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Court Strikes Down North Carolina Limits On Worship Services

This is from religionclause.blogspot.com which you can find here:

In Berean Baptist Church v. Cooper, (ED NC, May 16, 2020), a North Carolina federal district court issued a temporary restraining order barring enforcement of the governor’s COVID-19 order that limits indoor worship services to ten people. Saying that “There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment.,” the court continued:

The assembly for religious worship provisions in EO 138 starkly illustrate the extent to which religious entities and individuals are not subject to a neutral or generally applicable law. The record, at this admittedly early stage of the case, reveals that the Governor appears to trust citizens to perform non-religious activities indoors (such as shopping or working or selling merchandise) but does not trust them to do the same when they worship indoors together.

News & Observer reports on the decision.

You can learn more about this issue here.

Court Refuses To Dismiss Catholic School Teacher’s Suit On Church Autonomy Grounds

This is from religionclause.blogspot.com which you can find here:

In Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc.(IN Super. Ct., May 1, 2020), an Indiana trial court refused to dismiss a lawsuit against the Catholic Archdiocese brought by a teacher who claims that the Archdiocese interfered with his contractual relationship with Cathedral High School, an independent school that had a relationship with the Archdiocese. The teacher was fired pursuant to a directive from the Archdiocese issued after the teacher entered a same-sex marriage. The school feared that if it did not comply, the Archdiocese would no longer recognize it as a Catholic institution. The Archdiocese argued that the lawsuit should be dismissed under the “church autonomy” doctrine. The court said in part:

In civil dispute involving church as party, the court has jurisdiction to resolve the case if it can be done without resolving an ecclesiastical controversy. The court can avoid the religious controversy by deferring to the highest authority within the ecclesiastical body….

… [T]his Court cannot determine that the directive by the Archdiocese to terminate Payne-Elliott was made by the highest authority in the ecclesiastical body of Cathedral or of the Roman Catholic Church.“

The court also questioned whether the case involved an ecclesiastical controversy at all:

… [A] letter from the President and Chairman of the Board of Cathedral elaborates as to ”What is at stake?” Therein, Cathedral states: ”Furthermore, Cathedral would lose its 501(c)(3) status thus rendering Cathedral unable to operate as nonprofit school.” This rational for firing Payne-Elliott is important,… If Payne-Elliott was terminated by Cathedral for an economic benefit to Cathedral at the direction of the Archdiocese, then that is different matter than Catholic doctrine.

The court also refused to accept several other grounds for dismissal put forward by the Archdiocese.  Indiana Lawyer reports on the decision.

You can learn more about this issue here.

Nativity Scene On Indiana County Building Property Held Unconstitutional

This is from religionclause.blogspot.com which you can find here:

In Woodring v. Jackson County, Indiana, (SD IN, April 30, 2020), an Indiana federal district court held that the Establishment Clause is violated by a nativity scene displayed on the lawn of an historical courthouse that now houses county offices. The court first concluded that plaintiff has standing to sue:

Her injury is the direct contact she must endure with a display that she alleges violates the Establishment Clause in the course of exercising her rights as a citizen of Jackson County.

Moving to the merits of the claim, the court said in part:

Here … the Nativity scene is not on its own. It is accompanied by two other arguably secular symbols of Christmas: Santa Claus and a group of Christmas carolers….

Nevertheless, two facts persuade the Court that this Nativity scene would give a reasonable observer the impression that the government is endorsing a religion. The first of those facts is the geography of the display…. Santa and the carolers are placed to the far side of the display, away from the more centralized Nativity display, which straddles the sidewalk subdividing the lawn…. The crèche is the vast majority of the display … making it appear much larger than the solitary Santa figure…. The carolers have been placed in the back of the display, lessening the attention they would draw from an observer….

The second fact that convinces the Court that the Nativity scene would give the impression of a religious endorsement is the scene’s history. For many years, it was only a Nativity scene, with no secular elements at all….But in 2018, in response to a letter from the Freedom from Religion Foundation questioning the display’s constitutionality, the President of the County Commissioners …physically moved Santa Claus and his sleigh and reindeer and the carolers to a place nearer the crèche…. The addition of less prominent secular symbols at the fringes of the display is not enough to counteract the impression a reasonable observer would have gotten from seeing the Nativity display placed on the lawn of the Courthouse for nearly 20 years. The Court has no doubt that a sufficient balancing between secular and nonsecular elements could bring this display into harmony with the First Amendment despite its history, but that balancing has not occurred here. Thus, the display fails the endorsement test.

You can learn more about this issue here.

Negligent Violation of Inmate’s Religious Dietary Needs Did Not Violate 1st Amendment

This is from religionclause.blogspot.com which you can find here:

In Mbonyunkiza v. Beasley, (8th Cir., April 24, 2020), the U.S. 8th Circuit Court of Appeals held:

absent evidence that an underlying prison regulation or policy violates the Free Exercise Clause, evidence that a correction official negligently failed to comply with an inmate’s sincerely held religious dietary beliefs does not establish a Free Exercise Clause claim under §1983.

In the case, a Muslim inmate claimed that four times in 257 days, prison kitchen staff served him meals containing pork products. In rejecting plaintiff’s claim, the court said in part:

[T]he Supreme Court’s cases, and all the Eighth Circuit Free Exercise decisions our research has uncovered, have involved claims alleging that a statute, or a regulation or policy implementing a statute, unconstitutionally prohibited a sincerely held religious belief or otherwise unduly burdened the free exercise of religion.

By contrast, in this case NCF’s food policies affirmatively accommodate the beliefs of inmates who do not eat pork for religious reasons. Mbonyunkiza does not challenge those policies. Rather, his Supplemental Complaint asserts that defendants are liable in damages because they did not properly implement those policies on certain occasions.

You can learn more about this issue here.

WHY IS THE LAW SO COMPLICATED?

I suspect what has happened to make the law so complicated is that more and more laws, rules, regulations, etc. (referred to in this article as “laws”) have been, and continue to be, added daily by every governmental entity, as it is easier to create new laws then thoroughly examine or repeal existing laws. This is much like the process when Presidential candidates pledge on the campaign trail that if elected, they will eliminate or consolidate government departments and cabinet positions. This rarely happens because of the enormity of the task, the power struggles between the various departments, and because the Federal government not good at laying off personnel (or balancing budgets).

The severe downside of our layered system of laws is that it is nearly impossible for the average person and the small business owner to navigate the legal process.  It is also a problem for large business entities, but they have the resources to seek assistance.

I am constantly surprised to read about the existence of laws I never heard of, and I learn about these laws by reading various legal publications, or hearing about them in legal seminars. Recently I read about a class action which had been brought against an amusement park because when credit cards were used to purchase entry tickets, the expiration date was also printed out. This apparently violated some law.  The end result of the class action was that the amusement park was to give out free tickets to previous customers, and also to the community, if enough previous customers did not avail themselves of the free ticket offer. The only ones who received any money out of the lawsuit were the lawyers. The lawyers were doing a public service by protecting the privacy of the amusement park customers, but one wonders whether every amusement park operator is aware of this law, and if not, are they required to have their lawyers scour the law for such types of law? The answer is yes, they are so required.

The law has become so complex so that even a small matter, such as a buyer discovering a defect in a house he bought, faces some complex laws. In researching the remedies for a client in a similar situation recently, these were the issues we encountered:

  • State law exempts an estate (the house was sold by an estate) from responsibility in selling real estate unless the administrator/executor knew about the condition.
  • If the buyer complains of a problem, mediation, rather than a court hearing is required by the sales agreement.  The mediator has to be paid by each party involved.
  • The buyer had an inspector inspect the property. If the buyer feels the inspector did not do a good job, the inspector’s agreement requires that the matter first be arbitrated, and the buyer cannot take the matter to court, at least initially.

As we were uncertain whether the buyer could prove the seller knew about the defect, or whether the inspector should have told them about the leak, which means each party would point a finger at each other, and because we could not initiate a claim even in a small claims court, where it probably would have been resolved quickly, we advised the clients just to absorb the expense of repairing the problem, which was not large, and certainly far less expensive than paying for a mediator, an arbitrator, or a lawyer.

This post is from Faye Riva Cohen’s blog Toughlawyerlady.

1st Circuit OKs “So Help Me God” In Naturalization Oath

This is from religionclause.blogspot.com which you can find here:

In Perrier-Bilbo v. United States, (1st Cir., April 3, 2020), the U.S. 1st Circuit Court of Appeals rejected constitutional challenges to the inclusion of “so help me God” at the end of the oath of allegiance administered at naturalization ceremonies. Plaintiff, a French citizen, was offered the options of just not repeating those words during the ceremony or of having a private ceremony where the oath would be administered without that phrase. She rejected these as inadequate.

The court denied plaintiff’s Establishment Clause challenge, applying the test used by the Supreme Court in American Legion v. American Humanist Association, saying in part:

We follow the Supreme Court’s most recent framework and apply American Legion’s presumption of constitutionality to the phrase “so help me God” in the naturalization oath because we consider the inclusion of similar words to be a ceremonial, longstanding practice as an optional means of completing an oath. And because the record does not demonstrate a discriminatory intent in maintaining those words in the oath or “deliberate disrespect” by the inclusion of the words, Perrier-Bilbo cannot overcome the presumption.

Rejecting Plaintiff’s Free Exercise claim, the court said in part:

We do not second-guess the sincerity of Perrier-Bilbo’s beliefs or her feeling of distress upon hearing the phrase at issue. But even if the phrase offends her, offense “does not equate to coercion,” Town of Greece, 572 U.S. at 589, and the Free Exercise Clause does not entitle her to a change in the oath’s language as it pertains to others….

The court rejected Plaintiff’s argument under RFRA, saying in part:

While she might find the options offered by the Government subjectively burdensome, however, the district court was right to conclude that not every imposition or inconvenience rises to the level of a “substantial burden.”

The court also rejected equal protection and due process challenges.  Judge Barron filed a concurring opinion. Free Thinker blog discussed the decision.

You can learn more about this issue here.

Michigan Will Allow Secular Marriage Celebrants

This is from religionclause.blogspot.com which you can find here:

In an April 2 press release, the Center for Inquiry reports:

Secular celebrants are now permitted to officiate and solemnize marriages in Michigan, after the state attorney general reversed the government’s opposition to a lawsuit brought by the Center for Inquiry (CFI). Promising that the state considers CFI-trained and certified Secular Celebrants to be covered by existing statutes regarding marriage solemnization, the presiding federal court brought the case to a close.

You can learn more about this issue here.

10th Circuit Reverses Dismissal Of Inmate’s 1st Amendment Claims

This is from religionclause.blogspot.com which you can find here:

In Khan v. Barela, (10th Cir., March 26, 2020), the U.S. 10th Circuit Court of Appeals in a 35-page opinion reversed a New Mexico federal district court’s sua sponte dismissal of a federal pre-trial detainee’s pro se 1st and 4th Amendment claims. Erik Khan was a pre-trial detainee for some four years. His 1st Amendment free speech claims involved a prohibition on his reading hard-cover books, newspaper and newspaper clippings. His 1st Amendment free-exercise claims revolved around prison chaplains’ refusal to allow him a clock, prayer schedule, and Muslim calendar to track the timing of Ramadan, and his inability to obtain Ramadan-compliant meals.

You can learn more about this issue here.

Court Interprets Defenses Under Illinois RFRA and Right of Conscience Act

This is from religionclause.blogspot.com which you can find here:

In Rojas v. Martell, (IL App., March 6, 2020), an Illinois state appellate court answered four certified questions on the state’s  Health Care Right of Conscience Act and its Religious Freedom Restoration Act. The court held that neither the analytic framework not the reasonable accommodation defense of Title VII should be read into these state statutes. It also concluded that transfer of an employee to a job that does not include the religiously objectionable duties may be permissible under the Right of Conscience Act. The issues arose in a case in which a county health department nurse claimed that the health department discriminated against her after she asserted that her Catholic religious beliefs prevented her from providing birth control, from providing Plan B emergency contraception, and from making abortion referrals.

You can learn more about this issue here.

Justice Department Sides With Wedding Photographer In District Court Case

This is from religionclause.blogspot.com which you can find here:

The Department of Justice announced yesterday that it has filed a Statement of Interest (full text) in Chelsey Nelson Photography, LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 2/27/20).  As previously reported, in the case the owner of a wedding photography business seeks a preliminary injunction to prevent enforcement of Louisville’s public accommodation ordinance against her. 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. DOJ sides with the photographer, arguing in part:

Most commercial transactions will not involve requiring an unwilling speaker to participate in someone else’s expressive activity. But where public accommodations laws do intrude on expression in this way, they are subject to heightened scrutiny….

Photography—and particularly the bespoke wedding photography in which Ms. Nelson engages—is inherently expressive…. By … compelling her to engage in expression promoting and celebrating a ceremony in violation of her conscience, Defendants infringe upon the fundamental “principle of autonomy to control one’s own speech.”

… That is not to say that every application of a public accommodations law to protected expression will violate the Constitution. In particular, laws targeting race-based discrimination may survive heightened First Amendment scrutiny….  The Supreme Court has not similarly held that classifications based on sexual orientation are subject to strict scrutiny or that eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest.

You can learn more about this issue here.

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