Religion Clause

Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
  1. The Department of Justice announced yesterday that it has filed suit against the city of Troy, Michigan alleging that it has violated the Religious Land Use and Institutionalized Persons Act in denying zoning approval for a mosque to be built by Adam Community Center.  The complaint (full text) in United States v. City of Troy, Michigan, (ED MI, filed 9/19/2019), contends in part:
    Troy specifically violated RLUIPA by: (a) imposing an unjustified substantial burden on Adam’s exercise of religion when it denied Adam’s variance requests, 42 U.S.C. § 2000cc(a)(1); and (b) requiring places of worship to abide by more onerous setback and parking restrictions than nonreligious places of assembly, id. § 2000cc(b)(1).
    Detroit Free Press reports on the lawsuit.
  2. As previously reported, after the Department of Justice dropped its appeal of the district court's decision in United States v. Nagarwalawhich held the federal ban on female genital mutilation (18 USC Sec. 116(a)) unconstitutional under the Commerce Clause, the House of Representatives filed a motion to intervene in the case to defend the constitutionality of the statute. The Detroit Free Press now reports that the U.S. 6th Circuit Court of Appeals last week denied the House's motion to intervene and granted the Justice Department's motion to voluntarily dismiss the appeal.
  3. A lawsuit was filed yesterday in an Illinois federal district court by Wheaton College students who are members of the Chicago Evangelism Team. The suit challenges limitations on the areas in Millennium Park in which they can engage in open air evangelism and distribute literature. The complaint (full text) in Swart v. City of Chicago, (ND IL, filed 9/18/2019), contends that park rules improperly restrict speech and distribution of free literature in a traditional public forum, violating students' free speech and free exercise rights. Chicago Tribune reports on the lawsuit.
  4. In Ashby v. United States Department of State, (MD NC, Sept. 17, 2019), a North Carolina federal district court dismissed a suit challenging the State Department's refusal to issue a student visa to Colombian resident Jhonier Herrera, a "friend/ religious partner" of plaintiff Shon Ashby.  Ashby wished "to train and educate... Herrera in the areas of business [and] religious training." The court rejected plaintiff's argument that visa rules favor other religious institutions such as religiously affiliated colleges. and that they substantially burden his exercise of religion.  The court said in part:
    While Ashby might have plausibly alleged a disparate impact in favor of religious institutions, he fails to plausibly allege that any law or regulation is religiously targeted....
    While Ashby may have a sincere desire to train Herrera on religious topics, this desire does not itself make Herrera’s presence necessary to Ashby’s religious exercise. Because Plaintiffs lack standing and fail to plausibly allege a substantial burden that prevents or inhibits them from practicing their religion, the RFRA claim will be dismissed.
  5. In Minton v. Dignity Health, (CA App., Sept. 17, 2019), a California state appellate court held that a trial court should not have dismissed a suit filed under the Unruh Civil Rights Act by transgender man whose doctor was barred by a Catholic hospital from performing a hysterectomy for treatment of his gender dysphoria.  The refusal was based on Ethical and Religious Directives for Catholic Health Care Services.  The court said in part:
    [Plaintiff] alleges that the Act was violated... when defendant cancelled the scheduled procedure at Mercy and Mercy’s president told Dr. Dawson that she would never be allowed to perform Minton’s hysterectomy at Mercy.... [T]hat refusal was not accompanied by advice that the procedure could instead be performed at a different nearby Dignity Health hospital. At that point in time... Minton was denied full and equal access to health care treatment, a violation of the Unruh Act.
    Allegedly in response to pressures brought to bear on defendant, within a relatively short period of time Ivie proposed use of the facilities at the alternative hospital. In doing so, and in making those alternate facilities available three days later, defendant undoubtedly substantially reduced the impact of the initial denial of access to its facilities and mitigated the damages to which Minton otherwise would have been entitled. However, the steps that were taken to rectify the denial in response to pressure from Minton and from the media did not undo the fact that the initial withholding of facilities was absolute, unqualified by an explanation that equivalent facilities would be provided at an alternative location.
    The Recorder reports on the decision.
  6. In Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System, (3d Cir., Sept. 17, 2019), the U.S. Third Circuit Court of Appeals, in a 2-1 decision, held that the County of Lackawanna Transit System's ban on bus advertising that promotes religious views violates the First Amendment.  Plaintiff's proposed ad that featured the word "Atheists" along with the group's name and website was rejected under this policy. The majority said in part:
    The 2013 policy’s ban on speech related to religion discriminates on the basis of viewpoint. And it is not a permissible limitation on COLTS’s forum, however that forum is characterized.
    Judge Cowen dissenting said in part:
    I do not believe that the transit system’s policy rises to the level of viewpoint discrimination. As the D.C. Circuit has recently explained, there is a critical difference between the prohibition of religious (and atheistic) perspectives on otherwise permissible subject matters—which constitutes viewpoint discrimination—and the exclusion of religion itself as a subject matter—which does not.
    WNEP Newsreports on the decision.
  7. In In re K. Y-B,(MD Ct. Special Appeals, Aug. 30, 2019), a Maryland appellate court upheld a Juvenile Court's order allowing the Baltimore City Department of Social Services to consent to the routine vaccinations of an infant in its custody, despite Muslim religious objections to vaccination expressed by the child's mother. The child, now seven moths old, was ordered into shelter care two days after his birth.  The parents had a long history of abuse and neglect of their other children. In a lengthy opinion, the court held:
    [A]  parent is free to believe as she wishes, but she cannot act on her beliefs in such a way as to pose a serious danger to the child’s life or health or impair or endanger the child’s welfare....
    [T]he juvenile court did not abuse its discretion in concluding that the State’s compelling interest in protecting the health of the Child outweighs Mother’s belief that vaccination contravenes her faith.
    Legal Newsline reports on the decision.
  8. America: The Jesuit Review yesterday published an extensive analysis of how the Trump Administration's new immigration rules defining those who may become "public charges" will adversely impact foreign religious workers.  It explains in part:
    Men and women in religious orders—like the Dominicans, Jesuits, Franciscans or Carmelites, or Buddhist monks and others whose lives are devoted to their vocation—take vows of poverty. Their religious communities provide for their simple needs. But unlike previous “public charge” criteria that considered the income of sponsors, the new rules shift attention to the income of individual applicants, which is negligible for most members of religious orders....
    Health care coverage for religious orders does not necessarily come through traditional insurance plans and may not meet D.H.S. standards for proof of insurance. For example, one cloistered community of nuns... has an agreement with a Catholic hospital system to provide health care for its members. This is not a traditional insurance plan, but they are not receiving care at the government’s expense....
    The government has suggested that this problem can be managed under the Religious Freedom Restoration Act. However... [t]he lengthy lawsuit process would make it impractical to use the R.F.R.A. as a way to help a foreign-born religious worker who is currently being denied entry due to the public charge rule.
  9. In Olsen v. Rafn, (ED WI, Sept. 13, 2019),a Wisconsin federal district court held that Northeast Wisconsin Technical College's Public Assembly Policy violates the free speech rights of plaintiff, a student at the college. The school contended that Polly Olsen violated its policy by distributing hand-made Valentines with Biblical verses on them to fellow students, friends and staff at various places on campus. The school's policy, both the one in effect at the time of plaintiff's activity and an amended one subsequently adopted, limits assembly and expressive activity to designated Public Assembly Areas. Quoting precedent, the court held that the school's limitations on speech as applied here are an "anathema to the nature of a [college], which is ‘peculiarly the marketplace of ideas'." WBAY News reports on the decision.
  10. In Brush & Nib. v. City of Phoenix, (AZ Sup Ct., Sept. 16, 2019), the Arizona Supreme Court in a 4-3 decision held that Phoenix's public accommodation law cannot be applied to force owners of a wedding and event supply business to create custom wedding invitations for same-sex ceremonies when doing so violates their religious beliefs. The several opinions generated span 78 pages.  The majority opinion of Justice Gould, focusing largely on the compelled speech doctrine, said in part:
    [Plaintiffs] have the right to refuse to express such messages under article 2, section 6 of the Arizona Constitution, as well as Arizona’s Free Exercise of Religion Act.... Our holding is limited to Plaintiffs’ creation of custom wedding invitations that are materially similar to those contained in the record.... We do not recognize a blanket exemption from the Ordinance for all of Plaintiffs’ business operations. Likewise, we do not, on jurisprudential grounds, reach the issue of whether Plaintiffs’ creation of other wedding products may be exempt from the Ordinance....
     Plaintiffs’ custom wedding invitations, and the creation of those invitations, constitute pure speech entitled to full First Amendment protection....
    Here, Plaintiffs’ objection is based on neither a customer’s sexual orientation nor the sexual conduct that defines certain customers as a class. Plaintiffs will make custom artwork for any customers, regardless of their sexual orientation, but will not, regardless of the customer, make custom wedding invitations celebrating a same-sex marriage ceremony. Thus, although Plaintiffs’ refusal may... primarily impact same sex couples, their decision is protected because it is not based on a customer’s sexual orientation.
    Justice Bolick filed a concurring opinion. Three dissenting opinions were filed, one joined by all three dissenters. The primary dissent written by Justice Bales said in part:
    Our constitutions and laws do not entitle a business to discriminate among customers based on its owners’ disapproval of certain groups, even if that disapproval is based on sincerely held religious beliefs. In holding otherwise, the majority implausibly characterizes a commercially prepared wedding invitation as “pure speech” on the part of the business selling the product and discounts the compelling public interest in preventing discrimination against disfavored customers by businesses and other public accommodations.
    Arizona Republic reports on the decision.
  11. In Britain last week, the Foreign and Commonwealth Office announced:
    The Prime Minister has today appointed Rehman Chishti MP as his new Special Envoy for Freedom of Religion or Belief. In his new position, Rehman Chishti will bring together efforts across the UK Government, with faith actors and civil society to promote the UK’s firm stance on religious tolerance abroad. The Special Envoy will continue to lead the implementation of the recommendations from the recent independent review into FCO support for persecuted Christians led by the Bishop of Truro. He will also advocate for the rights of all individuals here in the UK and around the world who are being discriminated against and persecuted for their faith or belief.
    Rehman Chishti’s appointment means that the Government will now have a dedicated person on the issue of religious freedom. The Envoy role was previously held by FCO Minister Lord (Tariq) Ahmad who will continue to champion human rights in his Ministerial capacity. This appointment will therefore increase the number of people working on the issue of religious freedom across government....
    [Thanks to Law & Religion UK for the lead.]
  12. In Theodorou and Tsotsorou v. Greece,(ECHR, Sept. 5, 2019) [decision in French], the European court of Human rights held that Greece violated Art. 12 of the European Convention on Human Rights (Right to Marry) when it annulled the marriage of applicants under a law interpreted as barring the marriage of a man to the sister of his former wife.  A Greek court annulled the ten-year marriage of the couple on the petition of the husband's first wife who he had divorced. Greek law bars marriage of individuals related by collateral descent up to the third degree. As summarized by the court's English language press release:
    [W]ith regard to the Government’s arguments concerning “biological considerations” and the risk of confusion, the Court noted that those problems did not arise in the present case. It was not clear what exactly those biological considerations involved, or the practical risk of confusion preventing the applicants’ marriage, given that they were not blood relatives and had not had children together. Furthermore, with regard to the Government’s argument that there existed a social need for communication between the members of a family and the outside world, the Court observed that the Government had not specified how the prohibition in question could assist in or serve such communication.
  13. From SSRN:
  14. Last week the State Department publicly designated two investigative officials in Russia's western Siberian city of Surgut as ineligible to enter the United States because of their involvement in persecution of Jehovah's Witnesses.  The State Department's press release said in part:
    The Department is publicly designating Vladimir Petrovich Yermolayev, the Head of the Investigative Committee in the city of Surgut, Russia, and Stepan Vladimirovich Tkach, Senior Investigator at the Investigative Committee of Surgut, Russia, under Section 7031(c) of the FY2019 Department of State, Foreign Operations, and Related Programs Appropriations Act, due to their involvement in gross violations of human rights.  Section 7031(c) provides that, in cases where the Secretary of State has credible information that foreign officials have been involved in significant corruption or a gross violation of human rights, those individuals and their immediate family members are ineligible for entry into the United States.
    ... On February 15, 2019, officers of the Surgut Investigative Committee, led by Yermolayev and Tkach, subjected at least seven Jehovah’s Witnesses to suffocation, electric shocks, and severe beatings during interrogation at the Committee’s headquarters.  This brutality stands in marked contrast to the peaceful practices of the Jehovah’s Witnesses who have been criminally prosecuted for their religious beliefs in Russia since a 2017 Supreme Court decision affirming their wrongful designation as an “extremist organization.”
  15. On September 9, the California legislature gave final passage to Assembly Concurrent Resolution 99  which calls on Californians-- and particularly its religious leaders-- to treat members of the LGBT community with greater respect.  The Resolution reads in part:
    WHEREAS, The stigma associated with being LGBTQ often created by groups in society, including therapists and religious groups, has caused disproportionately high rates of suicide, attempted suicide, depression, rejection, and isolation amongst LGBTQ and questioning individuals; and...
    WHEREAS, In a pluralistic society, people differing along spectrums of political and religious perspectives share a common responsibility of protecting the health and well-being of all children and vulnerable communities; now, therefore, be it...
    Resolved, That the Legislature calls upon religious leaders to counsel on LGBTQ matters from a place of love, compassion, and knowledge of the psychological and other harms of conversion therapy; and be it further
    Resolved, That in addressing the stigma often associated with persons who identify as LGBTQ, we call on the people of California–especially its counselors, pastors, religious workers, educators, and legislators–and the institutions of California with great moral influence–especially its churches, universities, colleges, and other schools, counseling centers, activist groups, and religious centers–to model equitable treatment of all people of the state....
    Christian Postreports on the Concurrent Resolution.
  16. In Truchon v. Procureur General du Canada, (Quebec Superior Ct., Sept. 11, 2019) [opinion in French], a Quebec trial court judge held that portions of the Canadian and of Quebec's assisted suicide laws are unconstitutional because they are too restrictive. As summarized by Canadian Press:
    Justice Christine Baudouin found in favour of two Quebecers struck by incurable degenerative diseases who'd argued they were denied a medically assisted death under laws that are discriminatory.
    Baudouin ruled invalid the Criminal Code requirement that a natural death be "reasonably foreseeable" before someone can be eligible for assisted death. The condition has prevented some people from accessing the end-of-life procedure. She also invalidated a section of the Quebec law that says people must "be at the end of life."
    But the court granted an exemption to Truchon and Gladu [the plaintiffs], allowing them to seek medical aid in dying during this period if they satisfy other conditions in the law.
  17. As previously reported, in January the Christian advocacy organization Alliance Defending Freedom filed suit in a New York federal district court challenging New York City's broad ban on conversion therapy.  The city's ban, unlike bans in other jurisdictions, covers provision of conversion therapy to adults as well as minors. ADF filed the suit on behalf of an Orthodox Jewish physician, almost all of whose patients are Orthodox Jews. Now, according to yesterday's New York Times, New York City Council, with the support of LGBT activists, is about to repeal its ban.  The move is an attempt to prevent decisions from the Second Circuit or the U.S. Supreme Court that could give constitutional protection to conversion therapy. The gay speaker of City Council, Corey Johnson, was to introduce the repeal measure yesterday. Conversion therapy for minors will remain illegal under a New York state ban. (See prior posting.)
  18. As previously reported, in June Texas Gov. Greg Abbott signed a bill which prohibits any governmental entity in Texas from taking adverse action against any person because of the person's affiliation, contribution or support for a religious organization. The law was aimed at San Antonio's exclusion of Chick-fil-A from operating at the San Antonio's airport.  The restaurant chain has been criticized for its contributions to organizations that oppose same-sex marriage. Last week, five Texas residents filed suit in a state trial court under the new law seeking an injunction to prevent the city from continuing to exclude Chick-fil-A from the airport. The complaint (full text) in Von Dohlen v. City of San Antonio, (TX Dist. Ct., filed 9/5/2019), alleges in part:
    The law of Texas prohibits governmental entities from taking “adverse action” against corporations based on their contributions to a religious organization. See Texas Gov’t Code § 2400.002. The City of San Antonio is violating this statutory command by excluding Chick-fil-A from the San Antonio airport on account of its donations to Christian organizations such as the Salvation Army and the Fellowship of Christian Athletes. 
    20. For years, liberal activists have been attacking Chick-fil-A because it gives money to Christian organizations that accept the Bible as the Word of God.
    21. Because these Bible-believing Christian organizations derive their notions of morality from the Bible rather than modern-day cultural fads, they oppose homosexual behavior and same-sex marriage.
    San Antonio Family Association issued a press release announcing the filing of the lawsuit.
  19. The Stafford County, Virginia school board yesterday voted 4-3 to update its anti-discrimination policy to cover discrimination on the basis of race, color, national origin, political affiliation, religion, sex, pregnancy, childbirth or related medical conditions, marital status, mental or physical disability, genetic information, sexual orientation, gender identity, or any other characteristic prohibited by state and/or federal law. (Full text of updated policy). As reported by Shareblue Media, the expanded policy resulted from the school's handling of an active shooter drill last year. While other students were sent to wait in their locker rooms, the transgender student was left to wait in the gym because staff did not know which locker room to assign her to.
  20. A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Arlene's Flowers, Inc. v. State of Washington, (Sup. Ct., cert. filed 9/11/2019).  In the long-running case, the Washington state Supreme Court held that a florist shop's refusal to provide flowers for a same-sex wedding constitutes sexual orientation discrimination under the Washington Law Against Discrimination, and that enforcement of the law does not violate the constitutional rights of the floral shop owner. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.