Religion Clause

Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
  1. In a Tentative Ruling (full text [scroll down]) in Leary v. Teen Rescue,(Shasta Cty. Calif. Super. Ct., Nov. 18, 2019), a California state trial court judge refused to enter a preliminary injunction that would shut down a residential facility for abused and neglected children.  The state claims that the facility should be regulated under state law as a "community care facility." The court agrees that the state has a reasonable probability of prevailing at trial on this claim, but says that there remains a significant religious free exercise question:
    Defendants argue that they choose to address behavior through faith-based practices. Compliance with the Act and licensure would impact Defendants’ rights to free exercise of religion, in that 22 CCR § 80072 mandates that students be “free to attend religious services or activities of his/her choice and have visits from the spiritual advisor of his/her choice.” Further, “Attendance at religious services, in or outside of the facility, shall be on a completely voluntary basis” (“the spiritual exploration provisions”). Additionally, the Act provides students the right “[t]o be free from acts that seek to change his or her sexual orientation . . .” (“the SOCE prohibit”). The Act requires staff be trained in “[c]ultural competency and sensitivity in issues relating to the lesbian, gay, bisexual, and transgender communities” (“the LGBT cultural competency requirement”)....
    The State advances the argument that requiring community care facilities to train staff in sensitivity to LGBTQ issues is neutral and does not infringe on or restrict religious practices. Defendants hold beliefs that are in direct opposition to this requirement.....
    There is no question that the protection of children – especially the particularly sensitive population of children Defendants seek out for their facility – is of great importance. However, the Court must also consider the foreseeable harm to the defendants in granting this injunction. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns (1976) 427 US 347, 373. The Court is concerned about the potential impact of the preliminary injunction on Plaintiff’s First Amendment freedoms, and the attendant presumption of irreparable injury to Defendants if this injunction were to be granted prior to a full determination of the facts of the case. 
    Pacific Justice Institute issued a press release announcing the decision.
  2. In City and County of San Francisco v. Azar, (ND CA, Nov. 19, 2019), a California federal district court set aside rules adopted earlier this year by the Department of Health and Human Services to give additional protection to conscience rights of health care providers. The court said in part:
    With the minor exceptions noted below, the new rule is purely an interpretive rule, not a legislative rule. An agency, of course, must interpret a statute under its care. But an interpretation, even if cast in the form of a regulation, is nothing more than that — an interpretation. The statute itself is what has the force of law, not the interpretation. No interpretation can add or subtract from the actual scope of the statute itself. If the agency misconstrues a statute, then the statute controls, not the interpretation.....
    ... Congress tried to strike a balance between two competing considerations. One consideration was recognition that, due to religious or ethical beliefs, some doctors, nurses, and hospitals, among others, wanted no part in the performing of abortions and sterilizations, among other medical procedures, and Congress wanted to protect them from discrimination for their refusal to perform them. The countervailing consideration was recognition of the need to preserve the effective delivery of health care to Americans, including to those seeking, for example, abortions and sterilizations. Every doctor or nurse, for example, who bowed out of a procedure for religious or ethical reasons became one more doctor or nurse whose shifts had to be covered by someone else, a burden on the healthcare system. Congress struck a balance between these two opposing considerations.
    In reading the rule in question, the Court sees a persistent and pronounced redefinition of statutory terms that significantly expands the scope of protected conscientious objections. As laudable as that sounds, however, it would come at a cost — a burden on the effective delivery of health care to Americans in derogation of the actual balance struck by Congress.
    California's Attorney General issued a press release commenting on the decision.  KPIX5reports on the decision.
  3. Church Militant reports on a lawsuit in Argentina by a transgender man who contends that Archbishop Mario Cargnello is required by Argentina's Gender Identity Law to change his name on Church baptismal and confirmation records.  When in 2018 the archbishop refused, activist Alba Rueda sued. A lower court dismissed the case saying it is a religious matter. On Nov. 14, an appeals court affirmed the dismissal. Rueda plans to take the case to the country's Supreme Court.
  4. In Indig v. Village of Pomona, (SD NY, Nov. 18, 2019), a New York federal district court refused to dismiss equal protection and Fair Housing Act claims brought by plaintiffs who contend that the Village has enforced municipal codes in a discriminatory manner as part of a broader campaign against Orthodox Jews residing in the Village. Plaintiffs' free exercise and New York Civil rights Act claims, however, were dismissed.
  5. Suit was filed in a Kentucky federal district court this week raising a pre-enforcement challenge to the application of Louisville, Kentucky's public accommodation ordinance to plaintiff's wedding photography business. The complaint (full text) in Chelsea Nelson Photography LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 11/19/2019) says that plaintiff "only accepts requests for services which are consistent with her editorial, artistic, and religious judgment."  This precludes her from providing photography and social media services for same-sex weddings. The complaint alleges that enforcement of the ordinance against plaintiff would violate her free speech, free exercise and due process rights. ADF issued a press release announcing the filing of the lawsuit.
  6. Becket yesterday released its first Religious Freedom Index which it describes in part as follows:
    The Religious Freedom Index is designed to give a 30,000-foot view of changes in American attitudes on religious liberty by surveying a nationally representative sample of 1,000 American adults. Rather than focus on the most hot-button issues dominating the news-cycle, questions asked in the Index cover a wide spectrum of religious liberty protections under the First Amendment. The responses to these questions statistically group into six dimensions: 1) Religious Pluralism, 2) Religion and Policy, 3) Religious Sharing, 4) Religion in Society, 5) Church and State, and 6) Religion in Action. The composite Index score is the average score of these dimensions.
    A Key Finding was:
    In 2019, the majority of Americans accept and support religious freedom as a fundamental right as indicated by the Index score of 67. Although that fact may not come as a surprise, the Index clearly shows that Americans support a much broader array of religious freedom principles than current news cycles might suggest.
  7. Yesterday the U.S. Commission on International Religious Freedom issued a report titled The Religious Freedom Implications of the National Register of Citizens in India. The report says in part:
    On August 31, 2019, the government of the northeastern Indian state of Assam released an updated National Register of Citizens (NRC), originally introduced in 1951 as part of India’s first census. The purpose of updating this list was to verify the citizenship of Assam residents and aid the government in identifying so-called “infiltrators” or “illegal immigrants.” India’s Union government supported this effort, and both national and state leaders from the ruling Bharatiya Janata Party (BJP) have pushed for the implementation of an NRC in other states..... Union Home Minister Amit Shah has expressed his desire to implement a nationwide NRC.
    The final NRC list excluded 1.9 million Assam residents. Moreover, a number of domestic and international organizations have expressed concern that the NRC is a targeted mechanism to disenfranchise Assam’s Bengali Muslim community, implicitly establishing a religious requirement for citizenship and potentially rendering large numbers of Muslims stateless.
  8. A hearing officer's Nov. 11 report (full text) to New York City's Regional Emergency Medical Services Council recommends that an Orthodox Jewish women's organization known as Ezras Nashim be granted a certificate of need so it can operate an ambulance service directed to Orthodox Jewish women.  The Forward sets out some background:
    Ezras Nashim, the female team which serves as emergency medical technicians in Boro Park, Brooklyn, was founded because Orthodox women in that community are often uncomfortable with male medics, even in emergencies. Their religious value of modesty prohibits men and women to touch unless they are husband and wife or close relatives.
    Founded with little money and in the face of much community opposition in 2014, Ezras Nashim has operated by driving around in its members’ own cars. Now they’re trying to grow.... But the Orthodox-run male EMT service, Hatzolah, that opposed their founding is trying to block the ambulance application. The fight over the ambulance reflects a much broader communal debate about female modesty, and who gets to define it — men or women?
    The Hearing Officer said in part:
    A conservative approach would deny the request for an ambulance certificate on the strength of faster response times by all-male Hatzolah, or slower non-culturally aware FDNY and other responders. But that approach ignores the clear need that exists among the Orthodox Jewish women.
    The application filed by Ezras Nashim, as well as video and transcripts of the public hearing on the application are available from REMSCO's website.
  9. A lawsuit was filed last week in a New York federal district court by a pro-life pregnancy care center, a religious pro-life pregnancy care center membership organization and a Baptist church challenging the constitutionality of  New York's SB 660 which was signed into law earlier this month. the new law prohibits employers from taking action against an employee because of reproductive health care decisions by the employee or their dependents.  It bars employers from accessing information about employees' reproductive health decision making or requiring waivers by employees of their right to make such decisions. The complaint (full text) in CompassCare v. Cuomo,ND NY, filed 11/14/2019), alleges in part:
    SB 660 is a transparent attempt to meddle in the affairs of religious and pro-life organizations—including but not limited to pregnancy care centers, churches, and schools—by forcing them to employ and associate with those persons who do not share or live by the organizations’ beliefs regarding abortion, contraception, and the impropriety of sexual relations outside the context of a marriage between a man and a woman.....
    Taken together, these requirements compromise the very reason for being of these organizations, which is to promote life, oppose abortion, and teach and live a sexual ethic consistent with biblical principles.
    The suit claims that the law violates their free speech and free exercise rights. CNA reports on the lawsuit.
  10. Two families who are atheists have filed suit against a Tennessee school board challenging religious practices at a Smith County middle school and high school.  The complaint (full text) in Butler v. Smith County Board of Education, (MD TN, filed 11/18/2019), alleges in part:
    For years, [school officials] have routinely promoted and inculcated Christian religious beliefs by sponsoring religious activities and conveying religious messages to students at these two schools. School-sponsored prayer is common at athletic and other school events; religious iconography and messages adorn the walls of the schools; and teachers proselytize their Christian faith.
    ACLU of Tennessee issued a press release with more background on the case. KRTV News reports on the lawsuit.
  11. CTV News and Nanaimo Newsreported yesterday on the opening of a trial in Nanaimo, British Columbia in a suit against a school district because of a classroom demonstration of a Nuu-chah-nulth smudging ceremony. Plaintiff, the mother of a child in the elementary school classroom where the demonstration was carried out in 2015, says that the exercise violated her daughter's rights.  The daughter asked to leave the room, but her teacher told her that this would be rude and that she must stay in class and participate.  The lawyer filing the case said: "We believe that the government cannot compel citizens to participate in supernatural or religious ceremonies."
  12. AP reported yesterday that in the Canadian province of Quebec, another lawsuit has been filed challenging Bill 21. The law, passed earlier this year, prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. A grandfather clause exempts most current officials and employees. (See prior posting.) This suit was brought by Fédération Autonome de l'Enseignement, a union representing 45,000 teachers.  Challengers claim the law not only violates freedom of religion, but also equality rights because its main impact is on teachers, 75% of whom are women.
  13. In The Satanic Temple, Inc. v. City of Scottsdale,(D AZ, Nov. 18, 2019), an Arizona federal district court refused to dismiss a suit by The Satanic Temple (TST). Scottsdale City Council refused to allow the head of TST to deliver an invocation at a City Council meeting. The court, in finding that plaintiffs had standing to bring the lawsuit reasoned in part:
    The injury alleged is discrimination – that Plaintiffs have been denied the opportunity to give an invocation when other religious groups have been allowed that privilege....
    Although Establishment Clause violations can be asserted by the irreligious as well as the religious, such as a non-believing school student who is compelled to recite a prayer, Plaintiffs’ religious-discrimination claim necessarily requires that they be a religion....
    In arguing that Plaintiffs are not religious, Defendant does not rely on any specific judicial definition. Defendant instead asserts that courts have distinguished between religious and secular prayers in legislative prayer cases....
    The evidence discussed above suggests that Plaintiffs view their beliefs as religious and sincerely held. Whether Plaintiffs are religious for purposes of the merits of this case – for purposes of showing that the City’s action in the sphere of legislative prayer amounted to religious discrimination – is an issue for trial.
  14. From SSRN:
    From SSRN: (Non-U.S. Law):
    New Report:
  15. Last Thursday, the House of Representatives Tom Lantos Human Rights Commission held hearings on Jammu and Kashmir in Context. The Committee sets out the context:
    The Indian government’s decision to change the legal status of the Muslim-majority state of Jammu and Kashmir, announced in August and effective as of October 31, 2019, has attracted intense attention due to persistent reports of human rights violations, including a crackdown on freedom of expression; the arbitrary “preventive” detention of hundreds of politicians, lawyers, journalists, and other civil society figures and related fears of enforced disappearance; and the use of excessive force against protesters. The increased militarization of the security presence in the region and the economic and social consequences of the central government’s actions, including continuing restrictions on internet and phones, have also provoked widespread concern. In addition, militants have targeted migrant workers from outsider Kashmir, and have threatened businesses to maintain a protest shutdown.
    A video of the two and one-half hour hearing along with transcripts of witness' prepared statements and material submitted for the record are all available at the Commission's website. These include testimony from the U.S. Commission on International Religious Freedom focusing on religious freedom for minorities in India.
  16. Newsweek reports that a federal district court jury in San Francisco has awarded nearly $2 million in punitive and compensatory damages to Planned Parenthood:
    Planned Parenthood won a lawsuit worth $2 million Friday, after a jury found that an anti-abortion group had broken multiple laws by secretly recording and releasing manipulatively edited video footage of doctors and staff.
    The Center for Medical Progress and its founder David Daleiden were found guilty of fraud, trespassing and illegal secret recording.... Planned Parenthood says that clandestinely recorded video footage was manipulated and edited to make it appear as though they were attempting to profit off of fetal tissue donations, something they deny has ever taken place.
    The videos were taken between 2013 and 2015, and apparently feature Daleiden and co-defendant Sandra Merritt pretending to be representatives of a fake company called "BioMax."
  17. Yesterday, in a 58-page decision (full text), a 3-judge Pre-Trial Chamber of the International Criminal Court sitting at The Hague authorized an investigation into alleged crimes against humanity committed against the Rohingya Muslims by Myanmar. The Court's press release summarizes the decision:
    The Chamber concluded that the Court may exercise jurisdiction over crimes when part of the criminal conduct takes place on the territory of a State Party. While Myanmar is not a State Party, Bangladesh ratified the ICC Rome statute in 2010. Upon review of the available information, the Chamber accepted that there exists a reasonable basis to believe widespread and/or systematic acts of violence may have been committed that could qualify as the crimes against humanity of deportation across the Myanmar-Bangladesh border and persecution on grounds of ethnicity and/or religion against the Rohingya population..... 
    Noting the scale of the alleged crimes and the number of victims allegedly involved, the Chamber considered that the situation clearly reaches the gravity threshold. According to the supporting material, an estimated 600,000 to one million Rohingya were forcibly displaced from Myanmar to neighbouring Bangladesh as a result of the alleged coercive acts. Noting the victims' views, the Chamber agreed with the Prosecutor that there are no substantial reasons to believe that an investigation into the situation would not be in the interests of justice.
  18. Detroit News reports on a lawsuit filed on Wednesday in a Michigan state trial court seeking damages from priest  Rev. Don LaCuesta and Our Lady of Mount Carmel Catholic Church in Temperance, Michigan for a homily which La Cuesta delivered at the funeral of plaintiff's son last December.  At the funeral of the son, who had committed suicide, LaCuesta delivered this homily which condemned suicide, but added that God can forgive it.  The priest ignored a plea by the deceased's father during the funeral to stop.  After the funeral, the Archdiocese and the priest both issued apologies. The lawsuit alleges that plaintiff, mother of the deceased, "continues to suffer great pain of mind and body, shock, severe and permanent emotional distress … and difficulty in practicing religion through the church."
  19. In Bethel Ministries, Inc. v. Salmon(D MD, Nov. 14, 2019), a Maryland federal district court refused to dismiss a suit brought by a Christian school against state authorities claiming that the school was discriminated against on religious grounds when its eligibility to participate in the state's school voucher program (known as "BOOST") was removed. In order to participate, a school has to have a non-discrimination policy that include bans on discrimination on the basis of sexual orientation.  As explained by the court:
    Bethel does not include sexual orientation or gender identity in its statement of nondiscrimination.... In the next paragraph, the handbook says, It should be noted, however, that Bethel Christian Academy supports the biblical view of marriage defined as a covenant between one man and one woman, and that God immutably bestows gender upon each person at birth as male or female to reflect his image … faculty, staff, and student conduct is expected to align with this view....
    Irrespective of any language in the handbook, however, Bethel does not consider sexual orientation in the admissions process. The court reasoned:
    If, as it alleges, Bethel has not discriminated on the basis of sexual orientation in admissions, then it has plausibly alleged that Defendants infringed upon several of its constitutional rights. Namely, Bethel has presented a plausible case that the Advisory Board’s determination of ineligibility was motivated by the school’s religious affiliation.
  20. In Maddonna v. U.S. Department of Health and Human Services, (D SC, Nov. 13, 2019), a South Carolina federal district court dismissed for lack of standing a challenge to action by the federal government and the state that, through a waiver of anti-discrimination requirements, allowed a religiously affiliated foster care agency to place children only with evangelical Christians. The court said in part:
    Plaintiff could only conceivably attempt to assert taxpayer standing as to her claims regarding the Establishment Clause. Even then, Plaintiff has not set forth any challenge to any legislative action, but has, rather, challenged discretionary executive actions and appropriations....
     Assuming without deciding that Plaintiff’s other alleged injuries - i.e. that she was denied the opportunity to volunteer and/or become a foster parent through Miracle Hill and was discriminated against in the process - has been sufficiently alleged..., the court finds that Plaintiff has failed to establish that such injury was fairly traceable to any Defendant....  [A]t the time Plaintiff was denied the ability to volunteer with or foster through Miracle Hill in 2014, the actions of which she complains had not taken place, and, therefore, cannot conceivably have caused or even contributed to Plaintiff’s alleged harm.
    The State reports on the decision.