Canadian Court Enjoins Enforcement of Guidelines That Adversely Impact Kosher Slaughtering

 In Jewish Community Council of Montreal v. Canada (Attorney General), (CA Fed. Ct., July 24, 2024), a judge of the Canadian Federal Court issued an interlocutory injunction preventing the Canadian Food Inspection Agency from enforcing Guidelines that require kosher slaughterers that do not stun animals before slaughter to test three indicators of unconsciousness before suspending an animal. Jewish organizations that are plaintiffs in the case say that imposition of the new Guidelines has reduced the volume of kosher beef produced in Canada by 55% and the volume of kosher veal by 90%. The court said in part:

The issue is therefore whether the Guidelines requiring the application of the three indicators of unconsciousness to ensure that an animal is unconscious before suspension, as required under section 143 of the SFCR, are reasonable when applied to shechita, or whether they represent an encroachment on the Applicants’ right to freedom of religion under subsection 2(a) of the Charter, or whether the requirement is discriminatory under section 15 of the Charter....

The Applicants submit that the Guidelines constitute a major departure from prior practice and are unduly protective as they essentially require that the animal be brain-dead before being suspended, when section 143 of the SFCR only requires that the animal be unconscious.... The Guidelines therefore require an unreasonable application of the precautionary principle which does not measurably add to animal welfare (as required under sections 141 to 144 of the SFCR) while slowing down the operation of kosher slaughter to the point where licence holders prefer to cease production. As a result, the Guidelines restrict access to kosher meat and prevent Canadian Jews from exercising the requirements of their faith.

The Guidelines are also discriminatory as they unfairly associate a religious practice of shechita to animal pain, and impose a challenge that does not apply to non-kosher meat production. The Guidelines therefore impose on Jews a burden and deny them benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage. Their Charter rights to freedom of religion and the right to equality enshrined in the Charter are therefore unjustifiably restricted....

For the perspective of shochetim and bodkim, they are deprived of their ability to practise their faith and profession, as they can no longer exercise their duties as religious leaders in the community. As shochetim and bodkim represent a precious resource for the Canadian Jewish community, the loss of their expertise will encroach on the Canadian Jewish community’s culture and collective aspect of religious beliefs. The interference is therefore substantial, both from an individual and collective point of view....

Hamodia reports on the decision. 

States Lack Standing to Challenge FDA's Rules on Dispensing of Abortion Pill

In State of Washington v. U.S. Food and Drug Administration, (9th Cir., July 24, 2024), the U.S. 9th Circuit Court of Appeals refused to permit the state of Idaho (and 6 other states) to intervene in a lawsuit brought by a group of states led by the state of Washington challenging the FDA's restrictions on pharmacies' dispensing of the abortion pill mifepristone. FDA regulations adopted in 2021 allow mifepristone to be dispensed by pharmacies in retail locations or by mail, but only if the pharmacy is specially certified to do so. Washington's lawsuit contends that the certification and documentation requirements are unnecessary.  Idaho, on the other hand, wants the court to order the FDA to go back to earlier requirements that only allowed mifepristone to be dispensed in person by a physician and did not allow it to be obtained directly from pharmacies. The court concluded that because Idaho seeks fundamentally different relief that does Washington, it must establish its own standing in order to intervene. The court concluded that Idaho did not have separate standing, saying in part:

Idaho first alleges that elimination of the in-person dispensing requirement will cause the state economic injury in the form of increased costs to the state’s Medicaid system.  At oral argument, Idaho stated that this is its “strongest basis” for standing.  Even taking Idaho’s highly speculative allegations as true, the complaint does not demonstrate an injury-in-fact because it depends on an attenuated chain of healthcare decisions by independent actors that will have only indirect effects on state revenue....

Idaho next alleges that elimination of the in-person dispensing requirement will harm its sovereign interest in law enforcement by making illegal mifepristone use harder to detect.  This allegation is insufficient to convey standing because nothing in the 2023 REMS impairs Idaho’s sovereign authority to enact or enforce its own laws regulating chemical abortion....

Finally, Idaho alleges that elimination of the in-person dispensing requirement will harm its “quasi-sovereign interest” in maternal health and fetal life.  Idaho cannot sue FDA on this basis because the allegations concern the interests of individual citizens—not the separate interests of the state itself....

Courthouse News Service reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Arkansas Supreme Court Orders Initial Count of Signatures on Abortion Amendment Petitions

 In Cowles v. Thurston, (AR Sup. Ct., July 23, 2024), the Arkansas Supreme Court ordered the state Secretary of State to perform an initial count of signatures submitted by volunteer canvassers for a state constitutional amendment that would give women the right to obtain an abortion during the first 18 weeks after fertilization, and later in cases of rape, incest, fatal fetal anomaly, or to protect the mother's life or physical health. As previously reported, the Secretary of State rejected all the petitions because they were not accompanied by required paperwork regarding those submitted by paid canvassers. 3 Justices would have gone further and given proponents a 30-day cure period. Arkansas Advocate reports on the Court Order. [Thanks to Thomas Rutledge for the lead.]

Equally Divided New Jersey Supreme Court Dismisses Defamation Suit Against Jewish School

 In Hyman v. Rosenbaum Yeshiva of North Jersey, (NJ Sup. Ct., July 24, 2024), an equally divided New Jersey Supreme Court decision resulted in affirmance through a short per curiam opinion of the dismissal of defamation claims brought against an Orthodox Jewish school by a Judaic Studies teacher whose employment by the school was terminated. The Justices were equally divided on whether discovery should be permitted in the case.

The 6 justices participating in the decision unanimously agreed on the standard for applying the ministerial exception, saying that the court must analyze each element of plaintiff's claim and determine whether adjudicating it would require the court to choose between competing religious visions or would interfere with a church's administrative prerogatives including its right to select and control the duties of its ministers, whether or not the alleged misconduct is rooted in religious belief. Here plaintiff's employment was terminated for inappropriate touching of female students. Information about his termination was emailed to the school's Board of Directors, parents of current students and faculty members. The letter was subsequently disseminated on social media.

Justice Patterson's concurring opinion for 3 justices said in part:

Here, the religious employer’s allegedly defamatory statement was not a description of claimed misconduct by Hyman; no such description appears in Price’s letter to the school community.  Instead, Hyman’s defamation claims are premised on Price’s statement that “it was determined that Rabbi Hyman’s conduct had been neither acceptable nor consistent with how a rebbe in our Yeshiva should interact with students.”  In short, the statement at the heart of this case was not an assertion of fact about the former students’ allegations, but an explanation of the Yeshiva’s decision to terminate Hyman -- a determination made in consultation with halachic authorities as well as legal counsel.  With or without discovery regarding the details of the allegations, the court’s inquiry as to the merits would be the same:  the court would be required to assess the reasons for a religious institution’s decision to terminate the employment of a minister, an inquiry that would violate the First Amendment.

Justice Pierre-Louis' dissenting opinion for 3 justices said in part: 

In order for a court to make [a determination that the ministerial exception applies] ... plaintiffs must be allowed discovery.... [U]nder the concurring opinion’s analysis, a religious entity can seemingly fire an employee based solely on a personal vendetta, publish a knowingly false and defamatory statement about the plaintiff, and shield itself from liability -- and even discovery -- by invoking the ministerial exception.  Such a holding slams the courthouse door shut on potentially wronged plaintiffs before they can even obtain discovery that would allow a court to determine whether adjudicating their claims actually interferes with religious autonomy....

Defendants have conflated the issues in this case, making it appear as though this defamation case is the same as an employment discrimination case.  But assessing the legality of what a religious institution says about an adverse employment action is not the same thing as determining the lawfulness of the adverse action itself.  The latter necessarily requires a court to interfere with a religious institution’s internal management, its doctrinal specificities, and its decisions regarding who preaches the faith, but the former does not.

Becket Fund issued a press release announcing the decision.

Leader in International Neo-Nazi Group Indicted for Soliciting Hate Crimes and Mass Violence

The U.S. Attorney's Office for the Eastern District of New York announced last week the federal indictment of the leader of an international neo-Nazi group. The press release said in part:

A federal grand jury in Brooklyn yesterday returned a four-count indictment charging Georgian national Michail Chkhikvishvili, also known as ... “Commander Butcher” ... with soliciting hate crimes and acts of mass violence in New York City.  Chkhikvishvili was arrested in Chișinău, Moldova on July 6, 2024 pursuant to an Interpol Wanted Person Diffusion.... Chkhikvishvili is alleged to be a leader of the Maniac Murder Cult,... an international racially or ethnically motivated violent extremist group.  Chkhikvishvili allegedly recruited others to commit violent acts in furtherance of MKY’s ideologies, including planning and soliciting a mass casualty attack in New York City....

Beginning in approximately November 2023, Chkhikvishvili solicited [an FBI undercover agent ("UC")] ... to commit violent crimes....  Chkhikvishvili provided detailed plans and materials such as bomb-making instructions and guidance on making Molotov cocktails.... In November 2023, Chkhikvishvili began planning a mass casualty attack in New York City to take place on New Year’s Eve.  The scheme involved an individual dressing up as Santa Claus and handing out candy laced with poison to racial minorities.  The scheme also involved providing candy laced with poison to children at Jewish schools in Brooklyn.  Chkhikvishvili drafted step-by-step instructions to carry out the scheme and shared with the UC detailed manuals on creating and mixing lethal poisons and gases.  He also instructed the UC on methods of making ricin-based poisons in powder and liquid form....

Prison Sentences Imposed in Two Separate Antisemitism Cases

Yesterday, an Indiana federal district court sentenced 67-year-old Andrezj Boryga to 24 months in prison followed by two years of supervised release after Boryga pleaded guilty to transmitting antisemitic threats in interstate commerce.  According to a Justice Department press release:

... [B]etween July 9 and Dec. 14, 2022, Boryga left voicemails at Anti-Defamation League offices located in New York, Texas, Colorado, and Nevada. Boryga used antisemitic slurs on eight voicemails as he threatened to assault or kill Jewish people.

Yesterday a New Jersey federal district court sentenced 29-year-old Dion Marsh to 40 years in prison followed by 5 years of supervised release after Marsh pleaded guilty to committing a series of violent assaults on visibly identifiable members of the Lakewood, New Jersey, Orthodox Jewish community.  According to a Justice Department press release:

[Marsh] pleaded guilty... to ... five counts of violating the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act and one count of carjacking. With respect to the Shepard Byrd Act violations, Marsh admitted to willfully causing bodily injury to five victims and attempting to kill and cause injuries with dangerous weapons to four of the victims because they are Jewish.

Report Ranking States on Legal Protections for Religious Liberty Released

 Last Friday, the Center for Religion, Culture and Democracy announced release of its 2024 report (full text) on Religious Liberty in the States. According to the Report:

Now in its third annual edition, RLS 2024 considers thirty-nine distinct kinds of legal provisions that states may adopt to protect religious liberty. These legal provisions, which we refer to as “items,” are aggregated into sixteen “safeguards” that we then average to produce one index score per state. The index allows us to rank states and to track changes in religious liberty protections over time....

States are far more likely to pass some protections than others. States either do not have mandates that require health-insurance plans to cover contraception, abortion, and/or sterilization or, if they do, most include a religious accommodation so that organizations that have religious objections to covering such procedures are not compelled to do so. Every state in the union requires children to be vaccinated before attending public (and sometimes private) schools, but the vast majority provide exemptions for families that have religious objections to vaccinations. And most states either provide absentee ballots for any reason or permit individuals who have religious commitments that prevent them from voting in person to receive them. 

The least widely adopted protections include guaranteeing that medical professionals and organizations with religious objections to providing contraception will not be compelled to do so. Very few states permit public officials who may be asked to participate in a wedding ceremony to decline to do so for religious reasons. Finally, only one state permits for-profit businesses to decline to participate in wedding ceremonies to which their owners/employees have sincere religious objections.

 This year's report ranks Illinois first and West Virginia 50th in protections for religious liberty.

Church Obtains Preliminary Injunction Under RLUIPA Allowing Its On-Site Shelter Program to Continue

In Church of the Rock, Inc. v. Town of Castle Rock, Colorado, (D CO, July 19, 2024), a Colorado federal district court granted a church a preliminary injunction preventing the Town of Castle Rock from interfering with the church's use of an RV and a trailer on church property in its On-Site Temporary Shelter Ministry. The court said in part:

The Town argues that the Church’s RLUIPA claim is not likely to succeed because the applicable zoning regulations do not substantially burden the Church’s exercise of its religious beliefs.... The Town instead characterizes the nature of the burden as a “mere inconvenience” and suggests that the Church could find other ways to satisfy its religious compulsion to provide for the needy, such as by providing hotel rooms or housing in other areas that are zoned for residential use.... It also suggests that finding a substantial burden in this case “effectively would be granting an automatic exemption to religious organizations from generally applicable land use regulations.”

The Church responds that its religious beliefs don’t just obligate it to provide for the needy in some general way; they obligate it to provide for the needy on Church property....

The Church has carried its burden on this question.... Although the Town alludes to a bit of a disconnect between the Church’s assertion that it is compelled to allow the poor to “live among you” and its desire to have people live in RVs on Church grounds rather than in homes and residential areas where Church members live, it does not ultimately dispute the sincerity of the Church’s assertions on this point, which are supported by sworn affidavits....

(See prior related posting.)  CBS News reports on the decision.

Recent Articles of Interest

From SSRN:

• Perry Dane, Some Thoughts on the Architecture of Freedom of Religion and Freedom of Speech, (Notre Dame Law Review Reflection (2024)).
• Nitsan Plitman, Harnessing Religious Arguments for The Benefit of Trans Advocacy: A New Approach, (Harvard Civil Rights - Civil Liberties Law Review, Vol. 58, pp. 395 (2023)).
• Matthew Cavedon, Fraternal Pluralism: How Catholics Approach Others, (July 15, 2024).
• Michel Rosenfeld, The Place of 'Hate' in Hate Speech: A Jurisprudential and Comparative Constitutional Inquiry, (Oxford Handbook of Hate Speech, Cardozo Legal Studies Research Paper No. 2024-28).
• Jeffrey A. Redding, Queer in a Time of Kashmir, (October 06, 2023).
• Areeba Butt, Minority Rights Under International Law, (July 03, 2024).
• Tyler B. Lindley, Anachronistic Readings of Section 1983, (June 14, 2024).
• Jordan Carr Peterson, Implementing Equality: State (Non)Compliance with Judicial Revisions to Public Policy on Gay Rights, (Law & Policy, Forthcoming).

From SmartCILP:

• Saumya Saxena, Policing Sati: Law, Order, and Spectacle in Postcolonial India, 41 Law & History Review 341-363 (2023).
• Leilah Vevaina, Mergers and Legal Fictions: Coverture and Intermarried Women in India, 41 Law & History Review 387-404 (2023).

Religious College Loses RFRA Challenge to SBA's Loan Forgiveness Rules

 In Gordon College v. U.S. Small Business Administration, (D DC, July 18, 2024), the D.C. federal district court dismissed claims by a religious nonprofit college that its rights under RFRA as well as the 1st and 14th Amendments were infringed when it was denied forgiveness of a $7 million loan that it received under the Covid era Paycheck Protection Program. Loan forgiveness was available to qualifying small businesses. Gordon College's loan forgiveness application was denied because it had over 500 employees and thus did not meet the SBA's small-business size standard. Rejecting plaintiff's RFRA claim, the court said in part:

... [P]laintiff fails to identify a “sincere religious belief” that has been infringed by application of the PPP’s 500-employee cap to plaintiff.... Absent here ... is any articulated connection between plaintiff’s asserted need to have more than 500 employees and its exercise of religion.  Plaintiff, for example, does not allege that “any religious group” has “as one of its tenets” the requirement that an associated religious institution have more than 500 employees ... or that it has treated having more than 500 employees to “ris[e] to [any] level of significance in [its] religion.”...

As to plaintiff's Constitutional challenges, the court said in part: 

... [T]he application of the PPP’s 500-employee cap to plaintiff is neutral and generally applicable, thereby triggering rational basis review, rather than strict scrutiny.  Plaintiff has failed to bring a rational-basis challenge by not plausibly alleging that no reasonable set of facts could provide a rational basis for the PPP’s 500-employee cap.  Accordingly, plaintiff’s Free Exercise and Equal Protection claims are dismissed....

Here, plaintiff alleges that “[d]efendants have interfered with the autonomy of [plaintiff] to define its own doctrine, membership, employment, staffing, affiliation, and other internal requirements” by “insisting on certain requirements [sic] for determining staffing and employment.... [P]laintiff has failed ... to explain why the PPP’s 500-employee cap... interfered with any “matters of faith and doctrine.”  Plaintiff’s religious autonomy claim is thus dismissed.

International Representatives Release Guidelines for Countering Antisemitism

On Wednesday in Buenos Aires, Argentina, representatives of 36 nations and international organizations, including U.S. Special Envoy to Monitor and Combat Antisemitism Ambassador Deborah Lipstadt, released a set of legally nonbinding Global Guidelines for Countering Antisemitism (full text). Thursday was the 30th anniversary of the 1994 Hizballah bombing of the Asociación Mutual Israelita Argentina (AMIA) in Buenos Aires in which 85 people were killed. On Thursday, Secretary of State Blinken issued a statement (full text) announcing the Guidelines, saying in part:

The United States is pleased to play a leadership role, together with the European Union, the Organization of American States, the Government of Argentina, and other governments and international bodies, in advancing these guidelines and we invite others across the international community to endorse and implement them.  The Guidelines identify practical actions that governments, international bodies, civil society organizations, and people of conscience everywhere can take against antisemitism wherever and whenever it occurs.

Suit Challenges California's Ban on School Parental Notification Requirements as to Gender Transitioning

A school district and parents of school-age children filed suit this week in a California federal district court challenging California's recently-enacted AB 1955.  The statute prohibits school districts from requiring notification of parents when their children are socially transitioning their gender in school, unless the student consents to the disclosure. The complaint (full text) in Chino Valley Unified School District v. Newsom alleges that the statute violates parental rights to control the upbringing of their children and parents' free exercise rights as well as being preempted by the federal Family Educational Rights and Privacy Act. The complaint alleges in part:

The Parent Plaintiffs have each alleged that they are devout Christians who believe God created man and woman as distinct, immutable genders; their religious beliefs require that they be notified if their child requests to socially transition at school so that they may be involved with their child's treatment at school.

ABC News 10 reports on the lawsuit.

Russian Court Bans Online Sale of Souvenir Toilet Paper: Depiction Offends Feelings of Religious Believers

Moscow Times and Vyorstka reported yesterday that a Russian District Court in Moscow has banned the offering on four websites in Russia of souvenir toilet paper imprinted with images of the 1997 version of Russia's 1000-ruble bills. The court found that the toilet paper "offends the feelings of religious believers" in violation of Article 148 of the Russian Penal Code. The 1000-ruble bill carries a picture of a statue of Yaroslav the Wise who was Grand Prince of Kiev from 1019 to 1054. Yaroslav the Wise was canonized in 2016 by the Bishops Council of the Russian Orthodox Church. Prior to that, in 2005 he was named a local saint by the Patriarch of Moscow and in 2004 he was included in the calendar of saints of the Ukrainian Orthodox Church (Moscow Patriarchate). The court said in part:

In a free democratic society, the dissemination of illegal information capable of offending the religious feelings of believers cannot be protected by freedom of thought, speech, opinion and information

Company Settles EEOC Suit for $110,000, Compensating Employee Whose Religious Objections to Vaccine Were Ignored

 A national furniture retailer, Hank's Furniture, has settled a Title VII religious discrimination lawsuit brought against it by the EEOC. Under a consent decree, Hank's will pay $110,000 in damages and will implement a written policy assuring broad accommodation of religious beliefs that do not impose an undue burden. According to the EEOC's press release:

... [A] former assistant manager at HFI’s Pensacola, Florida, location notified the company that her religious beliefs prevented her from receiving a COVID-19 vaccine. Rather than discuss the employee’s religious beliefs to determine the feasibility of an accommodation, management ignored accommodation requests then summarily denied the employee’s requests and attempted to dispute the validity of her sincerely-held religious beliefs.