Cert. Filed In Scientology Arbitration Case

A petition for certiorari (full text) was filed last week in Church of Scientology International v. Bixler, (cert. file 7/19/2022). In the case, a California state appellate court held that former Church of Scientology members were not bound by their agreement to submit all disputes with the Church to the Church's Religious Arbitration system when the dispute involves conduct that occurred after plaintiffs left the Church. (See prior posting.) Law & Crime reports on the filing.

Recent Articles of Interest

From SSRN:

• SpearIt, Muslims in American Prisons: Advancing the Rule of Law Through Litigation Praxis, (Journal of Islamic Law, Vol. 3 (2022)).
• Richard Luedeman, Voting as a Genuinely Religious Act in a World of Free Exercise Maximalism, (UC Davis Law Review Online (2021)).
• Lael Daniel Weinberger, Is Church Autonomy Jurisdictional?, (Loyola University Chicago Law Journal, Forthcoming).
• Teresa Stanton Collett & Paul Benjamin Linton, Brief Amicus Curiae of the Prolife Center at the University of St. Thomas in Support of Petitioners in Dobbs v. Jackson Women's Health Center, (U of St. Thomas (Minnesota) Legal Studies Research Paper Forthcoming).
• F. Lee Francis, Who Decides: What the Constitution Says about Parental Authority and the Rights of Minor Children to Seek Gender Transition Treatment, (Southern Illinois University Law Journal, Forthcoming).

From SmartCILP:

• Charlotte Garden, Ministerial Employees and Discrimination without Remedy, 97 Indiana Law Journal 1007-1024 (2022).
• Mark Goldfeder, Defining Antisemitism, 52 Seton Hall Law Review 119-198 (2021).

11th Circuit Remands Establishment Clause Case That Had Relied On Lemon Test

In Rojas v. City of Ocala, Florida, (11th Cir., July 22, 2022), the U.S. 11th Circuit Court of Appeals vacated and remanded a district court's Establishment Clause decision that had relied on the now-repudiated Lemon test. In the case, plaintiffs who are atheists and humanists sued, challenging a prayer vigil that was co-sponsored by the Ocala police department held in response to a shooting spree that had injured several children. The district court granted summary judgment to plaintiffs.  On appeal, the court said in part:

When the district court granted summary judgment, it believed that the analytical framework articulated in Lemon v. Kurtzman ... was the controlling law. Even though many Justices soured on Lemon over the years, the Court seemingly could not rid itself of that much-maligned decision. Justice Scalia colorfully described Lemon as “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”...

After this appeal was filed, however, the Supreme Court drove a stake through the heart of the ghoul and told us that the Lemon test is gone, buried for good, never again to sit up in its grave. Finally and unambiguously, the Court has “abandoned Lemon and its endorsement test offshoot.” Kennedy v. Bremerton Sch. Dist. ... (2022)....

[T]he Supreme Court has definitively decided that Lemon is dead — long live historical practices and understandings....

We remand this case to the district court to give it an opportunity to apply in the first instance the historical practices and understandings standard endorsed in Kennedy.

Ecclesiastical Abstention Doctrine Deprives Civil Court Of Jurisdiction Over Seventh-Day Adventist Church Dispute

In In re Texas Conference of Seventh-Day Adventists, (TX App, July 21, 2022), a Texas state appellate court held that the eccleisastical abstention doctrine deprives the trial court of jurisdiction over a dispute between the Fort Worth Northwest Seventh-Day Adventist Church and the Conference, its hierarchical parent body. At issue was control over the Church's funds and property. The court said in part:

The Northwest Church’s suit asks civil courts to resolve its dispute with the Conference based on its rights under the Church Manual. This is precisely the type of civil court inquiry that the First Amendment prohibits....

The Northwest Church’s case is not one in which it has separated from its hierarchical organization and in which it and the hierarchical organization dispute who owns what.... Rather, this is a dispute over who has the authority to make decisions on behalf of the Northwest Church....

Admittedly, under the Church Manual, the local church funds appear to belong to the “local church”.... Nevertheless, the dispute is over whether the Northwest Church is the “local church,” as contemplated by the Church Manual, when the Conference has not recognized the newly elected governing board.

Whether the Conference acted in a manner consistent with the Church Manual is an internal matter for the Northwest Church and the Seventh-Day Adventist hierarchy to resolve.... The Northwest Church’s claims are inextricably intertwined with matters of doctrine or church governance....

11th Circuit Upholds Georgia's LIFE Act

In Sistersong Women of Reproductive Justice Collective v. Governor of State of Georgia, (11th Cir., July 20, 2022), the U.S. 11th Circuit Court of Appeals upheld the constitutionality of Georgia's Living Infants Fairness and Equality (LIFE) Act which amends the definition of "natural person" in Georgia's statutes to mean "any human being including an unborn child". It also prohibits abortions after a fetal heartbeat is detected. The court said in part:

The district court entered a summary judgment for the abortionists challenging the Georgia law and permanently enjoined state officials from enforcing it. But intervening Supreme Court precedent, Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022), makes clear that no right to abortion exists under the Constitution, so Georgia may prohibit them. And the expanded definition of natural person is not vague on its face. We vacate the injunction, reverse the judgment in favor of the abortionists, and remand with instructions to enter judgment in favor of the state officials.

Reporting on the decision, CBS News also noted:

Normally, the ruling wouldn't take effect for weeks. But the court issued a second order Wednesday allowing the law to take effect immediately.

11th Circuit Denies En Banc Review In Conversion Therapy Case

In Otto v. City of Boca Raton, Florida, (11th Cir., July 20, 2022), the U.S. 11th Circuit Court of Appeals, by a vote of 7-4,, denied an en banc rehearing in a case in which a panel decision of the court struck down a conversion therapy ban.  (See prior posting). Concurring and dissenting opinions spanning 110 pages accompanied the brief order denying review. Judge Grant, joined by Judges Branch and Lagoa filed an opinion concurring in the denial, saying in part:

The perspective enforced by these local policies is extremely popular in many communities. And the speech barred by these ordinances is rejected by many as wrong, and even dangerous. But the First Amendment applies even to—especially to—speech that is widely unpopular....

Today’s dissenters decry the result of the panel decision—namely, that speech they consider harmful is (or may be) constitutionally protected. But to reach their preferred outcomes, they ask us to ignore settled First Amendment law

Judge Jordan joined by Judge Wilson, and joined in part by Judges Rosenbaum and Pryor, said in part:

[T]he panel majority in this preliminary injunction appeal ignored the clear error standard of review—never acknowledging or applying it —and substituted its own factual findings for those of the district court on important issues.

Judge Rosenbaum joined by Judge Pryor filed a dissenting opinion, saying in part

By incorrectly labeling talk therapy mental-healthcare treatments as mere “conversation” and “not medical at all,” the panel opinion necessarily subjects to First Amendment strict scrutiny all government regulations that require licensed mental-healthcare professionals to comply with the governing substantive standard of care in administering talk therapy. And that scrutiny rings the death knell for any such regulation.

San Francisco Permit Requirement For Park Church Services Enjoined

In Stewart v. City and County of San Francisco, California, (ND CA, June 22, 2022), a California federal district court issued a preliminary injunction barring enforcement of a provision in the San Francisco Park Code requiring a permit for any religious event held in a public park involving 50 or more persons. The court found the provision to be a content-based restriction that triggers strict scrutiny, and concluded that it violates free speech and free exercise protections. However the court upheld a provision requiring a permit for events utilizing sound amplification equipment. Plaintiffs hold their weekly church services in public parks.

DOJ Sues City For Failure To Accommodate Seventh Day Adventist Employee

A Title VII lawsuit was filed last week by the Justice Department on behalf of a newly-hired Seventh Day Adventist detention officer against the city of Lansing, Michigan. The complaint (full text) in United States v. City of Lansing, Michigan, (WD MI, filed 7/15/2022) alleges that the city "failed to provide [the officer] with a reasonable accommodation or to show undue hardship and terminated her employment because she could not work from Friday sundown through Saturday sundown due to her religious observance of the Sabbath..." The Justice Department issued a press release announcing the filing of the lawsuit.

Non-Profits Are Seeking IRS Classification As "Churches"

Both Baptist News Global and ProPublica have recently published lengthy investigative articles on the growing number of non-profit entities that have sought classification by the IRS as a "church" or "association of churches" or an "integrated auxiliary of a church." this exempts them from filing the annual Form 990 required of other non-profits. Form 990 disclose income, expenditures and compensation of officers, directors and key employees.

Britain's Sexual Offenses Act Now Outlaws Child Sexual Abuse By Religious Instructors

Britain's Sexual Offenses Act 2003 (Secs. 16-19) criminalizes abuse of a position of trust by engaging in sexual activity with a child or causing a child to witness sexual activity.  As reported by Law & Religion UK, amendments to the Act which expand the definition of "position of trust" came into effect on June 28. The Act now defines "position of trust" to include any person who knowingly coaches, teaches, trains, supervises or instructs on a regular basis in a sport or a religion. Religion is defined to include

(a) a religion which involves belief in more than one god, and (b) a religion which does not involve belief in a god.

Southwest Flight Attendant Fired Over Anti-Abortion Social Media Posts Wins $5.1M Verdict

One Mile At A Time reports on a jury verdict handed down last Thursday:

After a roughly five year legal battle, a former Southwest flight attendant has been awarded damages over being fired from the airline. Southwest claims that the flight attendant violated the company’s social media policy with her public and offensive anti-abortion posts, and she was also accused of harassing the union president, after union dues were used to attend a rally in Washington DC.

The article explains: 

 A federal jury in Texas has sided with the former Southwest flight attendant, arguing that she was unlawfully discriminated against for her sincerely held religious beliefs. Furthermore, the jury found that the union did not fairly represent her and retaliated against her for expressing her views.

If this stands, Carter will be awarded $5.3 million, including $4.15 million from Southwest Airlines and $1.15 million from Transportation Workers Union of America (TWU) Local 556. This consists primarily of punitive damages, but also consists of some back pay from the airline.

Recent Articles of Interest

From SSRN:

• Adnan Zulfiqar, The Dominion of Rights, the Resistance of Duties, (Rutgers Journal of Law and Religion, Vol. 22, No. 3, 2022).
• Francis Beckwith, Separated at Baptism: What the Mortara Case Can Teach Us About the Rejection of Natural Justice by Integralists and Progressives, (Brigham Young University Law Review, Vol. 47, No. 4, 2022).
• Dov Fox, Medical Disobedience, (July 2, 2022).
• Cometan, Recognition of Religion or Belief (RoRB), (June 29, 2022).
• Intisar A. Rabb, Metacanons: Comparative Textualism, (May 2022).
• James Diamond, An Uncomfortable Truth: Law as a Weapon of Oppression of the Indigenous Peoples of Southern New England,(Roger Williams University Law Review, Vol. 27, No. 2, 2022).
• Rosemary Teele Langford & Malcolm Edward Anderson, Charity Trustees: Governance Duties and Conflicts of Interest, ((2022) 28 (7) Trusts and Trustees).

From SSRN (Islamic Law):

• Intisar A. Rabb, Legal Canons—In the Classroom and in the Courtroom or, Comparative Perspective on the Origins of Islamic Legal Canons, 1265–1519, (Villanova Law Review, Vol. 66, No. 831-63, 2021).
• Intisar A. Rabb, Enforcement and Punishment in Medieval Islamic Law, (in Cultural History of Crime and Punishment in the Medieval Age (Sarah McDougall, Karl Shoemaker eds., Bloomsbury 2022) [Forthcoming]).
• Sandra Antoniazzi, Islamic Banks and the European Banking System: Critical Profiles and Law, (European Banking Institute Working Paper Series No 125, 2022).
• Adnan Zulfiqar, The Immorality of Incarceration: Between Jāvēd Aḥmad Ghāmidī and Angela Y. Davis, (Journal of Islamic Law [Harvard] (2022)).

From SmartCILP:

• Christian Zendri, Book Review. Erasmo da Rotterdam, Prefazioni ai Vangeli, 1516–1522, edited by Silvana Seidel Menchi, [Abstract], 61 American Journal of Legal History 335-337 (2021).

Court Enjoins DOE and EEOC From Enforcing LGBT Anti-Discrimination Interpretations Because Of Procedural Issues

 In State of Tennessee v. U.S. Department of Education, (ED TN, July 15, 2022), a Tennessee federal district court enjoined the Department of Education and the EEOC from enforcing against 20 states that are plaintiffs in the case documents interpreting Title IX and Title VII as including prohibitions on discrimination on the basis of sexual orientation or gender identity. According to the court:

Plaintiffs have demonstrated that they are likely to succeed on their claim that Defendants’ guidance documents are legislative rules and that the guidance is invalid because Defendants failed to comply with the required notice and comment procedures under the APA.

CNN reports on the decision.

Texas Sues Feds Over Abortion Guidance Given To Hospital Emergency Rooms

On Thursday, the state of Texas filed suit against the Biden administration challenging HHS's guidance to hospitals that the Emergency Medical Treatment & Labor Act requires hospital emergency rooms to perform an abortions when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition. The complaint (full text) in State of Texas v. Becerra, (ND TX, filed 7/14/2022) alleges in part:

The Biden Administration’s response to Dobbs v. Jackson Women’s Health Org.... which ended the terrible regime of Roe v. Wade, is to attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic.

The suit contends that the guidance exceeds statutory authority and violates various constitutional provisions. The Texas attorney general issued a press release announcing the filing of the lawsuit.

Wire Fraud Indictment Did Not Violate RFRA

In United States v. Stevens, (SD FL, July 12, 2022), a Florida federal district court adopted the magistrate's lengthy opinion of (May 2, 2022) and refused to dismiss a money laundering and wire fraud indictment against a religious psychic. The fraud victim, Ilena Torruella, believed that she was cursed because she possessed millions of dollars of "dirty" family money. Defendant offered to break the curse by "cleansing" the money and showing God that the victim was not attached to it. According to the court:

The key point Defendant relies upon to seek dismissal of this indictment is that Stevens never expressly promised to return Torruella’s money and Torruella never directly asked whether it would be returned before turning over her funds to Stevens.... Without an express agreement or promise to return the money, Stevens concludes that Torruella received exactly what she bargained for. The money was cleansed when Torruella gave it away.

Defendant contends that the indictment infringes her free exercise rights under RFRA and the 1st Amendment. However the magistrate's opinion rejects that contention, saying in part:

[Stevens] does not allege that any religious belief or practice of hers requires her to convert other people’s money for her benefit on false pretenses.... She instead argues that in general terms her Roma beliefs are burdened by the prosecution of this case based on her inability to practice her spiritual healing practices without government intervention. But that is too attenuated under RFRA because there are plenty of alternatives for Stevens to practice her religion....

The court concluded:

The jury must, of course, determine that her conduct was carried out with fraudulent intent. Defendant may present a defense that she was simply pursuing her religious practices, which may be antithetical with criminal intent. If the jury finds her belief to be sincere, she may be acquitted. But that is a matter for trial, not for a motion to dismiss.

Volokh Conspiracy has additional excerpts from the decision.

National Class Action and TRO Approved For Air Force Members With Religious Objections To COVID Vaccine

In Doster v. Kendall, (SD OH, July 14, 2022), an Ohio federal district court certified a national class action on behalf of all active duty and active reserve members of the Air Force and Space Force who have submitted a request for a religious accommodation from the military's COVID vaccine requirement since September 1, 2021, who were confirmed as having had a sincerely held religious belief by Air Force Chaplains, and have had their request denied or have not had action on it. The court went on to issue a 14-day temporary restraining order against enforcing the vaccine mandate against any class member. According to the court

As of June 6, 2022, the Air Force had received 9,062 religious accommodation requests, granting 86 of those requests while denying 6,343 requests....  Following such denials, the Air Force had received 3,837 appeals from Airmen whose initial religious accommodation requests were denied.... As of June 6, 2022, the Air Force has granted only 23 of those appeals, denying 2,978....

Fox19 reports on the decision.

UPDATE: On July 27, the court issued a class-wide preliminary injunction. (Full text of order.) Fox19 reports on the decision.

House Hearing On Impact of Dobbs Decision

On July 13, the House Committee on Oversight and Reform held a hearing on The Impact of the Supreme Court’s Dobbs Decision on Abortion Rights and Access Across the United States. Video of the full hearing and written transcripts of the prepared testimony of six witnesses who appeared before the Committee are available here at the Committee's website.

Michigan Governor Will Refuse To Extradite For Abortion Charges

Michigan Governor Gretchen Whitmer yesterday signed an Executive Order (full text) which provides in part:

1. The Office of the Governor will decline to assist with or effectuate the extradition of persons to or from Michigan when the charged criminal conduct is the provision of, receipt of, securing of, or assistance with reproductive health-care services, including abortion.

2. Consistent with the requirements of Article IV, Section 2, Clause 2 of the U.S Constitution, paragraph 1 does not apply when the person who is the subject of the request for arrest or surrender was physically present in the requesting state at the time of the commission of the alleged offense and thereafter fled from that state.

A press release from the Governor's office explains the motivation for the Executive Order:

Today, Governor Gretchen Whitmer signed an executive order refusing to extradite women who come to Michigan seeking reproductive health care. It also protects providers of legal abortion in Michigan, who will not have to fear being extradited for prosecution in another state for offering reproductive health care.

Currently, there are laws and legislative proposals across the country supported by the GOP that would make it felony for a woman to seek abortion care, and for a doctor to provide it.... Proposals also exist to punish a woman who decides to cross state lines to obtain an abortion. 

Jewish School Lacks Standing In Suit Claiming Religious Discrimination

In Ateres Bais Yaakov Academy of Rockland v. Town of Clarkston, (SD NY, July 12, 2022), a New York federal district court dismissed for lack of standing a suit under RLUIPA and federal civil rights laws brought by an Orthodox Jewish school ("ABY") against a New York town and a citizens group.  The suit alleged that the defendants, motivated by discrimination against Orthodox Jews, prevented the school from closing the purchase of a building owned by Grace Baptist Church. The court said in part:

... ABY fails to sufficiently establish that its claims based on the denial of the building permit application are ripe such that it suffered an “actual, concrete injury” because the ZBA never issued a final decision on ABY’s appeal and variance application. In other words, the ZBA’s nonfinal decision here does not “give rise to an injury that is sufficiently concrete and particularized to satisfy Article III.”...

... ABY fails to sufficiently allege how the Town Defendants’ conduct “constrained or influenced” GBC’s decision to stop agreeing to amend the contract and to terminate it on May 16, 2019.... Accordingly, the Court concludes that ABY has failed to sufficiently establish standing for its second alleged injury in fact with respect to the Town Defendants’ conduct. Consequently, the Court dismisses all of ABY’s claims against the Town Defendants and its § 1985 conspiracy claim against all Defendants....

Minnesota Abortion Restrictions Struck Down Under State Constitution

In Doe v. State of Minnesota, (MN Dist. Ct., July 11, 2022), a Minnesota state trial court judge in a 140-page opinion held that a series of state abortion restrictions violate various provisions in the Minnesota state Constitution. The court summarized its conclusions:

[T]his court concludes that Minnesota abortion laws relating to mandated physician care, hospitalization, criminalization, parental notification, and informed consent are unconstitutional. 

These abortion laws violate the right to privacy because they infringe upon the fundamental right under the Minnesota Constitution to access abortion care and do not withstand strict scrutiny. The parental notification law violates the guarantee of equal protection for the same reasons. The informed consent law also violates the right to free speech under the Minnesota Constitution, because it is misleading and confusing, and does not withstand intermediate scrutiny. Accordingly, this court is declaring those laws unconstitutional and permanently enjoining their enforcement.

Courthouse News Service reports on the decision.