Cert. Denied in Mootness Dismissal of Free Exercise Challenge to Mask Mandate

The U.S. Supreme Court this morning denied review in Resurrection School v. Hertel, (Docket No. 22-181, certiorari denied 10/31/2022). (Order List.) In the case, an en banc panel of the U.S. 6th Circuit Court of Appeals held by a vote of 13-1-3 that a free exercise challenge to Michigan's COVID mask mandate for school children is moot. (See prior posting.)

National Motto in Public Schools Again Upheld

 In JLF v. Tennessee State Board of Education, (MD TN, Oct. 27, 2022), plaintiff asked a Tennessee federal district court to reconsider its prior holding that display of the national motto "In God We Trust" in a public charter school lobby did not violate the Establishment Clause. Plaintiff argued that the U.S. Supreme Court's holding in Kennedy v. Bremerton School District which rejected the Lemon test and adopted the Historical Practice test for Establishment Clause cases constitutes an intervening change in controlling law. However, the court denied plaintiff's motion to reconsider, saying in part:

Kennedy has no effect on the court’s previous ruling, because the court did not rely on Lemon to reject the plaintiff’s Establishment Clause claim and, instead, considered the national motto in its historical context to conclude that its posting in public schools does not violate the Establishment Clause.

Recent Articles and Books of Interest

 From SSRN:

• Andrew M. Koppelman, The Emerging First Amendment Right to Mistreat Students, (Case Western Law Review, Forthcoming).
• Ana Maria Celis Brunet & Jorge Barrera-Rojas, Erosion of Religious Freedom in Latin America: Extreme Secularism and Deinstitutionalization as a Path to a Future Religious Persecution, (Notre Dame Law Review Reflection 2022).

From SmartCILP and elsewhere:

• Anna Rodriguez, Culture War Politics & the Rise of Religious Exemptions against Reproductive Health Access: Pitting Patients against Religious Freedom Is a Losing Game, 25 Journal of Gender Race & Justice 1-44 (2022).
• Jeremy Schwartz & Jessica Priest, Churches are breaking the law and endorsing in elections, experts say. The IRS looks the other way, (Texas Tribune- Pro Publica Investigative Unit, Oct. 30, 2022).

Recent and Forthcoming Books of Interest:

• Andrew I. Port, Never Again-- Germans and Genocide after the Holocaust, (Harvard University Press, May 2023).
• Robert Hutchinson, After Nuremberg-- American Clemency for Nazi War Criminals, (Yale University Press, Oct. 2022).

Denial of Jury Instruction on Defendant's Religious Exercise Is Upheld

In United States v. Dickey, (7th Cir., Oct. 28, 2022), the U.S. 7th Circuit Court of Appeals upheld a trial court's refusal to give a jury instruction sought by a criminal defendant who was the leader of her own church, Deliverance Tabernacle Ministry, who was convicted of wire fraud and forced labor.  According to the court:

[T]hrough her proselytizing, Dickey groomed vulnerable victims and forced them to disavow their families, live in the church, and work multiple full‐time jobs. The victims would then give Dickey all their wages, which she would keep for herself.... If someone disobeyed, Dickey threatened them with violence and required them to be homeless until she considered them redeemed. All told, her scheme netted $1.5 million, most of which came from DTM members. She spent over $1 million on personal expenses, such as travel, rental and vacation properties, and luxury hotels....

Dickey wanted the jury instructed as follows:  

You should not consider the ways in which the Defendant exercised or practiced her religion in determining whether she is guilty of these charges. All individuals have a right to the free exercise of religion.  

Her proposed jury instruction failed at the outset because it is not an accurate statement of the law. Dickey’s proposed instruction would have excused her criminal conduct based on her religious assertions. That broad interpretation finds no support in the caselaw. To the contrary, neutral laws of general applicability are consistent with the First Amendment.

Suit Over Teaching 1st Graders About Transgender Topics Moves Forward

In Tatel v. Mt. Lebanon School District, (WD PA, Oct. 27, 2022), a Pennsylvania federal district court allowed parents of first graders to move ahead with their due process, equal protection and free exercise claims against a teacher who has a transgender child for teaching their students about transgender topics over parental objections. It also permitted plaintiffs to move ahead against school administrators, the school board and the school district   The court summarized its decision, saying in part:

[T]he factual allegations in the complaint present plausible claims that Parents have fundamental constitutional rights (pursuant to Substantive and Procedural Due Process under the Fourteenth Amendment and the First Amendment Free Exercise clause) that were violated by a public school teacher, over the Parents’ objections and without notice and opt out rights, when the teacher promoted her own agenda to their first grade children about gender dysphoria and transgender transitioning, including showing videos or reading books about those topics, telling the children that the Parents may be wrong about the child’s gender, telling a child she would never lie (implying the parents may be lying about the child’s identity), telling the children to keep the discussions about transgender topics secret, and grooming a student to become a transgender child. The Equal Protection and familial privacy claims asserted by the Plaintiffs are plausible, but will benefit from further factual development. 

A claim based on the children's privacy rights was dismissed without prejudice.

Scottish Court Awards Damages for Franklin Graham's Cancelled Event

 In Billy Graham Evangelistic Association v. Scottish Event Campus Limited, (Glascow Sheriff's Ct., Oct. 24, 2022), a trial court in Scotland concluded that a large arena in Scotland whose majority owner is the city of Glascow violated the Equality Act when it cancelled an appearance by evangelist Franklin Graham because of concern that he might make homophobic and Islamophobic comments during his appearance. The court awarded Graham's organization damages equivalent to $112,000(US). The court said in part:

The event was cancelled because of (a) the religious or philosophical beliefs of the pursuer and Franklin Graham as viewed by the defender and (b) the reaction by others to the religious or philosophical beliefs professed by the pursuer and/or Franklin Graham. Those objectors had included the defender’s principal shareholder, its sponsor, objectors on social media, some press, an MSP and persons representing contrasting religious views.

(See prior related posting.) Charlotte Observer and BBC News report on the decision.

Prof Who Criticized Native American Grave Repatriation Laws Can Move Ahead with Retaliation Suit

In Weiss v. Perez, (ND CA, Oct. 19, 2022), a California federal district court allowed a tenured professor of physical anthropology at San Jose State University to move ahead against most of the defendants she named in a lawsuit alleging that the University has retaliated her against because of her opposition to repatriation of Native American remains.  In a book that Prof. Elizabeth Weiss co-authored that was published in 2020, she argued that the Native American Graves Protection and Repatriation Act and the California Native American Graves Protection and Repatriation Act "undermine objective scientific inquiry and violate the Establishment Clause of the United States Constitution by favoring religion over science." She expressed similar views in an op-ed and on Twitter.  Weiss claims that because of her speaking on this issue, the University has interfered with her research and limited her professional activities in a number of ways that have reduced her responsibilities and damaged her professional reputation. The Art Newspaper reports on the decision.

Kroger Settles Religious Accommodation Suit With EEOC

As reported by HR Dive, the EEOC announced yesterday that it has reached a settlement in a religious discrimination suit it had filed against a Conway, Arkansas Kroger store for failing to accommodate two employees who refused to wear the company's apron which features a four-color heart symbol. Kroger developed the symbol as part of a campaign emphasizing the company's four service-based commitments. The employees insisted that the symbol promotes the LGBT community which the employees' religious beliefs preclude them from doing. (See prior posting.) Under the settlement, Kroger will pay each employee $20,000 in back pay plus $52,000 each in additional damages.  Another $36,000 in damages is apparently for attorneys' fees.  Kroger has also agreed to create a religious accommodation policy and will give additional religious discrimination training to store manage­ment.

Today Is International Religious Freedom Day

Today is International Religious Freedom Day, marking the 24th anniversary of the signing of the International Religious Freedom Act of 1998. Statements marking the day have been issued by the U.S. Commission on International Religious Freedom and the U.S. State Department.

EEOC Sues Over Refusal to Accommodate First Responders' Need to Wear Beards

The EEOC announced yesterday that it has filed a Title VII and ADA suit against Global Medical Response, Inc. and American Medical Response, Inc. which operate one of the largest medical transport companies in the country. The suit alleges that the companies have refused to accommodate employees in EMT and paramedic positions who wish to wear facial hair for religious reasons or because of medical conditions. The companies contend that facial hair prevents respirators from fitting properly, but the EEOC says that the companies should have accommodated the religious and medical needs of employees by allowing them to wear the type of respirators that would have allowed them to maintain beards.

Brooklyn Yeshiva Will Pay Additional $5 Million In Penalties for Lunch Program Fraud

The U.S. Attorney's Office for the Eastern District of New York announced on Monday that Central United Talmudic Academy, a yeshiva in Brooklyn, has entered a three-year deferred prosecution agreement under which it has agreed to pay $5 million in penalties for conspiracy to commit wire fraud.  This is in addition to $3 million in restitution it has already paid. The Announcement describes "several overlapping frauds" to which CUTA has admitted, saying in part:

According to admissions in the statement of facts and other public documents, between 2014 and 2016, CUTA received more than $3.2 million in reimbursement for a meal program that purported to feed students of the yeshiva.  The program was almost entirely fictitious.  Rather than feed its children, the School diverted the funding, including to subsidize parties for adults. To commit the crime, the School fabricated records and made dozens of sworn misrepresentations to government agencies.

During the investigation into the fictitious meal program, the investigative team uncovered evidence of other fraudulent conduct by the School and its employees.  In addition to the program fraud noted above, this included various payroll practices that enabled the School’s employees to commit benefit and tax fraud....

By underrepresenting its employees’ income, CUTA enabled its employees to obtain various public benefits—including health care and childcare—that would not have been available if the employees honestly reported their income.

Officials of the school have previously pleaded guilty and been sentenced for fraud. The Announcement was also posted in Yiddish on the website of the U.S. Attorney's Office. Gothamist reports on the agreement.

Buffalo Catholic Diocese Reaches Settlement With New York AG In Suit Over Handling of Sex Abuse Claims

The Catholic Diocese of Buffalo announced yesterday in a press release and a Letter to the Faithful that it has reached a settlement with the New York Attorney General in the suit brought against it and two of its former bishops alleging that they mishandled complaints of sexual abuse of minors and vulnerable adults. (See prior posting.) The provisions of the Stipulated Final Order (full text) in People of the State of New York v. Diocese of Buffalo, (SD NY, Oct. 24, 2022) were described by Bishop Michael Fisher in part as follows:

The settlement that the Diocese and the New York Attorney General have agreed to confirms that the rigorous policies and protocols the Diocese has put in place over the past several years are the right ones to ensure that all young people and other vulnerable persons are safe and never at risk of abuse of any kind by a member of the clergy, diocesan employee, volunteer, or member of a religious order serving in the Diocese of Buffalo.  At the same time, we have strengthened our Safe Environment policies with the Priest Supervision Program which I implemented in June of last year to account for priests removed from active ministry, and with the additional appointment of a new Child Protection Policy Coordinator. We hope that these initiatives, along with our commitment to producing an additional detailed annual compliance audit by an independent auditor, will provide further evidence of our commitment to the level of accountability and transparency that all Catholic faithful and the broader public rightly deserve and require.

Certiorari Filed in Challenge to Arkansas Anti-BDS Law

 A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Arkansas Times, LP v. Waldrip, (Sup. Ct., filed 10/20/2022). In the case, the U.S. 8th Circuit Court of Appeals sitting en banc, in a 9-1 opinion, upheld against a free speech challenge Arkansas' law requiring public contracts to include a certification from the contractor that it will not boycott Israel. (See prior posting.) ACLU issued a press release announcing the filing of the petition for review.

Yeshiva University Creates New LGBTQ Student Group Amid Litigation

Yeshiva University, which is embroiled in litigation over whether it must recognize an LGBTQ student group, YU Pride Alliance, yesterday announced that it has approved a new club for undergraduate LGBTQ students "that presents an approved traditional Orthodox alternative to YU Pride Alliance." Known as Kol Yisrael Areivim Club, the new organization is described by the University:

This newly founded undergraduate student club, which emerges from Yeshiva’s principles and its students’ interest for a club under traditional Orthodox auspices, was approved by the Administration, in partnership with lay leadership, and endorsed by senior Roshei Yeshiva. It also reflects input and perspectives from conversations between Yeshiva’s rabbis, educators, and current and past undergraduate LGBTQ students. The club will provide students with space to grow in their personal journeys, navigating the formidable challenges that they face in living a fully committed, uncompromisingly authentic halachic life within Orthodox communities. Within this association students may gather, share their experiences, host events, and support one another while benefiting from the full resources of the Yeshiva community – all within the framework of Halacha – as all other student clubs.

The University said it also wants to strengthen its support systems for LGBTQ students. 

YU Pride Alliance issued a response to the University's announcement, calling it a "desperate stunt" by the University, saying in part:

The YU sham is not a club as it was not formed by students, is not led by students, and does not have members; rather it is a feeble attempt by YU to continue denying LGBTQ students equal treatment as full members of the YU community.

Both sides say the current litigation will continue. The Forward reports on these developments.

Today Is Diwali; NYC Schools To Recognize It

Today is Diwali, the Hindu Festival of Lights which is also celebrated by some Jains, Sikhs and Buddhists. As reported by CNN, last Thursday New York City Mayor Eric Adams announced that starting next year, Diwali will be a public school holiday in New York City.  In order to keep the same number of school days in the academic year, state legislation has been introduced to allow New York City public schools to no longer celebrate Anniversary Day as a holiday. Anniversary Day (also known as Brooklyn-Queens Day) is variously described as celebrating the opening of the first Protestant Sunday School on Long Island or the founding of the Brooklyn Sunday School Union in 1816.

UPDATE: Here is President Biden's statement sending greetings for a happy Diwali.

State's Removal of 16-Year-Old Transgender Child from Parents' Home Did Not Violate Their Free Exercise Rights

In In re A.C. (Minor Child), (IN App., Oct. 21, 2022), an Indiana state appeals court upheld a trial court's order removing from the home a 16-year old transgender child who suffered from an untreated eating disorder and who was emotionally abused because of their parent's unwillingness to accept their transgender identity. The parents testified that they could not affirm their child's transgender identity or use the child's preferred pronouns because of their religious beliefs.  In rejecting the parents' Free Exercise claims, the court said in part:

[T]he Dispositional Order was based on Child’s medical and psychological needs and not on the Parents’ disagreement with Child’s transgender identity....

Even if the Parents were able to demonstrate that the Dispositional Order imposes a substantial burden on their religious freedom, their claim that Child’s continued removal from the home violates the Free Exercise Clause would fail....  [P]rotecting a child’s health and welfare is well recognized as a compelling interest justifying state action that is contrary to a parent’s religious beliefs.

The court also held that the trial court's order requiring the parents to refrain from discussing Child’s transgender identity during visitation does not violate the parents' free speech rights.

Recent Articles of Interest

From SSRN:

• Jeffrey A. Brauch, Human Germline Editing and a Christian View of Human Nature, (August 25, 2022).
• Ira P. Robbins, The Obsolescence of Blue Laws in the 21st Century, (Stanford Law & Policy Review, Vol. 33, No. 2, 2022).
• Nathan B. Oman, The Development of Modern Latter-day Saint Marriage Rules (July 12, 2022).
• Nathan B. Oman, "Time, Eternity, and Real Estate: Hilton v. Roylance, Mormon Law in Secular Court, and the Opacity of Religion", (July 12, 2022).
• Rebecca Aviel & Wiley Kersh, The Weaponization of Attorney's Fees in an Age of Constitutional Warfare, (Yale Law Journal, Forthcoming).
• Stephen G. Gilles, What Does Dobbs Mean for the Constitutional Right to a Life-or-Health-Preserving Abortion?, (Mississippi Law Journal, Vol. 92, 2022).
• Frank G. Colella, Incorporation by Reference Nixed a Charitable Deduction for Art, (Tax Notes Federal, Vol. 177, No. 1, p. 35 (Oct. 3, 2022)).

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

• Dhruva Gandhi, Religious Discrimination under the Indian Constitution: Unpacking the Contents of Religion, (Indian Journal of Constitutional Law, 2022).
• Laetitia-Ann Greeff, A Critical Analysis of Parental Corporal Punishment: A Call for Legislative Reform, (October 10, 2022).
• Brandon Reece Taylorian, How Do Governments Use Recognition and Registration to Control Religion, (August 18, 2022).
• Latifatul Fajriyyah & Alfitri, Hearsay Evidence Admissibility: Due Process and Evidentiary Rules in Muslim Marriage Legalization (Isbat Nikah), (Fiat Justisia Jurnal Ilmu Hukum 16, no. 3 (2022): 269-296).
• Ioanna Tourkochoriti, The Constitutional Politics of Religion, (Mark Tushnet and Dimitry Kochenov eds., Research Handbook on the Politics of Constitutional Law (Edward Elgar, 2023), Forthcoming).
• Yulia Ioffe & Hedi Viterbo, Homophobia Disguised as Children’s Rights in Russia’s Constitutional Referendum, (VerfBlog, 2020/6/29).
• Imran A. Nyazee, Foundations of Article 62(1)(f) in Islamic Law (Being Sadiq and Ameen), (October 6, 2022).
• Lucas Lixinski, Religious Heritage in International Law: Nationalism, Culture, and Rights,  (64(1) Pravovedenie 138-155 (2020)).

NY Gun Ban at Places of Worship Violates 2nd Amendment

In Hardaway v. Nigrelli, (WD NY, Oct. 20, 2022), a New York federal district court issued a temporary restraining order barring enforcement of the provision in New York law that prohibits possession of firearms at "any place of worship or religious observation." The suit was filed by two clergy who allege that as leaders of their churches they want to carry firearms on church premises to keep the peace. The court concluded that the state restriction violates the Second Amendment, saying in part:

Here, the state cites to a handful of enactments in an attempt to meet its "burden" to demonstrate a tradition of accepted prohibitions of firearms in places of worship or religious observation.... The notion of a "tradition" is the opposite of one-offs, outliers, or novel enactments....

[T]he Nation's history does not countenance such an incursion into the right to keep and bear arms across all places of worship across the state. The right to self-defense is no less important and no less recognized at these places.

Volokh Conspiracy has more on the decision. [Thanks to Steven H. Sholk for the lead.]

Baker With Religious Objections to Same-Sex Marriage Did Not Violate California's Civil Rights Law

In a tentative decision which becomes final in ten days unless objections are filed, a California state trial court has concluded that a bakery which refuses on religious grounds to furnish custom designed cakes for same-sex weddings and instead refers customers to another bakery for such items did not violate the Unruh Civil Rights Act. In Department of Fair Employment and Housing v. Cathy's Creations, Inc., (CA Super. Ct., Oct. 21, 2022), the court concluded that the state failed to prove intentional sexual orientation discrimination, saying in part:

Miller and Tastries do not design and do not offer to any person-- regardless of sexual orientation-- custom wedding cakes that "contradict God's sacrament of marriage between a man and a woman.

The court went on to hold that because California's Unruh Civil Rights Act is a neutral law of general applicability, the state did not violate defendant's free exercise rights. However, application of the Unruh Civil Rights Act here would violate defendants' free speech rights because it would compel expressive conduct based on content or viewpoint. Thomas More Society issued a press release announcing the decision.

Canadian Court Sentences Former Politician on Charge of Antisemitic Hate Speech

Ottawa City News reports on the sentencing by a Saskatchewan trial court of the leader of a now defunct political party for violation of Canada's hate speech law:

The former leader of the Canadian Nationalist Party was handed a one-year sentence Thursday on a hate speech charge after he called for the genocide of Jewish people in a video posted on the party's website and social media accounts.

Travis Patron, who founded the now-defunct party, was convicted of wilfully promoting hate by a jury earlier this month during a trial in Estevan, Sask.

Justice Neil Robertson of Court of King's Bench accepted the Crown's recommendation that the 31-year-old serve one year behind bars.

Indictment Handed Down in 2018 Shooting of Jehovah's Witness Building

The Justice Department announced yesterday that a federal grand jury in Seattle, Washington has indicted Mikey Diamond Starrett, aka Michael Jason Layes, on one count of damaging religious property and one count of using a firearm during a crime of violence. According to the indictment, in May 2018 Starrett used a semi-automatic rifle to damage the Jehovah’s Witnesses Kingdom Hall of Yelm, Washington because of its religious character. He had also previously been charged with possession of an unregistered firearm.  If convicted, he faces a sentence of up to 20 years in prison on the charge of damaging religious property, plus up to ten years on the other charges. Last September, in U.S. v. Layes, (WD WA, Sept. 14, 2021), a federal magistrate judge ordered Starrett to be held in pre-trial detention.

Florida Education Department Adopts Two Rules On LGBTQ Concerns

 As reported by the Washington Blade, the Florida Department of Education on Wednesday by a unanimous vote adopted two rules relating to LGBTQ issues.  New Rule 6A-10.086 (full text) provides in part:

If a school board or charter school governing board has a policy or procedure that allows for separation of bathrooms or locker rooms according to some criteria other than biological sex at birth, the policy or procedure must be posted on the district’s website or charter school’s website, and must be sent by mail to student residences to fully inform parents.

Amendments to Rule 6A-10.081 (full text) provides that Florida teachers:

Shall not intentionally provide classroom instruction to students in kindergarten through grade 3 on sexual orientation or gender identity....

Violation of the rule can lead to suspension or revocation of a teacher's certificate. 

Britain's Inquiry Into Child Sexual Abuse Publishes Its Final Report

In Britain yesterday, the Independent Inquiry into Child Sexual Abuse which was established in 2015 under the Inquiries Act 2005 published its Final Report. (Full text).  The Executive Summary says in part:

This report is the final statutory report published by the Independent Inquiry into Child Sexual Abuse (the Inquiry). In accordance with the Terms of Reference, it sets out the main findings about the extent to which State and non-State institutions failed in their duty of care to protect children from sexual abuse and exploitation and makes recommendations for reform. It draws on the Inquiry’s 15 investigations and 19 related investigation reports, the Interim Report of the Independent Inquiry into Child Sexual Abuse and 41 other Inquiry reports and publications. The Inquiry has made 20 recommendations in this report. These final recommendations complement the 87 recommendations contained in the previously published investigation reports (including six which have been restated).

Among the Inquiry's 15 investigations were ones into the Roman Catholic Church in England and Wales and the Anglican Church.

Profs Sue University for Including Caste in Antidiscrimination Policy

Suit was filed on Monday in a California federal district court by two California State University professors challenging the University's inclusion of discrimination on the basis of caste in its Interim Antidiscrimination Policy adopted in January. The complaint (full text) in Kumar v. Koester, (CD CA, filed 10/17/2022) alleges in part:

[T]he Interim Policy seeks to define the Hindu religion as including “caste” and an alleged oppressive and discriminatory caste system as foundational religious tenets. That not only is an inaccurate depiction of the Hindu religion, but the First Amendment to the United States Constitution prohibits California and CSU from defining the contours of Hinduism (or any religion)....

The Interim Policy also singles out only CSU’s Hindu employees, professors and students, as well as those of Indian/South Asian origin. No other Protected Status in the Interim Policy addresses any specific ethnicity, ancestry, religion or alleged religious practice,,,

Plaintiffs seek a determination that the term “caste” as used in the Interim Policy is unconstitutionally vague, and the Interim Policy as drafted violates the rights of Plaintiffs (and similarly situated individuals) under the First and Fourteenth Amendments to the United States Constitution, as well as their rights under the California Constitution.

The Hindu American Foundation issued a press release announcing the filing of the lawsuit.

Biden Calls For Federal Law Protecting Abortion Rights

In a talk (full text) at a political event at the Howard Theater in Washington, D.C. on Tuesday, President Biden called for a federal law protecting abortion rights.  He said in part:

And I’ve said before: The Court got Roe right nearly 50 years ago, and I believe Congress should codify Roe once and for all....

Right now, we’re short a handful of votes.  If you care about the right to choose, then you got to vote.  That’s why, in these midterm elections, it’s so critical to elect more Democratic senators to the United States Senate and more Democrats to keep control of the House of Representatives....

And, folks, if we do that, here is the promise I make to you and the American people: The first bill that I will send to the Congress will be to codify Roe v. Wade....  And when Congress passes it, I’ll sign it in January, 50 years after Roe was first decided the law of the land.,,,

European Commission Holding Conference on Halal and Kosher Slaughter

Jerusalem Post reports that today in Brussels, the European Commission, in partnership with the Council of Europe, the OSCE and the U.N. Commissioner for Equality, will hold a conference on "Freedom of religion with regard to religious slaughter." According to the European Commission:

The conference will bring together representatives of the European Union (EU) Member States and other national authorities, special envoys and coordinators on combating antisemitism and anti-Muslim hatred, representatives of national Jewish, Muslim and other religious communities, international organizations and independent experts.

European Court OK's Company Rule Neutrally Banning Wearing of All Signs of Religious Belief

 In L.F. v. S.C.R.L., EU EDJ, Oct. 13, 2022), the Court of Justice of the European Communities, in a request from Belgium for a preliminary ruling, held that a private company may prohibit employees from wearing all visible signs of political, philosophical or religious belief in the workplace.  This would not constitute direct discrimination on the ground of religion or belief in violation of Council Directive 2000/78 so long as the company's policy covers any manifestation of religious, philosophical or spiritual beliefs without distinction and treats all employees alike by requiring them in a general and undifferentiated way to dress neutrally. Such a rule might constitute indirect discrimination if it had a disparate impact on persons of one religion, but would not if it were objectively justified by a legitimate aim and the means of achieving that aim were appropriate and necessary. The question arose in the context of a company's refusal to employ a Muslim woman as an intern because she insisted on wearing a hijab. The Court issued a press release announcing the decision. Law & Religion UK also has coverage.

Recent Articles of Interest

From SSRN:

• Hershey H. Friedman, Mesmerizing Narratives of the Talmud: In Which God Laughs, Satan Sulks, Elijah Rebukes, and Jesters go to Heaven, (August 25, 2022).
• Taylor Kordsiemon, A Right to Marital Rape? The Immorality of the Dobbs Approach to Unenumerated Rights, (12 HLRe 90 (2022)).
• Robin Fretwell Wilson, Harm, Not Privilege. Review of: John Adenitire A General Right to Conscientious Exemption: Beyond Religious Privilege (Cambridge University Press, 2020), Keele Law Review, Volume 4 (2022) 13-41.
• Katie R. Eyer, Transgender Equality and Geduldig 2.0, (October 7, 2022).
• Yvonne Lindgren, Dobbs v. Jackson Women's Health and the Post-Roe Landscape, (October 4, 2022).

From SmartCILP:

• Early Arguments and Contemporary Thoughts: A Festschrift Honoring Michael J. Perry, Emory Law Journal, Vol. 71, Issue 7 (2022).
• John Paul Kimes, Scandal and Due Process: A Canonical Response to the McCarrick Case, [Abstract], 36 Notre Dame Journal of Law Ethics & Public Policy 237-264 (2022).

European Court: Suspended Prison Sentence For Protest In Catholic Church Violated Rights Of Abortion Rights Activist

In Bourton v. France, (ECHR, Oct. 13, 2022) (full text of decision in French), the European Court of Human Rights in a Chamber Judgment held that a French court's imposition of a suspended one-month prison sentence on a 39-year feminist activist charged with "sexual exposure" violated her rights of freedom of expression under the European Convention on Human Rights. The French court had also ordered defendant to pay damages and costs totaling 3500 Euros.  According to the English language press release from the European Court:

On 20 December 2013 [Eloise Bouton] staged a protest in the church of La Madeleine in Paris, but not during mass, by standing in front of the high altar while exposing her breasts, revealing slogans daubed across her body, and pretending to carry out an abortion using raw beef liver as a prop. Her performance was brief and she left the church when so requested by the choirmaster. The protest received media coverage, about ten journalists having been present....

The purpose of the applicant’s mise en scène had been to convey, in a symbolic place of worship, a message relating to a public and societal debate on the positioning of the Catholic Church on a woman’s right to free disposal of her body, including the right to have an abortion.

In these circumstances, the [European] Court [of Human Rights] took the view that the applicant’s freedom of expression should have been afforded a sufficient level of protection since the content of her message related to a matter of public interest....

The Court reiterated that the imposition of a prison sentence for an offence in the area of political speech would be compatible with freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, as, for example, in the case of hate speech or incitement to violence....

The Court found that the grounds given by the domestic courts had not been sufficient for it to consider that they had weighed up the interests at stake in an appropriate manner and in accordance with the criteria established in its case-law....

Pakistan Agency Creates Unit To Handle Blasphemy Complaints

The News on Sunday reports that on Oct. 6 Pakistan's Federal Investigation Agency announced that it has created a dedicated unit to deal with complaints of blasphemy on social media. The report says in part:

Sources in the FIA say the Agency has inadequate manpower and that many officials in its Cybercrime Wing are contractual employees. The number of complaints lodged with the Wing under various categories runs into tens of thousands, an official said. A majority of these complaints are pending because the staff is overburdened.

Lawyer Saiful Malook who has defended several people from marginalised segments of the society accused of blasphemy says the notification is discriminatory. “Neither a high court nor the FIA on its own can create a dedicated unit that is discriminatory and relates to religious freedom and persecution,” he says.

DC Circuit Hears Oral Arguments From Sikh Marine Enlistees

On Tuesday, the D.C. Circuit Court of Appeals heard oral arguments in Singh v. Berger. (Audio of full oral arguments.) In the case, the D.C. federal district court refused to grant a preliminary injunction to three Sikh Marine recruits who wanted to prevent enforcement of the Marine's uniform and grooming policies during recruit training while their case continues to be litigated. Sikh religious beliefs require plaintiffs to maintain an unshorn beard and hair, wear a turban and wear other religious items. (See prior posting.) PTI reports on the oral arguments.

Christian Counselor Challenges City's Conversion Therapy Ban

Suit was filed yesterday in a Wisconsin federal district court challenging the city of La Crosse's ordinance that prohibits medical and mental health professionals from engaging in conversion therapy with anyone under 18 years of age. The complaint (full text) in Buchman v. City of La Crosse, (WD WI, filed 10/13/2022), alleges that the ban on counseling minors to change their sexual orientation, gender identity, gender expression or behaviors violates free speech and free exercise rights of plaintiff, a licensed counselor who approaches counseling through "a Christ-centered lens". It also alleges that the ban is unconstitutionally vague and violates the Wisconsin Constitution's protection of the right of conscience. The complaint says in part:

The Ordinance thus interferes with Ms. Buchman’s ability to decide matters of faith and doctrine for herself and to then infuse her work with these religious beliefs. It attempts to dictate and influence Ms. Buchman’s resolution of those matters. It forces her to choose between her faith and government penalty.

Wisconsin Spotlight reports on the lawsuit.

Anti-Abortion Sidewalk Counselor Challenges Sign Permit Requirement

Suit was filed this week in a Maryland federal district court alleging that Baltimore's sign permit ordinance violates plaintiff's free speech and free exercise rights. The complaint (full text) in Roswell v. City of Baltimore, (D MD, filed 10/10/2022), seeks a preliminary injunction to prevent the city from requiring plaintiff to obtain permits in order to use A-frame signs when engaging in religiously-motivated sidewalk anti-abortion counseling at a Planned Parenthood facility. Thomas More Society issued a press release announcing the filing of the lawsuit.

Pre-School Teacher Sues After Being Fired For Her Stance On Same-Sex Marriage

A child-care employee who was fired by her employer for refusing to read to her pre-schoolers books that celebrate same-sex relationships has filed suit alleging religious discrimination, wrongful termination, harassment and retaliation. The complaint (full text) in Parisenkova v. Bright Horizons Children's Center, LLC, (CA Super. Ct., filed 10/13/2022), filed in a California state trial court, alleges that plaintiff's Christian religious beliefs prevent her from promoting messages that support same-sex marriage. After an initial informal accommodation, the school's director, who took personal offense at plaintiff's religious beliefs, refused to grant plaintiff a formal religious accommodation.  As a prelude to her dismissal, plaintiff was forced to leave the school building mid-day in extremely hot weather.  Plaintiff was terminated after she refused the requirement that she receive diversity awareness training. Thomas More Society issued a press release announcing the filing of the law suit.

Religious Questioning Of Muslim Travelers By Border Officers Upheld

In Kariye v. Mayorkas, (CD CA, Oct. 12, 2022), three Muslim plaintiffs sued the Department of Homeland Security alleging that border officers routinely and intentionally single out Muslim-American travelers to demand they answer religious questions. The court, in a 71-page opinion in its official format, first dismissed plaintiffs' Establishment Clause challenge. Applying the Supreme Court's test articulated in Kennedy v. Bremerton School District, the court said in part:

The court finds substantial legal authority supporting the government's historically broad authority to implement security measures at the border.... Additionally, the court finds substantial authority holding that maintaining border security is a compelling government interest.

The court rejected plaintiffs' free exercise claim, finding that plaintiffs had not sufficiently alleged a substantial burden on their religious exercise. It additionally concluded that even if there was a substantial burden, officers' questioning was narrowly tailored to advance a compelling governmental interest in protecting borders and preventing potential terrorism.

The court also rejected freedom of association, retaliation, equal protection and RFRA challenges to practices of border officers.

Vaccine Objector Loses Challenge

In Marte v. Montefiore Medical Center, (SD NY, Oct. 12, 2022), a New York federal district court dismissed claims by a former Medical Center employee who sued after the Medical Center refused to provide her a reasonable accommodation when she refused to receive a COVID-19 vaccine which was required for all employees.  The court rejected her Title VII claim saying in part:

Plaintiff does not allege that she informed Defendant that she had a religious objection to the COVID-19 vaccination, or even that Defendant was aware that she has a religious objection to the vaccine; she pleads only that she told her employer she did not want the vaccine and asked for "a reasonable accommodation as defined by law." ... Defendant could not have discriminated against Plaintiff on the basis of her religious beliefs if Defendant was unaware of those beliefs....

Even if Plaintiff had pleaded a prima facie claim for religious discrimination, her argument is foreclosed by the Second Circuit's decision in We The Patriots. Defendant correctly argues that Plaintiff's requested accommodation would qualify as an undue hardship because it required Defendant to violate the law.

The court also rejected her free exercise, equal protection and other challenges.

8th Circuit: City Food Ordinance Did Not Violate Pastor's Free Speech Rights

In Redlich v. City of St. Louis, (8th Cir., Oct. 12, 2022), the U.S. 8th Circuit Court of Appeals affirmed the dismissal of a suit brought by a Christian pastor and his assistant challenging a city ordinance that required a permit to distribute potentially hazardous food. Plaintiffs had previously been cited for distributing bologna sandwiches to hungry people they encountered in St. Louis. They contended that as applied to them, the ordinance violated their free speech rights. The court held that even assuming plaintiffs' actions amounted to expressive conduct, the ordinance furthers a substantial governmental interest and is narrowly tailored to that interest. It said in part:

Appellants would be required to pay a $50 fee for the permit at least two days in advance of their food-sharing activities and notify the City of both the time and place where the food would be distributed. These provisions ensure that health inspectors have an opportunity to determine whether the temporary food establishment is complying with the Ordinance.

Courthouse News Service reports on the decision.

New York Yeshivas Sue Over Substantial Equivalency Guidelines

In New York, a group of yeshivas and two organizations have sued challenging the state Board of Regents recently adopted guidelines implementing NY Education Law §3204(2) which requires instruction in nonpublic schools to be at least "substantially equivalent" to that in public schools in the same city or district. The complaint (full text) in In re Parents for Educational and Religious Liberty in Schools, (Albany County Sup. Ct., filed 10/9/2022), alleges in part:

... [T]he New York State Education  Department... has spent the last half decade seeking to impose greater requirements and heightened oversight on these schools than are imposed on other schools in New York, whether public or private....

First, the New Regulations violate the New York State Administrative Procedures Act ... because the public comment process was a sham.... Here, NYSED received more than 300,000 comments in opposition to the proposed regulations but did not truly consider them and did not make any substantive revisions....

Second, the New Regulations violate SAPA by imposing on yeshivas obligations and restrictions not found in other schools. Only yeshivas ... will be prohibited from offering instruction ... in a student’s home language....

Third, the New Regulations create an impermissible de facto licensing requirement through the review and determination process....

The New Regulations frustrate the Petitioners’ constitutionally protected rights to the free exercise of religion and free speech, and violate their due process rights and right to equal protection. 

Hamodia reports on the lawsuit.

Physician Assistant Sues Hospital That Fired Her Over Treatment Of Transgender Patients

 A suit was filed on Tuesday in a Michigan federal district court by a woman who had worked as a physician assistant for 17 years, but was then fired for refusing, on religious grounds, to refer patients for gender transitioning drugs and procedures and to use pronouns that correspond to a patient's gender identity rather than their biological sex. In a claim denied by the fired employee, it was also claimed she altered template pronouns on medical records.  The complaint (full text) in Kloosterman v. Metropolitan Hospital, (WD MI, filed 10/11/2022), alleges in part:

9. By exhibiting open hostility toward Ms. Kloosterman’s religious beliefs, University of Michigan Health-West officials violated the Free Exercise Clause.... 

10. By accommodating secular preferences while refusing to grant a religious accommodation to Ms. Kloosterman, University of Michigan Health-West’s actions trigger and fail strict scrutiny under the Free Exercise Clause.... 

11. By seeking to compel Ms. Kloosterman to speak biology-obscuring pronouns that would violate her conscience and her medical judgment, as doing so could cause patients to miss potentially life-saving screenings, University of Michigan Health-West also violated the Free Speech Clause.... 

12. When it engaged in the aforementioned actions and fired Ms. Kloosterman, University of Michigan Health-West also violated the Fourteenth Amendment’s Equal Protection Clause, as well as Article I, §§ 2, 4, and 5 of the Michigan Constitution and the Elliott-Larsen Civil Rights Act of 1976....

First Liberty issued a press release announcing the filing of the lawsuit.

Certiorari Denied In Fetal Personhood Case

The U.S. Supreme Court today denied review in Doe v. McKee,  (Docket No. 22-201, certiorari denied 10/11/2022) (Order List). The certiorari petition  asked the Supreme Court to review a decision of the Rhode Island Supreme Court that held unborn fetuses do not have due process and equal protection rights under the U.S. Constitution and do not have standing to challenge Rhode Island's Reproductive Privacy Act which granted the right to abortions consistent with Roe v. Wade. CNN reports on the Court's action. [Thanks to Thomas Rutledge for the lead.]

Suit Challenges Kentucky Abortion Bans As Violating Jewish Religious Beliefs

Suit was filed last Thursday in a Kentucky state trial court by three Jewish women who contend that Kentucky's strict abortion bans violate their religious freedom rights. The complaint (full text) in Sobel v. Cameron, (KY Cir. Ct., filed 10/6/2022), alleges that Kentucky law might be read to make it a capital offense to discard excess embryos created in the process of in vitro fertilization. The complaint alleges in part:

35. Under Jewish law, a fetus does not become a human being or child until birth. Under no circumstances has Jewish law defined a human being or child as the moment that a human spermatozoon fuses with a human ovum.

36. The question of when life begins for a human being is a religious and philosophical question without universal beliefs across different religions....

39. Plaintiff’s religious beliefs demand that they have more children through IVF, yet the law forces Plaintiffs to spend exorbitant fees to keep their embryos frozen indefinitely or face potential felony charges. This dilemma forces Plaintiffs to abandon their sincere religious beliefs of having more children by limiting access to IVF and substantially burdens their right to freely exercise these sincerely held religious belief....

51. Kentucky's contemporary Abortion Law is focused on preservation of ova and blastocysts on the basis of a religious understanding of fetal personhood.....

The complaint alleges that Kentucky abortion laws are void for vagueness and unintelligibility; violate the Kentucky Religious Freedom Restoration Act; and violate the Kentucky Constitution by giving preference to sectarian Christianity and diminishing Plaintiffs' privileges, rights, and capacities on account of their Jewish faith and beliefs. Los Angeles Times reports on the lawsuit.

Recent Articles of Interest

 From SSRN:

• Hiram Sasser & Lea Patterson, The Religious Liberty Solution to Big Tech Censorship: How the Religious Freedom Restoration Act Limits Section 230 , (26 Tex. Rev. L. & Pol. 607 (2022)).
• Elizabeth Sepper & James David Nelson, Adolf Berle's Corporate Conscience, (45 Seattle University Law Review 97 (2021)).
• Björn Hoops & Karlijn van der Voort, Demolitions of Homes and Seizures of Land of the Bahá’í Minority in Iran: A (Constitutional) Property Law and International Law Perspective, (August 25, 2022).
• Gibson Ikanone, The Pathway to Religious Tolerance in Nigeria  (August 4, 2022).
• Roger Paul Alford, On Foxes and Hedgehogs: John Nagle’s Many Means to One Great End, (97 Notre Dame L. Rev. Reflection 87 (2022)).
• Nausica Palazzo, Comprehensive Security and LGBTQ Rights,  (Review of Faith and International Affairs, Vol. 20, 2022, Forthcoming).
• Peter J. Oliver, What Fundamental Rights, if Any, Should Companies Enjoy? A Comparative Perspective, (Revue européenne du droit, Issue 4 • Summer 2022).
• Pnina Lifshitz Aviram & Yehezkel Margalit, From Roe v. Wade to Dobbs v. Jackson – Between Women's Rights Discourse and Obligations Discourse, (Forthcoming, Health Matrix: Journal of Law-Medicine, Vol. 33, 2023).
• Imran A. Nyazee, Corporate Personality in Fiqh (Islamic Law),  October 4, 2022).

From SmartCILP:

• Jennifer Allison & Jonathan S. Hack, Yehi Shalom Be'Heylekh Shalvah Be'Armenotayikh': Beit Din Arbitration as a Model for Wholistic Dispute Resolution, 51 Cumberland Law Review 395-418 (2021).
• Yanay Israeli, The Requerimiento in the Old World: Making Demands and Keeping Records in the Legal Culture of Late Medieval Castile, 40 Law & History Review 37-62 (2022).
• Justin Marceau, Book Review. God's Law and Order: The Politics of Punishment in Evangelical America, by Aaron Griffith, [Abstract], 40 Law & History Review 167-170 (2022).

City's Harassment Of Private Prayer Services In Rabbi's Home Violated 1st Amendment

In Congregation 3401 Prairie Bais Yeshaya D'Kerestir, Inc. v. City of Miami, (SD FL, Oct. 6, 2022), a Florida federal district court refused to dismiss claims that city officials' harassment of a rabbi's home that hosted daily minyans (prayer services) for invited guests violated the 1st Amendment.  Private groups worshiping in a person's home are permitted in residential areas under the city's zoning code. The court said in part:

Defendant, wielding the City Code "like a club" ... issued multiple erroneous citations against Plaintiff for zoning code violations...; sent City personnel to the Property a staggering 126 times...; installed a surveillance camera that monitors only the Property ...; conducted at least one warrantless search...; and otherwise singled Plaintiffs out for harassment.... These events have had "a chilling effect on Plaintiff[s'] First Amendment Rights."... . Defendant's conduct, at least as alleged, could certainly "chill a person of ordinary firmness from exercising his or her First Amendment rights."  [Quote updated.]

Physicians Ask Arizona Court To Reconcile Competing Abortion Laws

In Arizona, a physician and the Arizona Medical Association have filed a declaratory judgment action in an Arizona trial court asking the court to clarify which of two competing laws on abortion is in effect in the state. The complaint (full text) in Isaacson v. State of Arizona, (AZ Super. Ct., filed 10/3/2022), explains:

3. Most recently, the Legislature passed, and Governor Ducey signed, a law permitting physicians to provide abortions through 15 weeks of pregnancy.... 

4. Since the Dobbs decision was issued on June 24, overturning Roe v. Wade, ... there has been significant confusion around the status of Arizona’s abortion laws, and specifically whether a near total criminal ban on abortion, A.R.S. § 13-3603 (the “Territorial Law”), that was enacted in 1901 but can be traced back to 1864, preempts dozens of existing abortion laws, including the 15-Week Law, and criminalizes otherwise legal, physician-provided abortion care. State officials with enforcement power have either refused to state which abortion laws take precedence or have taken inconsistent positions on the matter.

5. On July 13, 2022, the Arizona Attorney General filed a Rule 60(b) motion in the Pima County Superior Court seeking to lift an injunction of the Territorial Law that had been in place since 1973. On September 23, 2022, the Pima County Superior Court granted the Attorney General’s motion solely based on the decision in Dobbs overruling Roe v. Wade. The court declined to reconcile how the Territorial Law is to operate in harmony with Arizona’s more recent and much more robust statutory scheme governing physician-provided abortion care....

[Thanks to Courthouse News Service for the lead.]

Texas Federal District Court Invalidates HHS and EEOC Guidance On Application Of Bostock Decision

In State of Texas v. EEOC, (ND TX, Oct. 1, 2022), a Texas federal district court held that Guidance documents issued by the EEOC and by the Department of Health and Human Services are unlawful. It vacated and set aside the Guidance documents. At issue are the HHS and EEOC applications of the Supreme Court's Bostock decision. Bostock held that sex discrimination in Title VII includes discrimination because of sexual orientation or gender identity. The HHS Guidance interprets the Affordable Care Act, the Rehabilitation Act and the ADA to prohibit denial of gender-affirming care by healthcare providers. The Texas federal district court says that Bostock  only bars discrimination based on sexual orientation or gender identity status, and does not extend to discrimination based on conduct related to those statuses. The court concluded that the HHS Guidance is arbitrary and capricious because it misstates the law (in part by suggesting that gender dysphoria is a disability under the ADA) and does not detail what went into the Department's decision making. The court held that the EEOC violated procedural rules in issuing its Guidance. Texas Attorney General Ken Paxton issued a press release reacting to the decision. Texas Tribune reports on the decision.

Alternatives For Employees With Religious Exemptions From Vaccination Are Not Discriminatory

In Dollar v. Goleta Water District, (CD CA, Oct. 3, 2022), a California federal district court held that the COVID vaccination policy for employees of the Goleta Water District did not discriminate on the basis of religion against employees who obtained a religious exemption. Plaintiffs contended that the District's policy is discriminatory because it imposes special mask and testing requirements and requires authorization to enter certain buildings for plaintiffs because they have a religious exemption. The court said in part:

[P]laintiffs have not alleged that employees who receive exemptions on religious grounds are treated any differently from employees who receive exemptions on non-religious grounds. Instead, plaintiffs have only alleged that the policy treats them differently from other employees because of their vaccination status, not because of their religion.

School Counselor's Employment Agreement Sufficient To Invoke Ministerial Exception Doctrine

In Fitzgerald v. Roncalli High School, Inc., (SD IN Sept. 30, 2022), an Indiana federal district court invoked the ministerial exception doctrine to dismiss a suit brought by Michelle Fitzgerald, a Catholic high school guidance counselor who was fired after the school and the church that oversaw it learned that she was in a same-sex marriage. The court said in part:

Fitzgerald argues that Roncalli never entrusted her with religious teaching duties by raising numerous genuine factual disputes over what exactly she did at the school. She contends the record demonstrates that Roncalli entrusted her in description alone. She never engaged in religious teaching, nor did Roncalli expect her to....

[However,] Fitzgerald's employment agreement and Roncalli's description of Fitzgerald's expected duties are, alone, sufficient to resolve this case because those documents make clear that Roncalli entrusted Fitzgerald to teach the Catholic faith and carry out Roncalli's religious mission....

All this indicates Roncalli entrusted guidance counselors like Fitzgerald to convey the Church's message in addition to their secular duties. And under Seventh Circuit precedent, Fitzgerald's non-performance of these entrusted duties makes her "an underperforming minister" who may be removed pursuant to the ministerial exception.

Washington Examiner reports on the decision.

5th Circuit Hears Oral Arguments On Alabama COVID Limits On Religious Gatherings

 On Oct. 3, the 5th Circuit U.S. Court of Appeals heard oral arguments (audio of full arguments) in Spell v. Edwards. Former Alabama Supreme Court Chief Justice and U.S. Senate candidate Roy Moore argued for appellant. In the case, a Louisiana federal district court dismissed a challenge to a now expired COVID Order limiting the size of religious gatherings. The district court dismissed because the challenged restrictions had already expired, and defendants had qualified immunity in the claim for damages. (See prior posting.) AP reports on the oral arguments.

5th Circuit: Confiscation Of Prisoner's Religious Material Upheld

 In DeMarco v. Bynum, (5th Cir., Oct. 4, 2022), the U.S. 5th Circuit Court of Appeals upheld the dismissal of a suit brought by an inmate who contended that confiscation of his religious material violated his First Amendment rights. The court said in part:

DeMarco concedes that he did not store his religious materials as required by AD-03.72. And this court has previously indicated that TDCJ policies regarding storage of personal property do not infringe on a prisoner’s right to free exercise of religion....

Bynum’s confiscation of DeMarco’s religious materials was reasonably related to a legitimate penological objective.... There is also an alternative way for DeMarco to exercise his First Amendment rights, by accessing religious reading materials through the prison chaplain. The impact of accommodating DeMarco’s constitutional rights on other prisoners, guards, and prison resources could be great, given the management and safety concerns underlying the policy....

Moreover, even if Bynum had violated DeMarco’s constitutional rights, the district court correctly found that Bynum was entitled to qualified immunity because his actions were objectively reasonable.

Court Rejects Religious Defense To Illegal Possession Of Firearm Charges

In United States v. Harper, (ND IA, Sept. 30, 2022), an Iowa federal district court refused to dismiss indictments charging defendant with  possession of a firearm by a felon and unlawful drug user.  Defendant argued that he is a Muslim who practices Sharia Law which calls for armed self-defense, including the possession of a firearm. The court, accepting the Report and Recommendation [Lexis link] of a magistrate judge, said in part:

There is no less restrictive means to achieve the Government’s compelling interest in uniformly applying gun laws for public safety than prosecuting Harper.

Michigan Ban On Use Of State Funds For Private And Religious Schools Upheld

In Hile v. State of Michigan, (WD MI, Sept. 30, 2022), a Michigan federal district court dismissed free exercise and equal protection challenges to a provision in the Michigan Constitution that prohibits the use of state funds, tax benefits or vouchers to aid "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school" or student attendance at such schools. Plaintiffs contend that the provision reflects an anti-religious and anti-Catholic sentiment. Plaintiffs base their challenge on the unavailability of Michigan's Section 529 savings plan for them to use to send their children to private religious schools. The state, however, argues that its Plan is not available for any private high school tuition. Plaintiffs argue that the state is misinterpreting its own legislation.  The court said in part:

The court is satisfied that principles of comity preclude merits consideration of plaintiffs’ First Amendment Challenges because they would require this court to disregard the State’s own interpretation and consistent application of its own tax law, neither of which raises First Amendment concerns. Plaintiffs can take the issue up with Michigan tax authorities in the ordinary administration of the Michigan income tax collection process. But unless and until Michigan changes the interpretation and application of its own tax law, and replaces it with the version Plaintiffs say it should have, there is no First Amendment issue.

The court also rejected plaintiffs' equal protection challenge, saying that it is unwilling to expand the "political process" doctrine. Plaintiffs had argued that by placing the limits on use of state funds in the state Constitution, the state had burdened their ability to seek changes in the law. Bridge Michigan reports on the decision.

Pastor's Defamation Suit Dismissed On Ecclesiastical Abstention Grounds

In Weems v. Celebration Church of Jacksonville, Inc., (FL Cir. Ct., Sept. 28, 2022), a Florida state trial court dismissed on ecclesiastical abstention grounds a defamation lawsuit by the former pastor of Celebration Church. At issue is a report growing out of an internal investigation of the pastor commissioned by church trustees.

Plaintiffs’ current pleading invites this Court’s entanglement into Celebration Church’s internal matters....

In order to determine whether Celebration Church defamed Pastor Weems as currently alleged, this Court would need look to the time Pastor Weems was employed by the Church to see whether he did or did not partake in the actions as alleged by the Church and whether those actions were forbidden by the Church's bylaws and other internal policies.

Florida Times-Union reports on the decision.

COVID Vaccine Mandate Without Religious Exemption Is Upheld

In Does v. Hochul, (ED NY, Sept. 30, 2022), a New York federal district court dismissed challenges to New York's COVID vaccine mandate for healthcare workers brought by five employees with religious objections to the vaccine. In evaluating plaintiffs' free exercise claims, the court concluded that the regulation, which contains no religious exemption, is subject only to rational basis review, saying in part:

The plaintiffs argue that the mandate is not neutral because it includes a medical exemption, and thus “treats religious exemptions less favorably than some nonreligious exemptions;” in the plaintiffs’ words, this “double standard is not a neutral standard.”... 

Section 2.61 is neutral on its face. It does not refer to religion at all, and applies to “all persons employed or affiliated with a covered entity” who could “potentially expose other covered personnel, patients or residents to” COVID-19; the only exception is for employees with medical conditions that qualify for a medical exemption...

The rule at issue in this case involves no “singling out” of religious employees. Indeed, Section 2.61 applies equally to all employees who can be vaccinated safely, regardless of their religious beliefs or practices, whether they have political objections to the vaccine, or question their efficacy or safety, or any of the many other reasons that people choose not to get vaccinated....

The court also rejected plaintiffs' Title VII challenge, saying in part:

The sole “accommodation” the plaintiffs seek—a religious exemption from the vaccine requirement— would impose an undue hardship on the Private Defendants because it would require them to violate state law.

Village Residents Lack Standing In Establishment Clause Challenge To Zoning Law

In Citizens United to Protect Our Neighborhoods v. Village of Chestnut Ridge, New York, (SD NY, Sept. 30, 2022), a New York federal district court dismissed for lack of standing a suit by a civic organization and Village residents alleging that the Village's new zoning code violated the Establishment Clause by favoring one religious group, Orthodox Jews.  The Code created new categories of religious uses and houses of worship, including "residential gathering places" so that single-family homes could be opened for religious activities, subject to additional parking requirements. This facilitated small-scale worship services often used by Orthodox Jews who for religious reasons cannot drive on the Sabbath and holidays. The court said in part:

Plaintiffs claim the new zoning amendments “target religious uses with special favorable treatment over secular uses.” (Id.) However, Plaintiffs have not identified any injury, nonetheless a particularized and concrete one. The law is clear that generalized grievance is insufficient to establish standing....

Individual Plaintiffs claim they have direct exposure standing because the New Zoning Law was rushed into law and gives preferential treatment to OJC and religious uses over secular uses, such that “the construction of an untold number of houses of worship” will serve as “constant reminders of the law and its endorsement of religion.” ... This is an insufficient basis ... for finding direct exposure standing....

11th Circuit: City Council Invocation Is Government Speech

In Gundy v. City of Jacksonville Florida, (11th Cir., Sept. 30, 2022), the U.S. 11th Circuit Court of appeals held that an invocation opening a city council meeting delivered by Reginald Gundy, a pastor invited by a member of Council, is government speech.  At issue is a suit by the pastor whose microphone was cut off in the middle of his invocation by the city council president who concluded that the invocation had crossed over into a political attack. The court concluded that the pastor's suit should be dismissed, saying in part:

Mr. Gundy's appeal centers on the fact that he brought counts against Mr. Bowman and the City based on alleged violations of his free speech and free exercise rights under the United States Constitution and the Florida Constitution.

As a threshold and dispositive matter, ... we hold that the district court erred in deeming the invocation private speech in a nonpublic forum instead of government speech. And since Mr. Gundy did not allege a violation of his rights under the Establishment Clause, which is the proper constitutional vehicle to attack the government speech at issue here, his appeal must fail.

Certiorari Denied In Scientology Arbitration Case and Falun Gong Leafleting Case

Today's 48-page Order List from the U.S. Supreme Court on its opening day of the term includes the denial of review in two cases of interest:

Church of Scientology v. Bixler (Docket No. 22-60, cert. denied 10/3/2022): In the case, a California state appellate court held that former Church of Scientology members were not bound by their agreement to submit all disputes with the Church to the Church's Religious Arbitration system when the dispute involves conduct that occurred after plaintiffs left the Church. (See prior posting.)

Zhang Jingrong v. Chinese Anti-Cult World Alliance, Inc. (Docket No. 21-1429, cert. denied 10/3/2022) and Chinese Anti-Cult World Alliance, Inc. v. Zhang Jinrong (Docket No. 21-1556, cert. denied 10/3/2022)- In the case the 2nd Circuit Court of Appeals held that five tables on the sidewalk in Flushing, Queens, New York where Falun Gong adherents passed out flyers and displayed posters were not a "place of religious worship" under the Freedom of Access To Clinics Entrances Act that prohibits intentionally injuring, intimidating, or interfering with anyone who is exercising 1st Amendment religious freedom rights “at a place of religious worship.” In addition, the cross-petition for review raised the issue of the validity of the statute under the commerce clause. (See prior posting.)

Special Permit Requirement Only For Houses Of Worship Violates 1st Amendment

In Omar Islamic Center Inc. v. City of Meriden, (D CT, Sept. 30, 2022), a Connecticut federal district court held that a zoning regulation that required places of worship to obtain a special permit to operate in areas zoned M-4 (Planned Industrial District) violates plaintiffs' 1st Amendment free exercise rights. Plaintiff sought to use a vacant commercial building as a mosque. The court said in part:

Regulations allowed hotels, motels, and convention centers, as well as numerous shops and stores including bakeries, restaurants, and theaters, to operate as of right in the M-4 district, without needing to apply for a special permit.... Places of worship, however, were required to obtain a special permit before opening their doors. It is clear to the Court that, under the test set forth by the Supreme Court in Tandon, at least some comparable secular activities were therefore treated more favorably than religious activities under the Regulations. Thus, the law is not neutral and generally applicable under free exercise principles, and it must be examined with strict scrutiny.

Defendants have not defended the law under either a rational basis or strict scrutiny standard. In fact, they have proffered no rationale underlying the law whatsoever.

The court also found that the regulation violated plaintiff's equal protection rights. The court refused to pass on plaintiff's RLUIPA claims because it was unclear whether or not plaintiff had an actual property interest in the building.

Qualified Immunity Protects Defendants Who Denied Religious Exemptions From COVID Vaccine Mandate

In Jane Does 1-11 v. Board of Regents of the University of Colorado, (D CO, Sept. 29, 2022), a Colorado federal district court dismissed a number of claims by current and former students and employees of the University of Colorado who were denied religious exemptions from the University's COVID vaccine mandate. Some of the claims were dismissed on mootness and sovereign immunity grounds. Other claims were dismissed on qualified immunity grounds, with the court saying in part:

Given the unprecedented nature and global scope of the Covid-19 pandemic as well as its devastating impacts, the Court finds the allegations in the Complaint do not establish that these Defendants acted unreasonably in light of existing precedent and in the specific context of this case. Therefore, at a minimum, they did not violate Plaintiffs’ clearly established rights.

Supreme Court Opens Its October 2022 Term Today

The Supreme Court opens its new term this morning.  Washington Times reports that the traditional Red Mass that precedes the Court's new term was held yesterday at Washington's Cathedral of St. Matthew the Apostle.  Chief Justice Roberts, Justice Barret and retired Justice Breyer attended. Among the cases already on the Court's docket for this term is 303 Creative LLC v. Elenis (SCOTUS blog case page). The date for its oral argument has not yet been set. In the case, the U.S. 10th Circuit Court of Appeals upheld the application of Colorado's Anti-Discrimination Act to a wedding website design company whose owner for religious reasons refuses to create websites that celebrate same-sex marriages. (See prior posting.) The Court granted review only on the free speech issue in the case. The Court will continue to broadcast live audio feed of oral arguments at this link. We can also expect the traditional First Monday long Order List to be released this morning.

Recent Articles of Interest

From SSRN:

• David Schorr, History, Theory, and Jewish Tort Law: Sinai and Shmueli's Maimonides and Contemporary Tort Theory, (Jewish Law Annual, Forthcoming).
• Nicholas McBride, The Nature of Evil, (September 10, 2022).
• Joshua Neoh, The Allah Case: What is the Name of God?, (Law and Religion in the Commonwealth (Hart, 2022)).
• Robert W. McGee, Serkan Benk & Bahadir Yuzbasi, Religious Attitudes Toward Bribery: A Comparative Study (Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, Chapter 7, Chapter 8, by McGee & Benk,  Chapter 38, Chapter 39, (in Robert W. McGee & Serkan Benk (Eds.), The Ethics of Bribery: Theoretical and Empirical Studies. Switzerland: Springer, Forthcoming).
• Wendy Bach & Nicolas P. Terry, HIPAA v. Dobbs, (September 15, 2022).
• Joseph Cyriac & Ashim Alex, An Outlook into Cultural Hypocrisy and Caste Transformation in India, (August 31, 2022).
• Mayowa Aroyewun, Challenges and Prospects of Cryptocurrency in Islamic Finance in Nigeria, (October 8, 2021).
• Nicholas McBride, The Nature of Evil, (September 10, 2022).
• Miranda Webster & Rosemary Teele Langford, An Analysis of the ACNC's Approach to Compliance and Enforcement, (September 13, 2022).

From SmartCILP:

• Russell K. Robinson, What Christianity Loses When Conservative Christians Win at the Supreme Court, [Abstract], 2021 Supreme Court Review 185-224 (2021).
• Lee Epstein & Eric A. Posner, The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait, 2021 Sup. Ct. Rev. 315-348 (2021).

6th Circuit Affirms That County Clerk Kim Davis Had No Qualified Immunity Defense

In Ermold v. Davis, (6th Cir., Sept. 29, 2022), the U.S. 6th Circuit Court of Appeals affirmed a Kentucky federal district court decision that Rowan County Clerk Kim Davis does not have qualified immunity in a suit against her for stopping the issuance of all marriage licenses to avoid issuing licenses to same-sex couples. The court said in part:

[P]laintiffs have not only “alleged” but also now “shown” that Davis violated their constitutional right to marry.... And, as we held three years ago, that right was “clearly established in Obergefell.”

The court held that insofar as Davis has raised a free exercise defense under the First Amendment, that issue should be resolved when the case goes to trial and not at the current motion-to-dismiss stage. [Thanks to Thomas Rutledge for the lead.]