Arkansas Enacts Conscience Protections For Medical Personnel

Last Friday, Arkansas Governor Asa Hutchinson signed SB289, the Medical Ethics and Diversity Act (full text). The law gives broad protection for medical practitioners, healthcare institutions, and healthcare payers who have religious, moral or ethical objections to participating in a particular healthcare service. Protections extend to a long list of providers, including doctors, nurses, pharmacists, researchers. counselors and student counselors. In his signing statement, the Governor said in part:

I support this right of conscience so long as emergency care is exempted and conscience objection cannot be used to deny general health service to any class of people. Most importantly, the federal laws that prohibit discrimination on the basis of race, sex, gender, and national origin continue to apply to the delivery of health care services.

ADF issued a press release regarding the signing. 

Certiorari Denied In Church's Challenge To Illinois COVID Restrictions

The U.S. Supreme Court today denied review in Elim Romanian Church v. Pritzker, (Docket No. 20-569, certiorari denied, 3/29/2021). (Order List).  In the case, the U.S. 7th Circuit Court of Appeals rejected a church's challenge to Illinois Governor J.B. Pritzker's COVID-19 orders which restrict-- or in their latest form urge restriction-- on the size of worship services. (See prior posting.)

Supreme Court Will Decide If State AG Can Intervene To Defend Abortion Statute

The U.S. Supreme Court today granted review in Cameron v. EMW Women’s Surgical Center, P.S.C., (Docket No. 20-601, certiorari granted 3/29/2021). (Order List). In the case, the U.S. 6th Circuit Court of Appeals refused to allow the state attorney general to intervene to defend the constitutionality of a Kentucky statute which banned D&E abortions prior to fetal demise. EMW Women's Surgical Ctr., P.S.C. v. Friedlander, 831 Fed. Appx. 748 (LEXIS link). The AG sought to intervene after the 6th Circuit held the statute unconstitutional and no state official would seek a rehearing or an appeal. The certiorari petition raises the issue of whether intervention should be allowed. Here is the SCOTUSblog's discussion of the grant of review and its case page on the case.

6th Circuit: Prof Has 1st Amendment Right To Refuse To Call Transgender Student By Preferred Pronoun

In Meriwether v. Hartop, (6th Cir., March 26, 2021), the U.S. 6th Circuit Court of Appeals held that Shawnee State University violated the free speech and free exercise rights of a philosophy professor when the school insisted that the Professor address a transgender student by her preferred gender pronoun. The professor objected because of his Christian religious beliefs that God created human beings as either male or female at the time of conception and this cannot be changed. Upholding plaintiff's free speech rights, the court said in part:

Never before have titles and pronouns been scrutinized as closely as they are today for their power to validate—or invalidate—someone’s perceived sex or gender identity. Meriwether took a side in that debate. Through his continued refusal to address Doe as a woman, he advanced a viewpoint on gender identity. …  In short, when Meriwether waded into the pronoun debate, he waded into a matter of public concern….

We begin with “the robust tradition of academic freedom in our nation’s post-secondary schools.” … That tradition alone offers a strong reason to protect Professor Meriwether’s speech. After all, academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

The court also reversed the trial court's dismissal of Prof. Meriwether's free exercise claim:

Meriwether has plausibly alleged that Shawnee State’s application of its gender-identity policy was not neutral for at least two reasons. First, officials at Shawnee State exhibited hostility to his religious beliefs. And second, irregularities in the university’s adjudication and investigation processes permit a plausible inference of non-neutrality.

Inside Higher Ed reports on the decision.

Massachusetts City Council Recognizes Polyamorous Domestic Partnerships

On March 8, Cambridge, Massachusetts City Council adopted amendments to the city's Domestic Partnership Ordinance allowing polyamorous domestic partnership.  The ordinance now provides that

"Domestic partnership" means the entity formed by two or more persons who meet the following criteria and jointly file a registration statement proclaiming that: 1. They are in a relationship of mutual support, caring and commitment and intend to remain in such a relationship; ... 5. They consider themselves to be a family.

CNA reporting on the amendment points out that Cambridge becomes the second town, after Somerville, to legally recognize such domestic partnerships.

British Court Holds Jehovah's Witness Parent Body Vicariously Liable For Rape By Elder

 In Trustees of the Barry Congregation of Jehovah's Witnesses v. BXB,(EWCA, March 15, 22021), Britain's Court of Appeals upheld a trial court's conclusion that the Watch Tower Bible and Tract Society of Pennsylvania and the Trustees of the Barry Congregation of Jehovah's Witnesses were vicariously liable for the rape of a woman congregant by a church elder. Justice Davies said in part:

Elders were integral to the organisation, the nature of their role was directly controlled by it and by its structure. The judge was entitled to conclude that the relationship between elders and the Jehovah's Witnesses was one that could be capable of giving rise to vicarious liability....

UK Human Rights blog has a long analysis of the decision.

Emhoff Hosts Online White House Seder

As reported by The Forward, the White House yesterday held an online Passover Seder hosted by Second Gentleman Douglas Emhoff, the first Jewish spouse of a President of Vice-President.  President Joe Biden delivered brief remarks during the one-hour program in which Los Angeles Rabbi Sharon Brous led the nearly 10,000 online viewers through the major parts of the Seder. Various White House staffers took participated in the presentation.

Scottish Court Invalidates COVID Regulations Closing Churches

In In the cause of Philip for Judicial Review of the closure of places of worship in Scotland, (Ct. Sess. O.H., March 24. 2021), Scotland's Outer House of the Court of Session held that Regulations closing places of worship during the COVID-19 pandemic violate petitioner's right to worship under Art. 9 of the European Convention on Human Rights. The court said in part:

[S]ince the Regulations do interfere with the constitutional right of the petitioners to worship, notwithstanding that they have as their primary purpose the protection of health and preservation of life, they will be beyond the constitutional competence of the respondents (at least insofar as the petitioners and the additional party are concerned) if that interference is not proportionate...

[W]ithout in any way questioning the science which underlay the respondents’ decision-making, I conclude that the respondents have failed to show that no less intrusive means than the Regulations were available to address their aim of reducing risk to a significant extent. Standing the advice they had at the time, they have not demonstrated why there was an unacceptable degree of risk by continuing to allow places of worship which employed effective mitigation measures and had good ventilation to admit a limited number of people for communal worship.... Even if I am wrong in reaching that conclusion, the respondents have in any event not demonstrated why it was necessary to ban private prayer, the reasons which were given for that recommendation being insufficient to withstand even the lowest degree of scrutiny.

Law & Religion UK and Christian Post report on the decision.

Anti-Mask Protesters Arrested At Religious Protest Assembly Sue

As reported by KREM News, three individuals who were arrested in September 2020 by Moscow, Idaho police for not wearing masks or social distancing at a protest have sued in an Idaho federal district court.  The complaint (full text) in Rench v. City of Moscow, (D ID, filed 3/24/2021) says that the arrests took place at a religious assembly organized by Christ Church "to sing praise to their God in a 'Psalm Sing' in front of the Moscow City Hall to protest the mask mandate in the Amended Public Health Emergency Order...." Plaintiffs contend that the arrests violated their free speech and free exercise rights, and say that the Public Health Order by its terms excluded constitutionally protected speech, assembly and religious activity.

Removing Roadside Cross Did Not Violate Father's 1st Amendment Rights

In Kelly v. Montana Department of Transportation, (D MT, March 23, 2021), a Montana federal district court adopted a magistrate's recommendations, 2021 U.S. Dist. LEXIS 55046 (D MT, March 9, 2021). The magistrate recommended dismissing 1st Amendment objections to the removal of a "spiritual cross" that plaintiff had erected along side of a highway in memory of his stepson.  Rejecting free speech claims, the magistrate held that "a spiritual cross erected on public land adjacent to a highway constitutes government speech." Rejecting free exercise claims, the magistrate said in part:

Kelly does not allege that the Defendants prohibited him from freely exercising his religious beliefs though private speech. Kelly alleges that the Defendants removed a spiritual cross that he had erected on public land.... [T]he spiritual cross constituted government speech. Kelly has therefore failed to state a cognizable claim under the First Amendment's Free Exercise Clause.

Prominent Ex-Mormon Sues Church For Fraud In The Use Of Members' Tithes

Suit was filed this week in a California federal district court against the Mormon church by a prominent former member who had contributed millions of dollars to it alleging fraud in the solicitation of contributions from members. The complaint (full text) in Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter Day Saints, (CD CA, filed 3/22/2021), alleges: 

For decades, in a fraudulent effort to elicit the donation of tithing funds from Mr. Huntsman and other devout Church members, the LDS Corporation repeatedly and publicly lied about the intended use of those funds, promising that they would be used for purely non-commercial purposes consistent with the Church’s stated priorities – namely, to fund missionary work, member indoctrination, temple work, and other educational and charitable activities. Behind the scenes, however, rather than using tithing funds for the promised purposes, the LDS Corporation secretly lined its own pockets by using the funds to develop a multi-billion dollar commercial real estate and insurance empire that had nothing to do with charity.

According to an RNS report on the lawsuit, plaintiff is a filmmaker, the son of a prominent philanthropist and the brother of a former governor of Utah.

The complaint says:

Mr. Huntsman ... will ... use the recovered funds to benefit organizations and communities whose members have been marginalized by the Church’s teachings and doctrines, including by donating to charities supporting LGBTQ, African-American, and women’s rights.

KUTV News has published a statement from the LDS Church responding to the allegations in which it denies using tithed funds for a commercial development.

Court Dismisses Challenge To Book Used In High School Literature Curriculum

In Coble v. Lake Norman Charter School, (WD NC, Mrch 23, 2021), a North Carolina federal district court dismissed 1st Amendment challenges to a high school's use in its literature curriculum of the award-winning book The Poet X by Elizabeth Acevedo. Plaintiffs, parents of a high school student (JHC), claim that the book is hostile to religion and disparages Catholicism. Rejecting plaintiffs' Establishment Clause argument, the court said in part:

The problem with the Cobles’ claim is that, without any factual allegations of how LNC uses The Poet X in the classroom, the Court has no ability to determine whether that specific use conveys an endorsement or disapproval of religion. The content of the book itself is not sufficient to prove a violation of the second Lemon prong even if the book’s content is disparaging toward a particular faith....

Rejecting a free exercise challenge, the court said in part:

In the present case, the Cobles claim that the potential exposure of their son to The Poet X violates the Free Exercise Clause because it violates JHC’s religious beliefs. But this claim ignores the fact that JHC was not required to read The Poet X. Rather, LNC offered an alternative to the book.... LNC’s offer of an alternative text tends to establish that LNC has done nothing to burden JHC’s religious practices.

Cert. Petition Filed In Maine Church's Challenge To COVID Limitations

A petition for certiorari (full text) was filed on Monday with the U.S. Supreme Court in Calvary Chapel of Bangor v. Mills. In the case, the U.S. 1st Circuit Court of Appeals dismissed a church's interlocutory appeal of the denial of a temporary restraining order against enforcement of the Maine governor's COVID Orders. Those orders, which have been amended since the 1st Circuit's decision, continue to limit the number of persons that can gather at a faith-based event. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the petition for review.

8th Circuit: No Qualified Immunity On Christian Student Group's Free Speech Claim

In Business Leaders In Christ v. University of Iowa, (8th Circuit, March 22, 2021), the U.S. 8th Circuit Court of Appeals held that the district court erred in granting qualified immunity to the individual defendants on plaintiff's free speech and expressive association claims. Plaintiff claims that the University selectively applied its human rights policy to prevent it from becoming a recognized student organization because the organization required its leaders to sign a statement of faith that would disqualify individuals on the basis of sexual orientation and gender identity. The court held that it is clearly established that a nondiscrimination policy neutral on its face violates a student group’s rights to free speech and expressive association if not applied in a viewpoint-neutral manner. Two judges held, however, that the district court correctly granted qualified immunity on plaintiff's free-exercise claim.

Judge Kobes dissented in part, contending that University officials should also not be granted qualified immunity on the free-exercise claim, saying in part:

[S]tate organizations may not target religious groups for differential treatment or withhold an otherwise available benefit solely because they are religious. That is what happened here. The individual defendants may pick their poison: they are either plainly incompetent or they knowingly violated the Constitution. Either way, they should not get qualified immunity.

Courthouse News Service reports on the decision.

Treasury Department Imposes Sanctions On Chinese Officials Over Uyghur Human Rights

The Treasury Department announced yesterday that its Office of Foreign Assets Control has imposed sanctions on two Chinese government officials in connection with human rights abuses against ethnic minorities in the Xinjiang Uyghur Autonomous Region. The officials sanctioned are Wang Junzheng and Chen Mingguo who are connected with arbitrary detention and severe physical abuse targeting Uyghurs and other ethnic minorities in the region.

Court Continues 30-Year Old Church Factional Dispute

In Trustees of the General Assembly of the Lord Jesus Christ of the Apostolic Faith, Inc. v. Patterson, (ED PA, March 19, 2021), a Pennsylvania federal district court, in an 85-page opinion, granted a preliminary injunction to prevent the county sheriff from carrying out a Writ of Possession and Eviction Notice against plaintiff Church and Church Corporation which holds title to Church property. As explained by the court:

The instant action is one in a long line of other cases ... over the past three decades, in state court and federal court alike. The heart of each case is the same, though the procedural postures may differ. They all seek to resolve, once and for all, a question that has been posed since 1991, after the death of the late Bishop McDowell Shelton and the subsequent schism in the Church: Who gets to control the Church and Church Corporation and their assets?

The Writ of Possession at issue grew out of a 2006 Arbitration Award which was upheld in 2017. The court concluded, however, that the case giving rise to the arbitration award was between individual leaders of the two factions seeking control. Since the Church and the Church Corporation were not parties to that action, it was not binding on them. Thus a judgment is being enforced against them when they never had the opportunity to litigate the matter.

Recent Articles of Interest

From SSRN:

• David Grenardo, Marianist Law Schools: Demonstrating The Courage To Be Catholic, (60 J. Cath. Legal Stud. ___ (2022, Forthcoming)).
• Phil Lord, Religious Legitimacy, (2021) 90:2 UMKC Law Review __ (Forthcoming).
• Rafael Domingo Osle, John Paul II's Contribution to Law, (January 28, 2021).
• Stephen R. Munzer, Silence as a Christian Experience and Practice, 62 Studia Monastica 253 (2020).
• April Duff, Dying with Dignity: The Role of Dignity in the Irish Constitution and its Implications for the Prohibition of Assisted Suicide, (UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 8/2021).
• Jeffrey A. Redding, A Decade of Transgender Rights Developments in Pakistan (2009-2019), (Droit et Cultures (Forthcoming)).
• Jareb A. Gleckel & Sheryl Wulkan, Abortion and Telemedicine: Beyond COVID-19 and the Shadow Docket, (UC Davis Law Review Online (Forthcoming 2021)).
• Gregor Maucec, Law Development by the International Criminal Court as a Way to Enhance the Protection of Minorities - The Case for Intersectional Consideration of Mass Atrocities, (Forthcoming in Journal of International Dispute Settlement).
• John Enman-Beech, Drawing Contract and Polyamory Together,  (2021) 36 Canadian Journal of Law and Society (forthcoming).
• Eric M. Zolt, Cross-Border Philanthropy: A U.S. Perspective,  (UCLA School of Law, Law-Econ Research Paper No. 21-03 (2021).
• Kari Aanestad, Kerry Gibbons & Jon Pratt, Private Foundation Grants to DAFs: Attorney General Charitable Trust Oversight Calls for Disclosure of Use of Funds, (May 18, 2020).

Canadian Province's Limits On Worship Services Are Upheld

In Beaudoin v. British Columbia, (BC Sup. Ct., March 18, 2021), a British Columbia trial court upheld against religious freedom challenges the COVID-19 Gathering and Events orders of the Canadian province's Provincial Health Officer.  The court said in part:

I find that Dr. Henry carefully considered the significant impacts of the impugned G&E Orders on freedom of religion, consulting with the inter-faith community to discuss and understand the impact of restrictions on gatherings and events on their congregations and religious practices....

Her decision was made in the face of significant uncertainty and required highly specialized medical and scientific expertise. The respondents submit, and I agree, that this is the type of situation that calls for a considerable level of deference....

There is a reasonable basis to conclude that there were no other reasonable possibilities that would give effect to the s. 2 Charter protections more fully, in light of the objectives of protecting health, and in light of the uncertainty presented by the Virus.

Although the impacts of the G&E Orders on the religious petitioners’ rights are significant, the benefits to the objectives of the orders are even more so. In my view, the orders represent a reasonable and proportionate balance.

Thus, the respondents have proven that the limits the G&E Orders place on the religious petitioners’ s. 2 Charter rights are justified under s. 1 of the Charter.

Cold Lake Sun editorializes on the decision.

9th Circuit Hears Oral Arguments In The Satanic Temple's Suit On Invocations

On Thursday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in The Satanic Temple v. City of Scottsdale. In the case, an Arizona federal district court held that the Satanic Temple had failed to prove that the denial of their request to deliver an invocation at a City Council meeting was because of their religious beliefs. The district court concluded rather that the decision was based on a policy that only allowed organizations with substantial ties to the city to deliver invocations. (See prior posting.) Law& Crime reports on the oral arguments. [Thanks to Scott Mange for the lead.]

7th Circuit Enjoins Indiana's Parent Abortion Notification Statute

In Planned Parenthood of Indiana and Kentucky, Inc. v. Box, (7th Cir., March 12, 2021), in a case on remand from the U.S. Supreme Court, the U.S. 7th Circuit Court of Appeals in a 2-1 decision struggled with the meaning of the Supreme Court's recent fragmented opinion on abortion rights-- June Medical Services LLC v. Russo.  At issue is an Indiana statute which requires a minor's parents to be notified that their daughter is seeking to use the judicial bypass route to obtain an abortion.  The only exception, regardless of the minor's maturity, is a judicial finding that parental notice is not in the  minor's best interest. The court spent much of its opinion attempting to apply the test in Marks v. United States for how to make sense of a fragmented Supreme Court decision with no single majority opinion.  Affirming the district court's grant of a preliminary injunction against enforcement of the statute, the court said in part:

In June Medical, there is one critical sliver of common ground between the plurality and the concurrence: Whole Woman’s Health was entitled to stare decisis effect on essentially identical facts..... The Marks rule therefore applies to that common ground, but it applies only to that common ground. That application offers no direct guidance for applying the undue burden standard more generally, let alone to the quite different parental notice requirement in this case. That absence of guidance answers our question: the Marks rule tells us that June Medical did not overrule Whole Woman’s Health. That means Whole Woman’s Health remains precedent binding on lower courts.

Judge Kanne filed a dissenting opinion saying in part:

The plurality in June Medical held that the Louisiana law at issue was unconstitutional because it “poses a ‘substantial obstacle’ to women seeking an abortion [and] offers no significant health-related benefits.”... The Chief Justice’s concurrence, however, simply held only that the Louisiana law was unconstitutional because, under Whole Woman’s Health, it “imposed a substantial obstacle.” ...

Thus, the finding of a “substantial obstacle” is the common denominator between the opinions—and we should correct our previous decision by abandoning the added weighing of benefits that Chief Justice Roberts explicitly rejected.

Reporting on the decision, ABA Journal points out:

The decision puts the 7th Circuit at odds with the ... 8th Circuit at St. Louis and the 6th Circuit at Cincinnati.

[Thanks to Tom Rutledge for the lead.]