty is to minister. In order to balance Woods’ fundamental rights with the religious protections guaranteed to SUGM, we hold that article I, section 12 is not offended if WLAD’s exception for religious organizations is applied concerning the claims of a “minister” as defined by Our Lady of Guadalupe and Hosanna-Tabor.

Justice Yu filed a concurring opinion which was joined by Chief Justice Gonzalez. Justice Stephens filed an opinion dissenting in part, joined by Justice Fairhurst.

Puzzling Opinion Dismisses Suit Against Archdiocese and Counselor On Ecclesiastical Abstention Grounds

In a somewhat puzzling opinion in Mosby v. Kleinguetl (TX App., March 4, 2021), a Texas state appellate court affirmed a trial court's dismissal on ecclesiastical abstention grounds of a husband's suit against the Catholic Archdiocese of Galveston-Houston and one of its marriage counselors. Claiming, among other things, breach of fiduciary duty and negligent counseling, plaintiff alleged that his wife developed a relationship with the counselor and that she eventually sued for divorce.  Despite its affirmance of the trial court's dismissal, the appellate court's opinion seems to conclude that the ecclesiastical abstention doctrine does not apply:

[T]he allegations at issue here do not clearly intrude upon a religious matter or interfere with the Archdiocese’s ability to manage its internal affairs. Mosby does not allege that the conduct forming the basis of his claims (i.e., the “family and marriage counseling” Kleinguetl provided to Cynthia) was grounded in religious doctrine or otherwise undertaken pursuant to guidance from the Archdiocese. Instead, Mosby alleges that Kleinguetl was having a “personal relationship” with Cynthia and had a history of “inappropriate relationships with others”. These general allegations do not implicate any religious standards or indicate that judicial resolution of this dispute will encroach upon the Archdiocese’s internal affairs or religious doctrine. Therefore, they do not affirmatively demonstrate that the underlying dispute is inherently ecclesiastical as necessary to warrant First Amendment protection.

The court went on:

Construing Mosby’s allegations liberally and taking them as true, we cannot unequivocally hold that Mosby’s pleadings demonstrate an incurable jurisdictional defect....

Then the court concluded: 

Here, Mosby had an opportunity to cure the jurisdictional defects and did not do so. After Kleinguetl and the Archdiocese filed their pleas to the jurisdiction, Mosby twice amended his pleadings but failed to present any additional facts sufficient to invoke the trial court’s jurisdiction. Mosby is not entitled to an additional opportunity to replead.

Southeast Texas Record reports on the decision.

Synod May Take Over Property of Defunct Church

In Central/Southern Illinois Synod of the Evangelical Lutheran Church in America v. Trinity Lutheran Church of Kankakee, (IL App., March 2, 2021), an Illinois state appellate court held that the parent Synod was entitled to take over the property of a local church whose membership had diminished to the point that it was no longer holding worship services or exercising governance functions. Both the constitution of the Synod and of the congregation provided that the Synod should take over the congregation's property in such cases. However one of the remaining church members changed the locks and prevented the Synod from entering. The court said in part:

Pursuant to both constitutions, the Synod Council determined that Trinity Lutheran was no longer viable and, thus, ceased to exist. Such a decision was within the province of the Synod Council and is an ecclesiastical matter involving church doctrine, polity, and practice. Therefore, we will defer to such a finding.

5th Circuit Hears Oral Arguments On Enjoining Health Care Anti-Discrimination Rule

 The U.S. 5th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Franciscan Alliance v. Cochran. In the case, a Texas federal district court vacated and remanded for further consideration a rule issued by the Obama administration under the Patient Protection and Affordable Care Act that prohibits discrimination on the basis of gender identity or termination of pregnancy in health care programs that receive federal financial assistance. (See prior posting.) As reported by Courthouse News Service, the appeal heard yesterday focused on whether the district court should also have issued an injunction against future enforcement of the rule. The district court declined to do so because the Trump Administration agreed that the rule was invalid. The original plaintiffs argued that the rule would force them to perform gender transition surgery and abortions in violation of their religious beliefs.