Monday, September 21, 2020

Recent Articles of Interest

 From SSRN:

From SSRN (Non-U.S. Law):

From elsewhere:

Friday, September 18, 2020

EEOC Sues Over Failure To Accommodate Seventh Day Adventist

The EEOC announced this week that it has filed a Title VII lawsuit against Texas-based Frito-Lay, Inc. for failing to accommodate the religious needs of a Seventh Day Adventist employee working in Florida. The Commission explained:

[A] West Palm Beach Frito-Lay warehouse employee applied for and received a promotion to route sales representative. The employee completed approximately five weeks of training without having to train on Saturdays. However, despite learning he could not work on Saturdays be­cause of his Seventh-day Adventist religious beliefs, Frito-Lay sched­uled him to train on Saturdays and terminated him after he failed to report to training on two consecutive Saturdays.

President Issues Rosh Hashanah Message

 Today the White House released a Presidential Message on Rosh Hashanah, 2020, which begins this evening. It reads in part:

The First Lady and I wish our Jewish brothers and sisters Shana Tova and hope the millions observing this sacred day in America and around the world have a blessed start to the High Holy Days....

This year’s High Holy Days come with a sense of optimism for the people of Israel, as my Administration continues to make great strides in securing a more stable, prosperous, and peaceful Middle East region...

Ohio Law Bans COVID Orders That Close Houses of Worship

Ohio Governor Mike DeWine yesterday signed into law HB272 (full text) which prohibits any public official from issuing an order to close all places of worship in the state or in a geographic region of the state. The bill responds to actions in other states closing churches to prevent the spread of COVID-19.  AP reports on the Governor's action.

Thursday, September 17, 2020

EEOC Sues Over Health Care Company's Refusal To Accommodate Modest Dress Beliefs

The EEOC announced that it filed a religious discrimination suit Wednesday in a Texas federal district court against Wellpath, LLC, a provider of health care in correctional facilities. Describing the suit, the EEOC said in part:

[A] nurse who is a practicing Apostolic Pentecostal Christian was hired by Wellpath to work in the GEO Central Texas Correctional Facility.... Before reporting to work, the nurse told a Wellpath human resources employee that her religious beliefs require her to dress modestly and to wear a scrub skirt instead of scrub pants while at work. In response, Wellpath denied the request for her religion-based accommodation and rescinded the nurse’s job offer.

Consent Decree Allows Construction of Chabad House

 A consent decree was entered this week in United States v. Borough of  Woodcliff Lake, (D NJ, Sept. 15, 2020), ordering the Borough to grant zoning variances that will permit construction of a Chabad synagogue. The decree, citing RLUIPA, orders zoning approvals in accordance with a site plan approved in the settlement of a parallel private action. The consent decree also contains provisions to assure future compliance with RLUIPA. reports on the consent decree. [Thanks to Steven H. Sholk for the lead.]

California Christian School Must Abide By COVID-19 Restrictions

 In County of Fresno v. Immanuel Schools, (CA Super. Ct., Sept. 15, 2020), a California state trial court judge issued a preliminary injunction ordering a 600-student Christian school near Fresno, CA to cease holding in-person classes as required by state and local COVID-19 orders. The court said in part:

United States Supreme Court Chief Justice John Roberts has observed in a recent consequential concurring opinion that “[t]he precise question of when restrictions on particular’social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’ When those officials ‘undertake[] to act in areas fraught with medical and scientific uncertainties,’ their latitude ’must be especially broad.’” (South Bay United Pentacostal Church V. Newsom (2020)....

Courthouse News Service reports on the decision. [Thanks to Scott Mange for the lead.]

Wednesday, September 16, 2020

Mask-In-School Requirement Challenged On Free Exercise Grounds

Suit was filed last week in an Ohio state trial court challenging as too narrow the religious exemption from Ohio's COVID-19 mask requirement in schools. The complaint (full text) in Miller v. Himes, (Putnam Cty. Com Pl., filed Sept. __, 2020), contends that the exemption for students "when an established sincerely held religious requirement exists which does not permit a facial covering" violates their free exercise rights. A school district denied an exemption to one of the plaintiffs even though she had a sincerely held religious belief  opposing masks. The district took the position that a belief is different from a religious requirement.  The suit also challenges the school mask requirement on various other grounds, including compelled speech and parental rights claims. Cincinnati Enquirer reports on the lawsuit.

EEOC Sues On Behalf of Employees Who Refuse To Wear Company Aprons That Contain Rainbow Emblem

The EEOC announced yesterday that it has filed suit against a Conway, Arkansas Kroger store charging that it violated Title VII when it disciplined and then discharged two women employees who refused to wear Kroger aprons that display a rainbow-colored heart emblem.  The women believe that the apron endorses LGBTQ values and that wearing it violates their religious beliefs. Kroger refused the women's offers to wear other aprons or to cover the emblem.

Consent Decree Ends Religious Practices In Tennessee School District

Earlier this week, a Tennessee federal district court issued a consent decree in Butler v. Smith County Board of Education, (MD TN, Sept. 14, 2020), enjoining various religious practices in the Smith County schools. The Consent Decree and Order provides in part:

Complaint alleged that the Board has a custom, policy, and practice of violating the Establishment Clause by, among other actions, incorporating official prayer into school events; proselytizing students; and subjecting students to religious iconography via displays in classrooms, hallways, and other locations....

School Officials are enjoined from promoting, advancing, endorsing, participating in, or causing Prayers during or in conjunction with School Events for any school within the School District....

School Officials are enjoined from planning, organizing, financing, promoting, or otherwise sponsoring in whole or in part a Religious Service....

Defendants are enjoined from permitting School Officials at any school within the School District to promote their personal religious beliefs to students in class or during or in conjunction with a School Event....

School Officials are enjoined from taking retaliatory action against Plaintiffs or any member of their family for bringing this lawsuit or otherwise objecting to unconstitutional practices.

WZTV reports on the case.

Tuesday, September 15, 2020

DoD Issues Revised Policy On Religious Liberty In Military Services

On Sept. 1, the Department of Defense issued a revised version of DoD Instruction 1300.17, Religious Liberty in the Military Services. The revised Instruction begins by setting out the purpose of the document:

• Establishes DoD policy in furtherance of the Free Exercise Clause ... recognizing that Service members have the right to observe the tenets of their religion, or to observe no religion at all.

• Establishes policy, assigns responsibilities, and provides procedures for the accommodation of religious practices of Service members.

• Establishes DoD policy on the accommodation of individual expressions of sincerely held beliefs (conscience, moral principles, or religious beliefs), which do not have an adverse impact on military readiness, unit cohesion, good order and discipline, or health and safety.

• Establishes DoD policy providing that an expression of sincerely held beliefs (conscience, moral principles, or religious beliefs) may not, in so far as practicable, be used as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.

• Implements requirements in ... “The Religious Freedom Restoration Act” ... and other laws applicable to the accommodation of religious practices for DoD to provide, in accordance with the RFRA, that DoD Components will normally accommodate practices of a Service member based on a sincerely held religious belief.

• Requires DoD Components to oversee the development and provision of education and training on the policies and procedures pertaining to the accommodation of religious practices of Service members to commanders, judge advocates, chaplains, recruiters, and other personnel....

The new Instruction replaces a version adopted in 2014. (See prior posting.)

Monday, September 14, 2020

Report Contends UAE-Bahrain-Israel Deal Could Change Status Quo On Temple Mount

Relying on a Report from the NGO Terrestrial Jerusalem, Al Jazeeera says that a clause in the UAE-Bahrain normalization agreements with Israel could lead to a change in status of the Temple Mount/ Al-Aqsa compound. Under the current status quo arrangements, only Muslims can pray on the Temple Mount/ Al-Aqsa compound.  President Trump's Middle East Peace Plan called for the Temple Mount to be open to worshipers of all faiths. However a later clarification by U.S. Ambassador to Israel David Friedman  said: "The status quo, in the manner that it is observed today, will continue absent an agreement to the contrary." Recent statements by the UAE and Bahrain are now being seen as signaling a breach of the status quo arrangement.

Donald Trump's Peace Plan carefully referred to the Temple Mount as "Temple Mount/Haram al-Sharif."  The August 13 Joint Statement by the UAE, Israel and the United States as well as the September 11 Joint Statement by Bahrain, Israel and the U.S. include the following statement which refers only to Al Aqsa Mosque:

As set forth in the Vision for Peace, all Muslims who come in peace may visit and pray at the Al Aqsa Mosque, and Jerusalem’s other holy sites should remain open for peaceful worshippers of all faiths.

According to the Terrestrial Jerusalem Report:

Israel defines Al Aqsa as the structure of the mosque, as does the wording of the Statement, whereas Muslims define Al Aqsa as the entire esplanade of Haram al Sharif/the Temple Mount. Consequently, according to Israel (and apparently to the United States), anything on the Mount that is not the structure of the mosque is defined as "one of Jerusalem's other holy sites", and open to prayer by all – including Jews. Accordingly, Jews may now be permitted to pray on the Temple Mount, just not in the mosque....

Both the Israeli Prime Minister and the US negotiating team fully understand the significance of every word and every nuance relating to Jerusalem in general, and to the Temple Mount/Haram Al Sharif in particular. Consequently, this choice of terminology is neither random nor a misstep, and cannot seen as anything but an intentional, albeit surreptitious attempt to leave the door wide open to Jewish prayer on the Temple Mount, thereby radically changing the status quo.

Recent Articles of Interest

 From SSRN:

From SmartCILP:

Sunday, September 13, 2020

EU Court of Justice Advocate General Says Ban On Ritual Slaughter Is Invalid

The Court of Justice of the European Union last week released an Advocate General's opinion concluding that a decree of Belgium's Flemish region effectively banning kosher and Halal slaughter violates European Union law.  In Centraal Israëlitisch Consistorie van België and Others, (Sept. 10, 2020), Belgium's Constitutional Court requested a preliminary ruling on whether the Flemish region can require stunning of animals prior to slaughter.  The Advocate General concluded that the questions referred to the Court of Justice be answered as follows:

Point (c) of the first subparagraph of Article  26(2) of Council Regulation (EC) No  1099/2009 of 24 September 2009 on the protection of animals at the time of killing, read together with Article 4(1) and 4(4) thereof, and having regard to Article 10 of the Charter of Fundamental Rights of the European Union and Article 13 TFEU, must be interpreted as meaning that Member States are not permitted to adopt rules which provide, on the one hand, for a prohibition of the slaughter of animals without stunning that also applies to the slaughter carried out in the context of a religious rite and, on the other hand, for an alternative stunning procedure for the slaughter carried out in the context of a religious rite, based on reversible stunning and on condition that the stunning should not result in the death of the animal.

It had been argued that it should be at least permitted to require stunning that is reversible just prior to slaughter.  The Advocate General rejected this claim, saying in part:

There has also been some debate before the Court as to whether the prior reversible stunning which does not lead to the death of an animal or post-cut stunning of vertebrates satisfies the particular methods of slaughter prescribed by religious rites of both the Muslim and Jewish faiths. In that regard, it would seem that there are divergent views on the matter within both faiths. As I pointed out in my Opinion in Case C-243/19 A. v. Veselibas Ministrija, a secular court cannot choose in relation to the matters of religious orthodoxy:

[Thanks to Law & Religion UK for the lead.]