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Florida Governor Signs Law Barring Transgender Women From Women's High School and College Teams

Yesterday Florida Gov. Ron DeSantis signed SB 1028 (full text) into law. (Press release from Governor.) Section 12 of the law enacts the "Fairness in Women's Sports Act" which bans transgender women from competing on women's sports teams sponsored by public high schools or colleges. The Act provides in part:

(b) Athletic teams or sports designated for males, men, or boys may be open to students of the female sex.

(c) Athletic teams or sports designated for females, women, or girls may not be open to students of the male sex.

(d) For purposes of this section, a statement of a student’s biological sex on the student’s official birth certificate is considered to have correctly stated the student’s biological sex at birth if the statement was filed at or near the time of the student’s birth.

The Act gives a civil cause of action to students or schools injured by a violation of the Act. 

Pope Francis Promulgates Revised Canon Law Criminal Code

Pope Francis today announced the promulgation of a  revised version of Book 6 of the Code of Canon Law-- Penal Sanctions in the Church (full text in English). AP reports on significant changes brought about by the revised Code:

The most significant changes are contained in two articles, 1395 and 1398, which aim to address shortcomings in the church’s handling of sexual abuse. The law recognizes that adults, not only children, can be victimized by priests who abuse their authority. The revisions also say that laypeople holding church positions, such as school principals or parish economists, can be punished for abusing minors as well as adults.

The Vatican also criminalized priests “grooming” minors or vulnerable adults to compel them to engage in pornography. The update represents the first time church law has officially recognized as a criminal act the method used by sexual predators to build relationships with victims they have targeted for sexual exploitation.

The new law, which is set to take effect on Dec. 8, also removes much of the discretion that long allowed bishops and religious superiors to ignore or cover up abuse, making clear those in positions of authority will be held responsible if they fail to properly investigate or sanction predator priests.

A bishop can be removed from office for “culpable negligence” or if he does not report sex crimes to church authorities, although the canon law foresees no punishment for failing to to report suspected crimes to police.

The President and the Secretary of the Pontifical Council for Legislative Texts spoke at a news conference announcing the revisions. (full text of their remarks in Latin). [Thanks to Scott Mange for the lead.]

2nd Circuit Panel Grants Rehearing In New York Abortion Protest Case

As previously reported, in People of the State of New York v. Griepp, (ED NY, July 20, 2018), a New York federal district court, in a 103-page opinion, refused to grant the New York Attorney General a preliminary injunction against anti-abortion protesters who had been clashing with volunteer clinic escorts outside a Queens medical center.  The suit alleged that the protesters violated the federal Freedom of Access to Clinic Entrances Act (FACES), the New York Clinic Access Act (NYSCAA) and a similar New York City provision. On appeal, a 3-judge panel of the 2nd Circuit (March 10, 2021) (full text of opinions) in 3 opinions spanning 172 pages disagreed with most of the district court's conclusions. Now in an Order (full text) issued May 28, the panel vacated its opinion and granted a rehearing. The Order provides that in the meantime, the decision of the district court remains in place.

Recent Articles of Interest

 From SSRN:

• Michael A. Helfand, Religious Liberty and Religious Discrimination: Where Is the Supreme Court Headed?, (2021 University of Illinois Law Review Online 98 (2021)).
• Edward J. Larson, 46 at 100: Live by Faith and Lead with Science, (2021 University of Illinois Law Review Online 184 (2021)).
• Barbara P. Billauer, The Devil and the Dice; Job and Justice: Understanding the Misfortunes of Job in light of Modern Science & Law, (May 18, 2021).
• Swargodeep Sarkar, Protection Rohingyas through International Adjudication-Decoding Provisional Measures of International Court of Justice in The Gambia vs Myanmar, (Musamus Law Review, Volume 3, Issue 1, October 2020).
• Dr. Rifai Sulaiman Lebbe, Teaching Pedagogies of the Prophet Muhammad. Part 1 (May 19, 2021).
• Carlo A. Pedrioli, Goodridge v. Department of Public Health, Same-Sex Marriage, and the Massachusetts Supreme Judicial Court as Critical Social Movement Ally. (54 Loyola Los Angeles Law Review(2021)).

From SmartCILP:

• Marc Spindelman, Masterpiece Cakeshop's Homiletics, 68 Cleveland State Law Review 347-420 (2020).

Biden Issues Statement On Anti-Semitic Attacks

On Friday, President Biden issued a Statement (full text) on the Rise of Anti-Semitic Attacks. The Statement reads in part:

In the last weeks, our nation has seen a series of anti-Semitic attacks, targeting and terrorizing American Jews.... I will not allow our fellow Americans to be intimidated or attacked because of who they are or the faith they practice.

We cannot allow the toxic combination of hatred, dangerous lies, and conspiracy theories to put our fellow Americans at risk. As Attorney General Garland announced yesterday, the Department of Justice will be deploying all of the tools at its disposal to combat hate crimes.... We must all stand together to silence these terrible and terrifying echoes of the worst chapters in world history, and pledge to give hate no safe harbor.

Suit Challenges County's Limiting Jail Chaplain Position to Those With Christian Beliefs

Suit was filed last week in a Maryland federal district court by a Muslim volunteer jail chaplain challenging the requirements imposed by Prince Georges County, Maryland on applicants for a paid jail chaplain position. The complaint (full text) in Bridges v. Prince Georges County, Maryland, (D MD, filed 5/27/2021), alleges that provisions of the county's agreement with Prison Ministry of America violate the Establishment and Free Exercise Clauses:

Defendant PG County illegally required all applicants to sign a so-called “Statement of Applicant’s Christian Faith.”

... [The Statement] requires applicants to affirm that they “believe in one God, Creator and Lord of the Universe, the co-eternal Trinity, Father, Son, and Holy Spirit,” that “Jesus Christ, God’s Son, was conceived by the Holy Spirit, born of the Virgin Mary, lived a sinless life, [and] died a substitutionary atoning death on the cross,” and that “the Bible is God’s authoritative and inspired Word…without error in all its teachings, including creation, history, its own origins, and salvation.”

CAIR issued a press release announcing the filing of the lawsuit. AP has additional background on the lawsuit.

EEOC Adopts Resolution Condemning Antisemitism

The EEOC announced yesterday that it has unanimously adopted a Resolution (full text) condemning Antisemitism. The Resolution reads in part:

[T]he U.S. Equal Employment Opportunity Commission condemns in the strongest possible terms the recent violence, harassment, and acts of bias against Jewish persons; expresses our heartfelt sympathy to and solidarity with victims and their families; and reaffirms our commitment to combat religious, ethnic, and national origin-based harassment and all other forms of unlawful discrimination and to ensure equal opportunity, inclusion, and dignity for all throughout America’s workplaces.

Church's Suit Against Bank Dismissed On Ecclesiastical Abstention Grounds

In Eglise Baptiste Bethanie De Ft. Lauderdale, Inc. v. Bank of America, N.A., (FL App., May 26, 2021), a Florida state appellate court, in a 2-1 decision, affirmed the dismissal of a suit by a Baptist church against a bank for negligently transferring control of the church's bank accounts to the widow of the deceased pastor. The court said in part:

Here, although the Church’s negligence claims against the Banks involve a question of control over bank accounts, in order to resolve those claims the court would necessarily have to decide which faction within the Church controls the bank accounts. The only way for the court to make this determination is for it to consider the Church’s internal governance structure. “[Q]uestions of church governance are manifestly ecclesiastical.” Id. Accordingly, the trial court did not err in dismissing the case for lack of subject matter jurisdiction based on the ecclesiastical abstention doctrine.

Judge Winter dissented, saying in part:

Appellants argued that the case could be decided on neutral legal principles, and to determine otherwise goes beyond the four corners of the complaint. At best, therefore, dismissal was premature. The ecclesiastical abstention doctrine applies to church property disputes in hierarchical religious organizations. A different rule applies to churches which are congregational organizations. Based upon the correct rule, dismissal was error.

Kristen Clark Sworn In To Head Justice Department Civil Rights Division

On Tuesday, the U.S. Senate, by a vote of 51-48, confirmed Kristen Clark as Assistant Attorney General to head the Justice Department's Civil Rights Division. She was sworn in Tuesday evening, making her the first woman, and the first Black woman, to hold this position. According to NBC News:

Her nomination was met with opposition from Republicans, who accused Clarke of antisemitism. The accusation stemmed from an incident in 1994 in which the Harvard Black Students Association, a group Clarke led at age 19, invited a professor accused of promoting antisemitic conspiracy theories to speak. Clarke defended the decision at the time in the Harvard Crimson, the school's student newspaper.

She acknowledged this past January that giving the professor a platform was a mistake, and touted her record on antisemitism in her civil rights work.

Biden Issues Greeting To Buddhists Celebrating Vesak

Yesterday President Biden issued a Statement (full text) sending warm wishes to Buddhists celebrating the festival of Vesak, saying in part:

The ceremonial lighting of a lamp, the symbol of this holiday that has been celebrated for over 2,500 years, reminds us of Buddhism’s teachings of compassion, humility, and selflessness that endure today. On this day, we also commemorate the many contributions of Buddhists in America....

Florida State Settles With Catholic Student Who Was Removed As Student Senate Head

As previously reported, last October a student court at the University of Florida concluded that the University's Student Senate violated the 1st Amendment when it removed Jack Denton, a Catholic student, from the Senate presidency. Student Senate took the action because Denton criticized Black Lives Matter, the ACLU and Reclaim the Block, saying they take views opposed to Catholic teachings. Now, the University has entered a settlement agreement (full text) with Denton under which the University has agreed to pay Denton $10,000 in damages and $1050 in back pay that he would have earned if he had remained Senate president. It will also pay Denton's attorney fees of $83,950. ADF, which represented Denton, issued a press release announcing the settlement.

Kosher Restaurant Sues Certifying Agency For Defamation

New York Post reported this week on a lawsuit filed last month in a state trial court in Nassau County, New York by a kosher restaurant against the local kosher certifying agency that the restaurant used to hire. Last July, the restaurant, Chimichurri Charcoal Chicken, as well as two other establishments, switched from Vaad Hakashrus of the Five Towns and Far Rockaway to a rival, less expensive, certifying agency called Mehadrin of the Five Towns. This led the Vaad to issue a statement, alleged to be defamatory, criticizing Chimichurri's kosher food standards and urging residents not to eat there. The restaurant's lawsuit alleges:

The existing Vaad does not want competition, is afraid of the competition, and is trying to use its power to drive them — or attempt to drive them — out of business.

Chimichurri initially attempted to resolve the dispute in a rabbinical court, but the rabbis who head the Vaad did not show up for the hearing. This led the rabbinical court to grant unusual permission for Chimichurri to sue in secular court. The Vaad's lawyer told the New York Post:

Rabbis have an obligation and a right under the First Amendment to guide their communities with respect to religious issues and this does constitute a religious issue.

The Vaad has said that it has legitimate concerns about conflicts of interest.

Street Artist Sues Vatican For Using Her Image of Christ On Postage Stamp

 AP reports on a lawsuit filed in Italy last month by a Rome street artist.  Alessia Babrow has sued the Vatican for copyright infringement for using her street art image of Christ on the Vatican's 2020 Easter postage stamp.  The image was glued onto a bridge near the Vatican:

Olivieri, the Vatican’s numismatic chief, has told an Italian journalist that he took a photo of the Christ when he saw it while riding his moped one day and decided to use the image for the Easter stamp in an apparent attempt to appeal to a new generation of stamp enthusiasts.

9th Circuit Rejects Qualified Immunity For Denying NOI Inmate Participation In Ramadan

In Obataiye-Allah v. Steward, (9th Cir., May 25, 2021), the U.S. 9th Circuit Court of Appeals vacated an Oregon federal district court's holding that prison officials were shielded from damages by qualified immunity in a Nation of Islam inmate's suit complaining that he was denied participation in Ramadan in 2018. The court said in part:

Plaintiff’s declaration established that he has a sincerely held Nation of Islam religious belief and he informed defendants that weekly prayer meetings were not required for Nation of Islam Muslims. The right to free exercise was clearly established in 2018, such that a reasonable official would have known that requiring attendance at weekly prayer meetings as a condition to participate in Ramadan, without consideration of other alternatives to establish sincerity of belief, would violate the First Amendment.

The court also vacated the district court's rejection of plaintiff's equal protection "class of one" claim. 

Building Code Is Not Zoning Law Under RLUIPA

In St. Paul’s Foundation and Shrine of Saint Nicholas the Wonder Worker, Patron of Sailors, Brewers and Repentant Thieves v. Baldacci, (D MA, May 21, 2021), a Massachusetts federal district court held that revocation of a building permit to assure compliance with the state building code is not covered by RLUIPA.  Plaintiff, a monastery, sought to renovate a building to provide a space to brew beer, a chapel and and a fellowship hall.  The court concluded that a building code is not a land use regulation or zoning law. Moreover, there was no substantial burden on religious exercise.

Georgia Anti-BDS Law Held Unconstitutional

 In Martin v. Wrigley, (ND GA, May 21, 2021), a Georgia federal district court held that Georgia's anti-Israel boycott law violates contractors' free speech rights and is unconstitutionally vague. The law requires that all state contracts contain a certification that the contractor is not engaged engaged in a boycott of Israel. It was challenged by a pro-Palestinian journalist who had been invited to speak at a conference at a state university. The court said in part:

Because the burden on speech imposed by O.C.G.A. § 50-5-85 is content based, it is subject to strict scrutiny....  Even assuming that Georgia's interest in furthering foreign policy goals regarding relations with Israel is a substantial state interest, Defendants fail to explain how Martin's advocacy of a boycott of Israel as any bearing on Georgia's ability to advance foreign policy goals with Israel. The law also is not narrowly tailored to achieve the state's purported interest....

The requirement contained in O.C.G.A. § 50-5-85 that parties seeking to contract with the state of Georgia sign a certification that they are not engaged in a boycott of Israel also is unconstitutional compelled speech.

CAIR issued a press release announcing the decision.

Canadian Supreme Court Refuses To Invalidate Archbishop's Expulsion of Church Members

In Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, (Sup Ct Canada, May 21, 2021), the Supreme Court of Canada refused to invalidate an Archbishop's expulsion of five church members. The expelled members had been critical of the Archbishop's refusal to accept a recommendation of a committee investigating a movement which some saw as heretical. The members argued that their expulsions violated principles of natural justice because they had no opportunity to hear or contest the charges against them. The court held, however, that "there is no free‑standing right to procedural fairness with respect to decisions taken by voluntary associations." The court explained its decision:

Jurisdiction to intervene in the affairs of a voluntary association depends on the existence of a legal right which the court is asked to vindicate. Here, the only viable candidate for a legal right justifying judicial intervention is contract. The finding of a contract between members of a voluntary association does not automatically follow from the existence of a written constitution and bylaws. Voluntary associations with constitutions and bylaws may be constituted by contract, but this is a determination that must be made on the basis of general contract principles, and objective intention to enter into legal relations is required. In this case, evidence of an objective intention to enter into legal relations is missing. As such, there is no contract, there is no jurisdiction, and there is no genuine issue requiring a trial.

Canadian law however does permit courts to intervene in religious decisions more readily than America courts are willing to do, as illustrated by this summary by the Court:

[W]hile purely theological issues are not justiciable ..., where a legal right is at issue, courts may need to consider questions that have a religious aspect in vindicating the legal right.... For example, courts adjudicating disputes over church property may need to consider adherence to the church’s internal rules, even where those rules are meant to give effect to religious commitments.  

Law Times reports on the decision.

Opening Of Court Sessions With Prayer Violates Establishment Clause

In Freedom From Religion Foundation, Inc. v. Mack, (SD TX, May 21, 2021), a Texas federal district court held that a program devised by a Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain violates the Establishment Clause. The court concluded that attendees are impermissibly coerced into participating in religious ritual. It said in part:

The structure of the ceremony, combined with the defendant’s attendant statements about the ceremony’s purpose, is designed to give attendees “a sense of being in the presence of something . . . holy and sacred[.]” ... The Court is of the view that the defendant violates the Establishment Clause when, before a captured audience of litigants and their counsel, he presents himself as theopneustically-inspired, enabling him to advance, through the Chaplaincy Program, God’s “larger purpose.” Such a magnanimous goal flies in the face of historical tradition, and makes a mockery of both, religion and law.

FFRF issued a press release announcing the decision. First Liberty Institute which represents defendant says that it will appeal the decision to the 5th Circuit.

Another Church Seeks Emergency Injunction Against COVID Limits From Supreme Court

Last Friday, a Maine church filed a motion with the U.S. Supreme Court seeking an injunction while its petition for certiorari is pending to prevent Maine from enforcing its COVID-19 capacity restrictions on worship services. The petition (full text) in Calvary Chapel of Bangor v. Mills, (Sup. Ct. filed 5/21/2021), says in part:

For 381 days, Respondent Governor Janet Mills ... has been imposing unconstitutional restrictions on Calvary Chapel’s religious worship services while exempting myriad other activities from similar restrictions. Every religious worship gathering of Calvary Chapel from March 2020, to the present has been and is “illegal” under the Governor’s Orders. Maine imposes the most severe restrictions in the country on churches and places of worship.

Liberty Counsel issued a press release announcing the filing of the motion.