Denial of Temporary Religious Worker Visa Upheld

In Calvary Albuquerque Inc. v. Blinken, (D NM, March 13, 2024), a New Mexico federal district court dismissed challenges to the denial of an R-1 (Temporary Religious Worker) visa for Stefen Green, a South African citizen who was to be hired as Calvary Church's Worship Director. At issue was the fact that Green received honoraria and allowances from Calvary Church while in the United States on a B-1 visitor's visa before the R-1 visa was approved. Green and Calvary Church both contended that the denial violated their rights under the Religious Freedom Restoration Act. Denying Green's claim, the court said in part:

Because the doctrine of consular nonreviewability is a long-standing “no trespass rule” for judicial review, and Congress has not expressly provided for judicial review of consular visa decisions, this Court may not infringe upon the consular officer’s decision to deny Mr. Green’s visa except where the constitutional rights of an American citizen are implicated....

Moving on to the RFRA claim by the Church, the court said in part: 

Calvary Church is a United States church making a free exercise claim under RFRA, so this Court must next determine whether the consular officer’s visa denial was made for a facially legitimate and bona fide reasons....

Here, the consular officer cited a valid statutory reason for denial.... [T]he consular officer made a factual determination that Mr. Green willfully misrepresented the purpose of his April 9, 2022, visit to a border official as commensurate with a B-1/B-2 visa and then violated that status by intending to engage in unauthorized employment for hire as an independent contractor at Calvary Church within 90-days of his entry into the United States.

Satanic Temple Opens Reproductive Health Clinic Offering Its Abortion Ritual

In a press release issued this week, The Satanic Temple ("TST") announced that it has set up its first Reproductive Health Clinic in New Mexico. TST has developed an abortion ritual that it claims is protected by the First Amendment. According to the press release:

[A]nyone in New Mexico seeking to perform The Satanic Temple’s abortion ritual will be able to receive free online medical services. Patients undergo a confidential screening and virtual appointment before having their prescriptions sent to the clinic’s pharmacy partner, who will mail the medications in a discreet package. The pharmacy’s fees will fall around $90 USD in order to keep prices at a minimum. TST Health’s licensed medical staff will be available for patient questions and concerns and will initiate follow-up communications with patients. In addition, the clinic has a dedicated patient hotline that is on call 24/7. 

The Satanic Temple hopes to expand operations into other states, including those that do not allow clinicians to perform abortions.

TST's press release added that it has named the facility "The Samuel Alito’s Mom's Satanic Abortion Clinic," and went on to elaborate on that choice. Christian Post reports on TST's actions.

Court Approves Bankruptcy Reorganization Plan for Santa Fe Archdiocese

The Catholic Archdiocese of Santa Fe, New Mexico announced yesterday that a U.S. Bankruptcy Court has confirmed a Plan of Reorganization that has been agreed to by the Committee representing victims of clergy abuse and by the Archdiocese. According to an Open Letter from the Official Committee of Unsecured Creditors recommending that abuse victims vote to accept the plan:

Under the Plan, the Debtor, its affiliates and their insurers will create a settlement fund of approximately $121.5 million (the “Settlement Amount”) upon the effective date of the Plan. The Plan also includes measures to enhance child protection, including the first-ever publication of abuse related documents through an archive administered by the University of New Mexico.

All the Chapter 11 Plan Documents are available on the Archdiocese's website. In announcing the court's confirmation of the plan, Archbishop Wester said in part:

While I hope and pray that the bankruptcy outcome will bring a measure of justice and relief to the victims of clergy sexual abuse, I realize that nothing can ever compensate them for the criminal and horrendous abuse they endured. I pledge that the Archdiocese of Santa Fe will remain vigilant in protecting children and young people from clergy sexual abuse, doing all we can to assure them of a safe and protective environment in the Catholic Church. We will continue to monitor the safeguards we have put in place and implement the non-monetary agreements....

Once again, I express my most profound sorrow and contrition for those who have endured clergy sexual abuse. This is a sin that cries to heaven for vengeance and which has no place in the Catholic Church: not now, not ever.

AP reports on the court's action and has additional background on the proceedings. 

Christian Doctors Challenge New Mexico's Assisted Suicide Law

Suit was filed this week in a New Mexico federal district court by a physician and the Christian Medical & Dental Associations challenging the constitutionality of New Mexico's End-of-Life Options Act.  The complaint (full text) in Lacy v, Balderas, (D NM, filed 12/14/2022), alleges in part:

6. The Act purports to protect physicians who object to assisted suicide for reasons of conscience, saying they will not be required to “participate.” But that promise rings hollow. The Act does not define the word “participate,” requires conscientious objectors to facilitate suicide in material ways, and expressly prohibits professional associations like CMDA from taking action to ensure that their members advance—rather than undermine—their mission and message.

7. The Act compels objecting physicians to speak and inform terminally ill patients about the availability of assisted suicide.....

8. The Act forces objecting physicians to refer their patients to physicians or organizations who are “able and willing to carry out” the patient’s assisted suicide.....

9. The Act expressly prohibits professional associations like CMDA from suspending, denying, or revoking membership to physicians who participate in assisted suicide, violating CMDA’s right to associate with members who will present a consistent message. Id. at § 24-7C-7(B).

10. The State of New Mexico thus compels objecting health care professionals to speak a certain message about assisted suicide, and forces them to provide proximate, formal, and material cooperation in an unethical and sinful act.

ADF issued a press release announcing the filing of the lawsuit. 

Free Exercise Challenge To New Mexico COVID Orders Moves Ahead

McKinley v. Grisham, (D NM, June 7, 2022), involves various challenges to Executive Orders and Public Health Orders issued by New Mexico officials in response to the COVID pandemic. While most of the challenges were dismissed, the court allowed plaintiffs to move ahead with their free exercise challenge to restrictions on in-person gatherings at houses of worship. The court said in part:

Some New Mexico public health orders treated comparable secular activities more favorably than religious exercise. For example, the April 11, 2020, public health order allowed essential businesses 20% occupancy capacity but prohibited mass gatherings in a church, synagogue, mosque or other place of worship....

Taking the allegations as true, it is plausible that the Plaintiffs state a freedom of religion claim. Therefore, whether the public health orders survive strict scrutiny is a factual inquiry that cannot be resolved on this Motion. For the above reasons, Plaintiffs alleged a plausible freedom of religion claim, and this Count cannot be dismissed at this stage.

Court Upholds New Mexico's COVID-19 Limits On Church Services In Lengthy Opinion

In a 268-page opinion in Legacy Church, Inc. v. Kunkel, (D NM, July 13, 2020), Legacy Church lost its challenges under the Free Exercise Clause and the Freedom of Assembly Clause to New Mexico Department of Health Kathyleen Kunkel’s Public Health Emergency Orders imposing various restrictions on gatherings for religious services. Summarizing its holdings, the court concluded that the Public Health Orders "are neutral with respect to religion and generally applicable;" and they "are unrelated to the suppression of speech or religion, serve a compelling state, interest, and less restrictive alternatives are not available."

Court Upholds New Mexico 5-Person Limit On Size of Church Gatherings

In Legacy Church, Inc. v. Kunkel, (D NM, April 17, 2020), a New Mexico federal district court refused to enjoin enforcement of the Order issued by the New Mexico Department of Health that bars gatherings of more than five people in houses of worship. Legacy Church, a megachurch, requires approximately 30 clergy and technical staff members to live stream its religious services. Summarizing its 100-page opinion, the court said:

The primary issues are: (i) whether Plaintiff Legacy Church, Inc.... is likely to succeed on the merits in demonstrating that Defendant Kathyleen M. Kunkel’s Public Health Emergency Order (4-11-20-PHO)..., which restricts places of worship from gathering more than five people within a single room or connected space, violates Plaintiff Legacy Church’s rights under the Free Exercise Clause of the First Amendment....; and (ii) whether Legacy Church is likely to succeed on the merits in demonstrating that the Order violates [its]... rights to peaceably assemble under the First Amendment. The Court concludes that: (i) the Order does not violate Legacy Church’s First Amendment religious freedom rights, because the Order is neutral and generally applicable; and (ii) the Order is a reasonable time, place, and manner restriction, and so does not violate Legacy Church’s First Amendment rights to assemble.

[Thanks to Marty Lederman via Religionlaw for the lead.] 

Church Challenges To COVID-19 Orders Proliferate

Suits challenging COVID-19 orders that ban group church services are proliferating.  Sacramento Bee reported yesterday:

A group of Inland Empire pastors is suing California Gov. Gavin Newsom in federal court, alleging that his administration is “criminalizing the free exercise of religion” with stay-at-home directives that have prevented people from attending church services....

One of the plaintiffs is Dean Moffatt, a Riverside County pastor who was fined $1,000 for holding a Palm Sunday church service, according to the complaint filed.

KRQE News reported yesterday:

An Albuquerque [New Mexico] megachurch is now suing the state claiming the governor violated the first amendment that protects the freedom of religion. Specifically, it’s focused on the church’s Easter Sunday service and the number of people it takes to live stream to its congregation....

[Pastor Steve] Smothermon of Legacy Church filed suit requesting a temporary restraining order but also a permanent injunction affording them the same restrictions as local essential retailers, limiting capacity to 20%. Smothermon says to hold yesterday’s service they would have a worship team, a band, the pastor and technical staff. A group of about 30 people. Therefore, conducting the live-streamed services would immediately violate the governor’s order to limit gatherings to no more than five people.

WAVE News reported yesterday:

 A Kentucky church whose members defied Gov. Andy Beshear’s executive order not to gather in groups now plans to file a federal lawsuit claiming its constitutional rights were violated.

The Maryville Baptist Church is at the center of the debate, after about 50 members attended an Easter service in person.

Kentucky State Police troopers were ordered to take down the license plates of those who attended, threatening to quarantine them.

The church’s attorney, Matthew Staver, said the lawsuit is because the church was targeted.

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

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.

New Mexico Supreme Court Upholds Textbook Loan Program

In Moses v. Ruszkowski, (NM Sup. Ct., Dec. 13, 2018), the New Mexico Supreme Court in a 5-2 decision held that New Mexico's textbook loan program does not violate the state constitution. The program provides for the loan of secular textbooks to private and parochial school students.  In 2015, the state Supreme Court held that the program was unconstitutional. (See prior posting.) However in 2017, the U.S. Supreme Court  granted certiorari, vacated the judgment and remanded the case for further consideration in light of the U.S. Supreme Court's Trinity Lutheran Church decision. (See prior posting.) Now on remand, the state Supreme Court reversed itself, saying in part:

On remand, we conclude that this Court’s previous interpretation of Article 16 XII, Section 3 raises concerns under the Free Exercise Clause of the First Amendment to the United States Constitution. To avoid constitutional concerns, we hold that the textbook loan program, which provides a generally available public benefit to students, does not result in the use of public funds in support of private schools as prohibited by Article XII, Section 3. We also hold that the textbook loan program is consistent with Article IV, Section 31 of the New Mexico Constitution, which addresses appropriations for educational purposes, and Article IX, Section 14 of the New Mexico Constitution, which limits “any donation to or in aid of any person, association or public or private corporation.”

Chief Justice Nakamura and Justice Clingman dissented. Courthouse News Service reports on the decision.

Street Preacher's Suit Against Police Survives Dismissal Motion

In Craft v. Wright, (D NM, Sept. 26, 2018), a New Mexico federal district court refused to dismiss a street preacher's 1st and 4th Amendment claims against Hobbs, New Mexico police officials. The court concluded that plaintiff Al-Rashaad Craft was arrested without probable cause for assault and battery and disorderly conduct after an incident described as follows:

[Craft] was standing in the public square ... preaching a religious sermon, recording himself while doing so.... Susan Stone, began yelling at him, using obscenities, and waving a lighter only inches from Craft’s face and in front of the camera that Craft had set up to record his sermon.... Craft ignored the woman, but when he started to read from his Bible, Stone struck Craft in the face with his Bible.... In response, Craft pushed the woman away, and she lost her balance and fell.... Stone got up and continued to shout obscenities at Craft, walking in circles around him, smoking, and waving her lighter; she appeared intoxicated, which Craft later reported to the police.

Church Autonomy Doctrine Applies To Shaming By Group Teaching Reincarnation

In Hubbard v. J Message Group Corp., (D NM, July 11, 2018), a New Mexico federal magistrate judge dismissed under the church autonomy doctrine defamation, invasion of privacy and intentional infliction of emotional distress claims against JMGC, also known as Companions of Wisdom. The organization promotes reincarnation-based teachings. The court summarizes plaintiff's allegations:

JMGC lures people who are looking for spiritual direction and altruistic involvement.... When prospective members wish to advance their association with JMGC and share details of their personal lives with Defendants, Defendants collectively engage in a process designed to control, isolate, shame, emotionally harm, and take advantage of the prospective members.... Members who dissent or question the leadership’s directives become the targets of “shaming conduct”—meaning that Defendants “collectively disseminate false information coupled with outrageous accusations, in CoW communications, designed solely to cause dissenting members substantial emotional and psychological trauma.” ... Dissenting members are subjected to this “shaming conduct” until they recant their dissent or quit the organization....

Finding that the 1st Amendment requires dismissal, the court said in part:

JMGC/CoW, an organization that exists to promote its reincarnation-based spiritual doctrine and whose membership is required to adhere to its “religious” precepts, is entitled to First Amendment protections against tort claims on par with churches and other religious organizations. That is, ... JMGC/CoW retains exclusive control, protected by the First Amendment, over matters concerning “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” ...

As alleged in the Complaint, the conduct giving rise to Plaintiff’s claims originally stemmed from an internal dispute between Plaintiff and the leadership of JMGC prompted by Plaintiff’s “inquiring nature” and her “resistance” to the directives of the leadership. It is evident from the face of the Complaint, however, that JMGC is an authoritarian organization that does not permit dissent or questions regarding its doctrines or leadership. Thus, when she dissented from and questioned the leadership’s directives, to permit Plaintiff to pursue her claim for damages based on Defendants’ having ostracized and defamed her would, in the context of this case, amount to impermissible government interference with Defendants’ right to practice their faith....

The statements and conduct giving rise to Plaintiff’s lawsuit cannot be adjudicated without impermissible intrusion upon Defendants’ right, guaranteed by the First Amendment, to freely exercise their religion. Each of Plaintiff’s claims, if adjudicated in a civil trial, would require the jury (or judge in the role of fact-finder) to resolve questions that are rooted in religion. For example, in order to succeed in her defamation claim or in her false light invasion of privacy claim, Plaintiff would have to prove, among other things that, as a matter of fact, Plaintiff does not: have “a split who is a porn star”; Plaintiff’s soul has not been part of “several sex cults”; and that no aspect of Plaintiff’s soul was sexually or financially “predatory” within JMGC/CoW.

EEOC Sues New Mexico Diner For Failing To Accommodate Muslim Employee

The EEOC announced yesterday that it has filed a Title VII religious discrimination lawsuit against a diner in Farmington, New Mexico. The lawsuit charges that the Blue Moon Diner refused to accommodate a female Muslim employee who requested to work wearing a hijab. The suit also claims that the diner constructively discharged the employee because of her religion.

City Considering Crowdfunding To Pay Ten Commandments Litigation Costs

The Farmington Daily Times reports that the city of Bloomfield, New Mexico may take an unusual approach to paying the $700,000 attorneys' fees of the successful plaintiffs who sued it over a Ten Commandments monument. It is considering using an online crowdfunding site to raise the funds.  While Alliance Defending Freedom represented the city without charge in the litigation, now that the city has finally lost after a denial of review by the Supreme Court, it must pay the ACLU for the cost of representing plaintiffs in the litigation.  The amounts will have to come from the city's general funds if its crowdfunding initiative is unsuccessful.

Supreme Court Denies Review In 10 Commandments Case

The U.S. Supreme Court today denied certiorari in Bloomfield, NM v. Felix, (Docket No. 17-60, cert. denied 10/16/2017) (Order List).  In the case, a 3-judge panel of the 10th Circuit found that a Ten Commandments monument on a city hall lawn violates the Establishment Clause. (See prior posting.) The full 10th Circuit, over the dissent of two judges, denied en banc review. (See prior posting.) ADF issued a press release on the Supreme Court's denial of review.

New Mexico Paramilitary Christian Group Members Arrested In Child Abuse Investigation

Earlier this week, New Mexico authorities raided the Fence Lake (NM) compound of the paramilitary Aggressive Christianity Missions Training Corps in a child abuse investigation.  They arrested sect co-leader Deborah Green and two other group members, while another member was arrested in Truth or Consequences, New Mexico. According to People, the defendants are variously charged with child abuse, criminal sexual penetration, failure to report a birth, and bribery of a witness. Peter Green has been charged with 100 counts of criminal penetration of a child.

Four more sect members were arrested yesterday on charges of failing to register the births of their 11 children.  They were apprehended as they were allegedly trying to flee the state in two vans filed with children. Fox News, reporting this, says that the group describes itself as "revolutionary for Jesus" and provides a free spiritual "ammo pack" to anyone requesting one.  Its website includes anti-Semitic and anti-same sex marriage language.

Discussing interviews with ex-members of the sect, AP reports that:

[L]eaders of the Aggressive Christianity Missions Training Corps exercised control over followers by forcing them into hard labor and refusing to give their children medical care. When members complained, sect co-leader Deborah Green would hold "trials" against them for questioning her authority.... The trials led to banishment to isolated sheds without toilets and from the sect's compound without being allowed to take their children....

Developments In Two Diocese Bankruptcies

There have been developments this week in bankruptcy proceedings of two different Catholic dioceses.  RNS reports that the Archdiocese of St. Paul and Minneapolis has filed a revised plan under Chapter 11 offering to pay $132 million to settle nearly 450 child sex abuse claims asserted against its clergy.  Lawyers for the claimants, however, say that the offer is far too small.

Meanwhile in New Mexico, the Diocese of Gallup has been prevented from finalizing its exit from bankruptcy because of a new suit filed against it by Sisters of the Blessed Sacrament, a religious order that founded St. Michael Indian School in Arizona.  According to Tuesday's Alamogordo Daily News, a new suit against the Sisters of Blessed Sacrament claims a woman was sexually abused at the school by a Franciscan friar. The Sisters have in turn filed suit against the Diocese of Gallup.

10th Circuit: Ten Commandments Monument Violates Establishment Clause

In Felix v. City of Bloomfield, (10th Cir., Nov. 9, 2016), the U.S. 10th Circuit Court of Appeals agreed with the district court (see prior posting) that a Ten Commandments monument erected by a former city councilman on the Bloomfield, New Mexico city hall lawn violates the Establishment Clause. Among other things, the court held that plaintiffs who are polytheistic Wiccans demonstrated sufficient injury to have standing even though they only saw the monument and never read the text on it. The court went on to hold:

The apparent purpose and context of the Monument’s installation would give an objective observer the impression of official religious endorsement. In arriving at this conclusion, we examine the text of the Monument, its placement on the lawn, the circumstances of its financing and installation, and the timing of this litigation.

It held that disclaimers on and around the monument failed to "negate the more powerful statement of endorsement conveyed by a decision to place the Monument on government land." Nor did the later addition of a number of secular monuments cure the violation.

New Mexico Supreme Court Files Amended Opinion Again Striking Down Textbook Loan Program

Last week, the New Mexico Supreme Court denied a motion for a rehearing in its recent Blaine Amendment decision (see prior posting) invalidating the state statute that provides for the loan of secular textbooks to private and parochial school students, but substituted a new opinion for the one handed down last month. The primary change in its new opinion in Moses v. Skandera, (NM Sup. Ct., Dec. 23, 2015), is the addition of paragraphs 28 and 29 rejecting the argument that since funding for the textbook program comes from payments to the state under the federal Mineral Lands Leasing Act, this preempts state constitutional limits.  The court said in part:

The MLLA has neither expressly nor impliedly preempted the application of Article XII, Section 3 because restricting funds appropriated for educational purposes to public schools is not incompatible with the purposes announced in the MLLA. Thus, Intervenors’ argument that funds from the MLLA that are used for the Instructional Material Fund are federal funds which are “not subject to state constitutional limitations” is without merit.

Proposed Bill In New Mexico Would Amend RFRA To Protect Religiously- Based LGBT Discrimination

While New Mexico already has a Religious Freedom Restoration Act, last week two legislators pre-filed a bill for the new session that would expand the state's RFRA to permit businesses to refuse to conduct business with gay, lesbian and transgender individuals where the business has religious objections to doing so. Think Progress reports that the new House Bill 55, while prohibiting businesses from using religion to justify racial or gender discrimination, does not prohibit using religion to justify LGBT discrimination.  The Bill provides:

Nothing contained in the Human Rights Act shall ... burden a person's free exercise of religion by requiring the person to provide a service or to conduct business in a manner inconsistent with adherence to that person's sincerely held religious belief unless that adherence is based on race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition.