Court Refuses To Enforce Arbitration Award In Church Control Dispute

In Patterson v. Shelton, (ED PA, Aug. 11, 2017), a Pennsylvania federal district court dismissed an attempt to obtain enforcement of an arbitration award entered over ten years ago in a dispute over control of the General Assembly of the Church of the Lord Jesus Christ.  The underlying litigation began 22 years ago.  the court said in part:

Petitioner seeks to have this Court adjudicate a church controversy by confirming an Arbitration Award, albeit one that was vacated, which would require extensive inquiry into church matters. A solution to the parties’ problems involves more than mere application of neutral principles of law. It involves a deeper look into the church’s control over its leaders, how they acquire and maintain authority, and how the church is being managed.... Probing deeper into these matters would do exactly what the law prohibits courts from doing: becoming entangled in church issues.

The court also relied on several other grounds in dismissing the case.

Federal Suit By Houston Employees Seeks To Preserve Benefits For Same-Sex Couples

A suit was filed yesterday in a Texas federal district court by Houston city employees and their same-sex spouses seeking to preserve the same spousal benefits that are received by other city employees. In a decision handed down last month, the Texas Supreme Court kept alive a suit by Houston taxpayers challenging the city's extending spousal benefits to same-sex married couples. (See prior posting.) In the complaint (full text) filed yesterday in Freeman v. Turner, (SD TX, filed 8/10/2017), plaintiffs asked the federal district court to declare that the city may not rely on the Texas DOMA Statute and the Texas Marriage Amendment, which have previously been held unconstitutional by federal courts, to justify depriving city employees with same-sex spouses to to the same spousal benefits extended to other married employees. The complaint also asks the court to find that denial or withdrawal of such benefits would be unconstitutional under the equal protection and due process clauses. Texas Observer reports on the lawsuit.

Court Rejects Challenge To Permit Denial For Outdoor Weddings

In Epona v. County of Ventura, 2017 U.S. Dist. LEXIS 126533 (CD CA, Aug. 9, 2017), a California federal district court dismissed a free exercise challenge to the denial of a conditional use permit to Epona Estate  that wants to rent out its premises for outdoor weddings. Plaintiff claimed that the county selectively discriminates against weddings. (See prior related posting.)

Suit Challenges Trump's Reversal of Military Policy On Transgenders

Five members of the military filed suit yesterday challenging President Trump's announcement through Twitter that he will reverse the Obama Administration's policy that allows transgender individuals to serve openly in the military.  The complaint (full text) in Doe v. Trump, (D DC, filed 8/9/2017), contends that the White House counsel's office has turned Trump's decision into official guidance which will be communicated to the Department of Defense.  The suit alleges that Trump's directive unconstitutionally discriminates against transgender individuals, is arbitrary, and that the government is estopped from rescinding plaintiffs' rights.  NPR reports on the lawsuit.

Religious School Asserts Ecclesiastical Abstention Defense

As reported by Houston Chronicle, an Episcopal elementary school in Galveston, Texas has asserted an ecclesiastical abstention defense to a lawsuit filed by the mother of a student alleging an inadequate response by the school to bullying and racial harassment of her sixth-grade son.  Plaintiff says that 3 of her son's classmates gave her son a piece of paper folded to resemble a KKK hood, and bullied them in other ways. The school only required the students to send apology notes, and gave a one day suspension to one of the students.  The defendants' motion to dismiss (full text) in Beans v. Trinity Episcopal School, (TX Dist. Ct., filed 8/1/2017) argues:

As a religious institution, Trinity has a constitutionally-protected freedom to make decisions regarding the discipline of its students without judicial interference. The courts cannot second guess those decisions, even in the guise of purportedly "secular" causes of action arising from tort principles. Plaintiffs' claims ask the Court to intrude upon Trinity's internal affairs and governance relating to discipline, investigation, and standards of conduct—which is precisely what the ecclesiastical abstention doctrine was designed to prevent.

Differential Marriage License Requirement For Foreign Born Held Unconstitutional

In Vo v. Gee, (ED LA, Aug. 8, 2017), a Louisiana federal district court granted a permanent injunction, holding unconstitutional a Louisiana statute that treats differently applicants for a marriage license who were born outside the United States from those born in the U.S. or one of its territories.  Under the law a birth certificate must be produced in order to obtain a marriage license, but those born in the U.S. may obtain a waiver of the requirement.  Those born elsewhere, such as the Vietnamese refugee who is plaintiff in the case, are not entitled to the same type of waiver and must also provide a passport or visa.  The court concluded that this violates the Equal Protection clause as well as the substantive due process right to marriage, even though a subsequent Louisiana law allows a judicial waiver of the birth certificate requirement.  Washington Post reports on the decision.

Case Remanded For Determination of Whether Church Is Hierarchical

In  Slagle v. Church of the First Born of Tennessee, (TN App., Aug. 7, 2017), a case involving a dispute over control of church property after a split among church members, a Tennessee appellate court remanded the case to the trial court for a determination of whether the church was congregational or hierarchical. In doing so, the court noted that a church may be congregational in some respects while it is hierarchical in other respects. The court noted that here the relevant question is whether the church is congregational for purposes of ownership and control of property.

In Zimbabwe, Businessman Sues Church Leader For False Prophecies of A Debt Cancellation Miracle

In Zimbabwe, a suit was filed last week against United Family International Church leader Prophet Emmanuel Makandiwa and his wife Ruth.  According to Bulawayo24 News, former members of the church-- a businessman and his wife from the country's capital of Harare-- are seeking damages of $6.5 million (US), claiming that the Church leader through false prophecies and fraud convinced them to donate over $1.1 million (US) over a 5-year period by telling them that this would lead to a debt cancellation miracle. Plaintiffs also seek damages for various related conduct, including the Church leader's convincing them to hire a disbarred lawyer to try to recover $1.7 million from a lender.

Recent Articles of Interest

From SSRN:

• Ira C. Lupu & Robert W. Tuttle, Trinity Lutheran Church v. Comer: Paradigm Lost?, (Forthcoming, American Constitution Society for Law & Policy Supreme Court Review, October Term 2016).
• Meghan Boone, The Autonomy Hierarchy, (Texas Journal on Civil Liberties and Civil Rights, Vol. 22, No. 1, 2016).
• Julio C. Colón, Improving Dispute Resolution for Muslims in the United States, (International Conference on Dispute Resolution 2017: Modern Trends in Effective Dispute Resolution, International Islamic University of Malaysia (2017)).
• Nicholas Aroney, Individual, Community and State: Thoughts on Jane Norton, Freedom of Religious Organizations, (July 17, 2017).
• Adam Perry, Pardons and Mercy, (July 30, 2017).
• Robert L. Tsai, Obama's Conversion on Same-Sex Marriage: The Social Foundations of Individual Rights, (Connecticut Law Review, Vol. 50, 2017).

From SSRN (International and Comparative Law):

• Jaclyn L. Neo, Realizing the Right to Freedom of Thought, Conscience, and Religion: The Limited Normative Force of the ASEAN Human Rights Declaration, (Human Rights Law Review (2017, Forthcoming)).
• Jaclyn L. Neo, Secularism Without Liberalism: Religious Freedom and Secularism in a Non-Liberal State, (Michigan State Law Review, 2017).
• John Lunstroth, Human Rights and Cultural Diversity in UNESCO Bioethics, (in Advancing Global Bioethics, Vol. 6: Religious Perspectives on Bioethics and Human Rights (Tham, Joseph, Man Kwan, Kai, Garcia, Alberto (Eds.) 2017, Springer Nature, New York, Forthcoming).

From SSRN (Jewish Law):

• Raphael Cohen-Almagor, The Monopoly of Jewish Orthodoxy in Israel and Its Effects on the Governance of Religious Diversity, (in Anna Triandafyllidou and Tariq Modood (eds.), The Problem of Religious Diversity (Edinburgh: Edinburgh University Press, 2017), pp. 250-272).
• Levi Cooper, Mysteries of the Paratext: Why Did Rabbi Shneur Zalman of Liady Never Publish His Code of Law?, (Diné Israel 31 (2017): 43-84).

Recent Prisoner Free Exercise Cases

In Henry v. Bright, 2017 U.S. Dist. LEXIS 119374 (D SC, July 31, 2017), a South Carolina federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 119701, July 11, 2017) and dismissed a complaint that prison policies do not permit Buddhist inmates to use scented oils.

In Roberts v. Perry, 2017 U.S. Dist. LEXIS 120621 (WD NC, Aug. 1, 2017), a North Carolina federal district court upheld a prison's refusal to recognize "Nation of Israel" (a white-supremacist group) as an approved religion and the concomitant limit on the number of religious texts that an adherent can possess.

In Evans v. Bilal, 2017 U.S. Dist. LEXIS 121795 (ND IL, Aug. 2, 2017) an Illinois federal district court dismissed an inmate's complaint that he was not permitted to participate in religious services with other Muslim inmates.

In Butler v. California Department of Corrections, 2017 U.S. Dist. LEXIS 122724 (ND CA, Aug. 3, 2017), a California federal district court permitted an inmate to move ahead with his attempt to obtain showing of a Nation of Islam video and obtaining a NOI chaplain.

Retaliation Suit By Dismissed Nursing Student Moves Ahead

In Brown v. William Rainey Harper College, 2017 U.S. Dist. LEXIS 121333 (ND IL, Aug. 1, 2017), an Illinois federal district court allowed a student who was dismissed from the Practical Nursing Certificate Program at William Rainey Harper College to move ahead with her complaint that the action taken against her resulted from her practice of praying with her patients, as well as because of her complaints to the Department of Education's Office of Civil Rights.

3rd Circuit Rejects Secular Anti-Abortion Group's Challenge To ACA Contraceptive Mandate

In Real Alternatives Inc. v. Secretary Department of Health and Human Services, (3d Cir. Aug. 4, 2017), a 3-judge panel of the U.S. 3rd Circuit Court of Appeals held unanimously that the Equal Protection Clause does not require the government to provide a secular anti-abortion group with the same exemption from the Affordable Care act contraceptive coverage mandate as is provided to houses of worship. The majority said in part:

Real Alternatives is in no way like a religious denomination or one of its nontheistic counterparts—not in structure, not in aim, not in purpose, and not in function. We do not doubt that Real Alternatives’s stance on contraceptives is grounded in sincerely-held moral values, but “religion is not generally confined to one question or one moral teaching; it has a broader scope.”

The court by a vote of 2-1 also rejected a claim under RFRA that religious exercise of employees who oppose contraceptives, but work for secular employers, is substantially burdened when the government requires the employer to include contraceptive coverage in their health plans. Judge Jordan filed an an opinion dissenting on this issue.  He contended that requiring objecting employees to pay for insurance that includes contraceptive coverage creates a substantial burden and that the government had not used the least restrictive means to achieve a compelling governmental interest. Legal Intelligencer reports on the decision.

Cert. Filed In Wyoming's Disciplining of Judge For Refusing To Perform Same-Sex Marriages

A petition for certiorari (full text) was filed with the U.S. Supreme Court today in Neely v. Wyoming Commission on Judicial Conduct and Ethics, (cert. filed 8/4/2017).  In the case, the Wyoming Supreme Court held that a judge who, because of religious objections, refuses to perform same-sex marriages violates the Wyoming Code of Judicial Conduct. (See prior posting). ADF issued a press release announcing the filing of the petition for review.

German Court Says Church of Flying Spaghetti Monster Is Not a Religion

In Germany, a court in Frankfurt an der Oder has upheld a decision by the Infrastructure Ministry of Brandenburg to deny the Church of Flying Spaghetti Monster (FSM) a permit to put up signs announcing its religious services. As reported this week by The Vanguard, FSM contended that it should be able to erect road signs publicizing its "noodle masses" just as local Catholic and Protestant churches erect signs giving details of their worship services. However the court ruled that FSM is neither a religious community or a community with a common world view.

1st Circuit: Historic Rhode Island Synagogue Owned By New York Congregation

In a decision handed down yesterday, the U.S. 1st Circuit Court of Appeals reversed a Rhode Island federal district court (see prior posting) and held that Rhode Island's historic Touro Synagogue is owned by New York's Shearith Israel congregation. In Congregation Jeshuat Israel v. Congregation Shearith Israel, (1st Cir., Aug. 2, 2017), the court also concluded that a pair of historic silver Torah ornaments worth some $7 million are also owned by the New York congregation.  Retired Supreme Court Justice David Souter, sitting by designation on the case, wrote the opinion for the court, saying that the court should rely on the parties' own agreements which are the "instruments customarily considered by civil courts."  He said in part:

The district court approached the competing claims ... by a conscientious and exhaustive historical analysis.... Much of that history reflected, albeit without directly addressing, the doctrinal tensions between the CSI congregation, committed to preserving Sephardic practice at Touro, and the later Newport congregation that emerged from the 19th century immigration, which included a significant Ashkenazic element. The district court was scrupulous in avoiding any overt reliance on doctrinal precepts....

Nonetheless, the court's historical investigation was unavoidably an immersion in the tensions between two congregations that were not doctrinally identical.... These are circumstances in which we think that the First Amendment calls for a more circumscribed consideration of evidence than the trial court's plenary enquiry into centuries of the parties' conduct....

AP reports on the decision.

South Carolina Supreme Court Resolves Property Dispute In Episcopal Church

In The Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (SC Sup. Ct., Aug. 2, 2017), the 5-member South Carolina Supreme Court in 5 separate opinions spanning 77 pages resolved a property dispute that arose after a split in the Episcopal Church in South Carolina. AP summarized the background:

The conservative Diocese of South Carolina, dating to 1785 and one of the original dioceses that joined to form the Episcopal Church, left the national church in 2012 amid differences over theological issues, including the authority of Scripture and the ordination of gays. The group has since affiliated with the Anglican Church in North America, a group that formed in 2009.

Parishes in the region that didn’t leave the national church formed a diocese now known as The Episcopal Church in South Carolina.

The conservative diocese sued in efforts to protect its identity, the diocesan seal and other symbols it uses, and $500 million in church property, including the individual parishes’ holdings, as well as large properties including an Episcopal church camp in the Charleston area.

While the Supreme Court's opinions are complex, Acting Justice Toal in her dissenting opinion summarized the resulting holdings:

A majority of the Court ... agree that ... in secular church disputes, our state courts should apply neutral principles of law to resolve the case....  [T]he same majority would find this is a secular church dispute, and the Court must therefore apply longstanding trust law to resolve the questions before us. I would find the parties' actions did not comply with the formalities required to create a trust in this state....  Justice Kittredge would find the parties created a revocable trust in favor of the national church, but the plaintiffs later took steps to revoke their accession to the trust.... However ... a ... majority of the Court ... would ... transfer title of all but eight of the plaintiffs' properties to the defendants. While [2 justices] ... would do so because they believe this is an ecclesiastical dispute and the Court must therefore defer to the national church's decision on the matter, [another] would do so because he believes all but eight of the plaintiffs acceded to the Dennis Canon in a manner recognizable under South Carolina's trust law. Thus, the result reached on title is: 1) with regard to the eight church organizations which did not accede to the Dennis Canon, [3 justices] ... would hold that title remains in the eight plaintiff church organizations; 2) with regard to the twenty-eight church organizations which acceded to the Dennis Canon, [3 justices]... would hold that a trust in favor of the national church is imposed on the property and therefore, title is in the national church; and 3) with regard to Camp St. Christopher, [3 justices] would hold title is in the trustee corporation for the benefit of the associated diocese, whereas [2 others] ... would hold that the trustee corporation holds title for the benefit of the disassociated diocese. 

As to the second issue on appeal, involving the plaintiffs' claims for service mark infringement, [3 justices] ... would find the marks are validly registered under state law, but leave the ultimate resolution of the parties' conflicting claims to the pending federal case.

[Thanks to Tom Rutledge for the lead.]

4th Circuit Remands Transgender Bathroom Case

In Grimm v. Gloucester County School Board, (4th Cir., Aug. 2, 2017), the U.S. 4th Circuit Court of Appeals remanded to a Virginia federal district court a high-profile Title IX case on transgender rights, instructing the district court to determine whether the case has become moot.  At issue is whether a school board policy that required students to use rest rooms that correspond to their biological sex rather than their gender identity violates Title IX or the equal protection clause.  Previously the Supreme Court had granted certiorari, but when the Trump Administration withdrew Title IX guidance that had been issued by the Obama Administration, the Supreme Court remanded the case to the 4th Circuit for further consideration in light of that action. (See prior posting.) This past June, plaintiff graduated high school, so defendants contend that the case is now moot.  Plaintiff says he might still attend alumni or community events at the school.  It is also uncertain whether the school's bathroom policy extends to alumni as well as current students.  The 4th Circuit says that this requires further factual development by the district court. Reuters reports on the decision.

New Suit Challenges Settlement Agreement In Mosque Construction Dispute

As previously reported, in May a settlement was reached in a suit by the Islamic Society of Basking Ridge which charged RLUIPA violations, as well as violations of the 1st and 14th Amendments, in Bernards Township, New Jersey's refusal to grant site plan approval for construction of a mosque.  As part of the settlement agreement (full text), the parties agreed that a Planning Board hearing on the agreement and related mosque construction will be held, and that, among other things, at the hearing "No commentary regarding Islam or Muslims will be permitted." Now a federal lawsuit has been filed challenging this provision of the settlement agreement.  The complaint (full text) in Quick v. Township of Bernards, (D NJ, fled 7/31/2017) alleges that the commentary ban  suppresses speech based on its content; amounts to a prior restraint; violates the Establishment Clause by favoring Islam; and deprives township residents of procedural due process.  Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Appeals Court Refuses To Order Recusal of Fundamentalist Christian Judge

In Ex parte Tiara Brooke Lycans, (AL App., July 28, 2017), an Alabama appellate court refused to issue a writ of mandamus ordering a trial judge who also serves as a preacher of a fundamentalist Christian church to recuse himself in a divorce action in which the wife, a lesbian, feared bias in the judge's custody ruling.  The court said in part:

Judge Bell's expressed belief that homosexual relationships and marriage are contrary to God's law, ... that God's law takes precedence over man-made law, and his placing paramount importance on the moral environment in which a child will live ... would tend to indicate to a reasonable person that a reasonable basis for questioning Judge Bell's impartiality in the divorce action exists; however, the standard is not whether there are some facts that would tend to indicate ... a reasonable basis.... Rather, the issue is "whether a reasonable person knowing everything that [Judge Bell] knows would have a "reasonable basis for questioning [Judge Bell's] impartiality."...  Judge Bell, in his pendente lite custody order ... granted the mother and the father joint physical custody of the child, with custody alternating weekly, and ... [he] has granted two other lesbian mothers and the fathers of their children joint physical custody.... [A] reasonable person who knows everything that Judge Bell knows would not have a reasonable basis for questioning Judge Bell's impartiality....

Christian Post reports on the decision.

Public Accommodation Law Does Not Apply To Photographer Without Business Store Front

Earlier this year a Madison, Wisconsin creative photographer, Amy Lynn, filed suit in Wisconsin state court challenging local and state public accommodation provisions that impeded her ability to rely on her Christian religious beliefs in her client selection. (See prior posting.)  Now, according to an ADF press release, at an August 1 hearing the court announced that it will issue an order declaring that the local and state public accommodation laws do not apply to individuals like Lynn who do not have a physical store front as part of their business.  The court said that the city and state agree that the public accommodation laws do not apply in such cases.