EEOC Sues Over Refusal to Accommodate Christian Employee's Belief Without Back-Up from Religious Leader

The EEOC announced yesterday that it has filed a Title VII suit against Triple Canopy, Inc., a Reston, Virginia-based company that provides protective services to federal agencies. The EEOC, alleging failure to reasonably accommodate an employee's religious beliefs, said in part:

[D]espite the employee’s repeated explanations that he did not belong to a formal religious denomination but nonetheless held a Christian belief that men must wear beards, Triple Canopy denied his request for a religious accommodation because the employee was unable to provide additional substantiation of his beliefs or a supporting statement from a certified or documented religious leader. Additionally, Triple Canopy subjected him to intolerable work conditions that resulted in his discharge.

British Court: Humanist Eligible to Sit on Advisory Council for Religious Education

In R (on the Application of Bowen) v. Kent County Council, (EWHC (Admin), May 26, 2023), a British High Court justice rejected a ruling of the Kent Conty Council regarding who is eligible for appointment to an advisory body on religious education in the county's schools. The court explained:

Mr Bowen sought to be appointed to join Group A of the Standing Advisory Council for Religious Education (‘SACRE’) of Kent County Council (‘KCC’). Pursuant to section 390(4)(a) of the Education Act 1996 (‘the 1996 Act’) ..., Group A is required to be ‘a group of persons to represent such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area.’ KCC refused to appoint Mr Bowen because, as a humanist, Mr Bowen does not represent ‘a religion or a denomination of a religion’....

 ... [T]he ability to be a representative of a particular relevant belief on a SACRE is (at the very least) more than tenuously connected with that core value, so as to bring the alleged discrimination through the prevention of membership of SACRE within the ambit of article 9 [of the European Convention on Human Rights]..

... [A] religious education curriculum must, in order to be compliant with the HRA [Human Rights Act] 1998, cover more than religious faith teaching. The content of religious education teaching must include, at least to some degree, the teaching of non-religious beliefs (such as humanism).... 

The court concluded in part:

Analysed properly, when looking at membership of a group the purpose of which is to advise upon the content of a religious education syllabus, it is obvious that all people who are holders of belief systems appropriate to be included within that syllabus are in an analogous position. It is in my view clearly discriminatory to exclude someone from SACRE Group A solely by reference to the fact that their belief, whilst appropriate to be included within the agreed syllabus for religious education, is a non-religious, rather than a religious, belief.

Law & Religion UK has a lengthier analysis of the decision.

Uganda Enacts Harsh Ban on Homosexuality

Last Friday, Ugandan President Yoweri Museveni signed the Anti-Homosexuality Act 2023 (full text). The new law imposes the penalty of life imprisonment for anyone "who commits the offense of homosexuality." A person who commits the offense of "aggravated homosexuality" is liable for the death penalty. "Aggravated homosexuality" is defined, among other things, as homosexual relations with a child, a person with a disability, an elderly or unconscious person, a person who is mentally ill, or a homosexual act committed by the victim's parent or guardian, the offender is a serial offender, or the offense is committed by duress. Same-sex marriages are prohibited, as is promotion of homosexuality. Individuals have an obligation to report a reasonable suspicion that a person has or intends to engage in homosexual relations. A convicted person may be ordered to undergo "rehabilitation."

The Ugandan Parliament issued a press release announcing the President's signing of the Bill into law, with remarks by the bill's sponsor, Asuman Basalirwa. CNN reports on the passage of the law. On Monday, President Biden issued a Statement (full text) calling Uganda's new law "a tragic violation of universal human rights." U.S. Secretary of State Anthony Blinken also issued a Statement (full text) condemning Uganda's new law and saying in part:

[T]he Department of State will develop mechanisms to support the rights of LGBTQI+ individuals in Uganda and to promote accountability for Ugandan officials and other individuals responsible for, or complicit in, abusing their human rights.

Bloomberg News reports that a suit challenging the new law has already been filed in Uganda's Constitutional Court.

Sex Abuse Claims Arising Before Diocese Was Formed Are Disallowed in Bankruptcy Case

In In re Roman Catholic Diocese of Rockville Centre, New York, (SD NY Bkrptcy., May 26, 2023), a New York federal bankruptcy court disallowed nine sex-abuse claims filed in the bankruptcy reorganization of the Rockville Centre Catholic Diocese because they occurred before the Rockville Centre Diocese was formed and in territory which, at the time of the alleged abuse, belonged to the Diocese of Brooklyn. The court allowed claims by four other individuals to be filed in amended form because while they occurred before the Rockville Centre Diocese was incorporated in New York, they occurred after the Vatican formed the Diocese. The court said in part:

First, the Court finds that the First Amendment, and its intersection with canon law, is not a bar to the Court's ruling on this Objection. Second, the Court finds that the Objection must be sustained for Pre-Establishment Claims because the Diocese i) did not assume the prior liabilities and ii) the de facto merger exception does not apply. Finally, the Court finds that fairness requires allowing the Post-Establishment Claimants an opportunity to amend their claims.

Ministerial Exception and RFRA Defenses Rejected in Suit Over Firing of Bible Translation Company IT Employee

In Ratlliff v. Wycliffe Associates, Inc., (MD FL, May 26, 2023), a Florida federal district court refused to dismiss a Title VII employment discrimination suit brought against a Bible translation company by a software developer who was fired after the company learned that he had entered a same-sex marriage. The court rejected defendant's reliance on RFRA, concluding that "s RFRA does not apply to lawsuits in which the government is not a party."  It rejected defendant's "ministerial exception" defense, saying in part:

... Plaintiff does not qualify as a minister.

... Plaintiff was seemingly hired for his technological aptitude.... Accordingly, Plaintiff’s role was to employ his knowledge to develop software, not to act as a source of religious conveyance.... While the software’s purpose may have been to translate the Bible, Plaintiff himself was not doing so.... Further, Plaintiff’s direct interactions involved other software and database developers—not the individuals seeking out Defendant’s mission....

... [A]t bottom here, Plaintiff is a software developer, with no idiosyncratic religious title, background, education, or function.....

Memorial Day Proclamation Issued by President Biden

Congress has designated the last Monday in May as Memorial Day. President Biden last week issued A Proclamation on Prayer For Peace, Memorial Day, 2023 (full text). It reads in part:

On Memorial Day, we honor America’s beloved daughters and sons who gave their last full measure of devotion to this Nation....

In honor and recognition of all of our fallen service members, the Congress, by a joint resolution approved May 11, 1950, as amended (36 U.S.C. 116), has requested that the President issue a proclamation calling on the people of the United States to observe each Memorial Day as a day of prayer for permanent peace and designating a period on that day when the people of the United States might unite in prayer and reflection. The Congress, by Public Law 106-579, has also designated 3:00 p.m. local time on that day as a time for all Americans to observe, in their own way, the National Moment of Remembrance.

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, do hereby proclaim Memorial Day, May 29, 2023, as a day of prayer for permanent peace, and I designate the hour beginning in each locality at 11:00 a.m. of that day as a time when people might unite in prayer and reflection.

1st Circuit: Free Exercise Claim by Maine Healthcare Workers Over COVID Mandate May Move Forward

 In Lowe v. Mills, (1st Cir., May 25, 2023), the U.S. 1st Circuit Court of Appeals reversed in part a Maine district court's dismissal of a suit by seven health care facility workers whose request for religious exemptions from the state's COVID vaccine mandate was rejected.  The court said in part:

The claims against the State assert, among other things, that the Mandate, by allowing medical but not religious exemptions, violates the Free Exercise and Equal Protection Clauses of the U.S. Constitution....

We agree with the district court that the complaint's factual allegations establish that violating the Mandate in order to provide the plaintiffs' requested accommodation would have caused undue hardship for the Providers, and so affirm the dismissal of the Title VII claims. But we conclude that the plaintiffs' complaint states claims for relief under the Free Exercise and Equal Protection Clauses, as it is plausible, based on the plaintiffs' allegations and in the absence of further factual development, that the Mandate treats comparable secular and religious activity dissimilarly without adequate justification.

Recent Articles of Interest

From SSRN:

• Vipasna Nangal, Bill 21 and Canadian Jurisprudence - The Divergence of the Religious Neutrality Principle, (Canadian Law Review Research Paper No. 2 (2022).
• Lucia Ann Silecchia, COVID-19, Visitation and Spiritual Care: Responding to the Silent Suffering of the Isolated in Times of Crisis, (Baylor Law Review, Vol. 74, No. 3, 2022).
• Sanya Garg, Constructing the Other: Ethnonationalism and Its Trends, (April 25, 2023).
• Ahmer Bilal Soofi, Qur’anic Covenants: Is the Covenant a Basic Feature of the Qur’an?, (May 9, 2023).
• Lili Levi, Politicizing Antisemitism Amid Today's Educational Culture Wars, (Lewis & Clark Law Review, Forthcoming).
• Rachel Bayefsky, Tangibility and Tainted Reliance in Dobbs, (136 Harv. L. Rev. F. 384 (2023)).
• David L. Sloss, Guns, Abortion, and Courts, (Santa Clara Law Review, Vol. 56, (Forthcoming)).
• Kanak Kanti Karmakar, Significance as to Codification of Muslim Personal Law in Bangladesh, (March 28, 2023).

New Iowa Law Addresses Sexual Materials In School Curriculum; Parental Rights

Last Friday, Iowa Governor Kim Reynolds signed SF 496 (full text) which prohibits public schools from providing "any program, curriculum, test, survey, questionnaire, promotion, or instruction relating to gender identity or sexual orientation to students in kindergarten through grade six. It adds the requirement that various programs and educational materials be "age-appropriate", which is defined in the law as:

topics, messages and teaching methods suitable to particular ages or age groups of children and adolescents, based on developing cognitive, emotional, and behavioral capacity typical for the age or age group. “Age-appropriate” does not include any material with descriptions or visual depictions of a sex act....

School libraries can only contain "age-appropriate" material, except (pursuant to a pre-existing section of Iowa law (Sec. 280.6)):

religious books such as the Bible, the Torah, and the Koran shall not be excluded from any public school or institution in the state, nor shall any child be required to read such religious books contrary to the wishes of the child’s parent or guardian.

The new law amends the statutory health education requirement to eliminate the required teaching about "HPV and the availability of a vaccine to prevent HPV, and acquired immune deficiency syndrome."

The law prohibits schools from giving parents false or misleading information about a student's gender transition intent and requires school districts to inform parents of their student's request for gender-affirming care from a licensed practitioner employed by the school district.

The new law also provides:

[A] parent or guardian bears the ultimate responsibility, and has the fundamental, constitutionally protected right, to make decisions affecting the parent’s or guardian’s minor child, including decisions related to the minor child’s medical care, moral upbringing, religious upbringing, residence, education, and extracurricular activities. Any and all restrictions of this right shall be subject to strict scrutiny.

The law also requires school districts to publish policies relating to parents' requests for removal of materials from school libraries or classrooms and policies for requesting a student not be provided with certain materials.

CNN reports on the new law.

Connecticut Legislature Absolves Those Tried For Witchcraft In 17th Century

On Thursday, the Connecticut legislature gave final passage to House Joint Resolution 34 (full text), formally absolving by name some 34 individuals who were indicted or convicted of witchcraft and familiarities with the devil in the 17th century by courts in the early British colonies of Connecticut and New Haven. The Resolution concludes:

[T]he State of Connecticut apologizes to the descendants of all those who were indicted for the crimes of witchcraft and familiarities with the devil, convicted and executed and for the harm done to the accused persons' posterity to the present day, and acknowledges the trauma and shame that wrongfully continued to affect the families of the accused.

CtMirror reports on the passage of the Resolution. [Thanks to Thomas Rutledge for the lead.]

New Florida Law Allows Courts to Take Jurisdiction Over Minors Undergoing Gender Transition Treatment

On May 17, Florida Governor Ron DeSantis signed Senate Bill 254 (full text) which prohibits sex reassignment prescriptions or procedures for individuals under 18 years of age. It also allows Florida courts to take jurisdiction over a child who is present in the state when the child "has been subjected to or is threatened with being subjected to sex-reassignment prescriptions or procedures," and allows a parent to seek emergency custody of a child that is being subjected to sex reassignment prescriptions or surgery.  The new law also imposes informed consent procedures for sex-reassignment prescriptions or procedures for adults. Politifact discusses the reach of the new law. (Update: It is part of a 5-bill package (see prior posting.)

Texas Legislature Approves Chaplains in Public Schools

 The Texas legislature today gave final passage to SB763 (full text) which allows public schools to employ or accept as volunteers chaplains to provide support for students.  Chaplains need not be certified as teachers.  The only requirements are that they be subject to a criminal history review and that they have not been convicted or placed on deferred adjudication community supervision for an offense for which sex-offender registration is required. Texas Tribune reports on the passage of the bill, saying in part:

The bill was delayed last week after Texas House members sought an amendment that would have required chaplains to have similar accreditation as chaplains who work in prisons or the U.S. military. That amendment was defeated during negotiations between both chambers Friday.

Earlier this month, House Democrats also offered amendments to bar proselytizing or attempts to convert students from one religion to another; to require chaplains to receive consent from the parents of school children; and to make schools provide chaplains from any faith or denomination requested by students. All of those amendments failed.

[Thanks to Thomas Rutledge for the lead.]

White House Releases National Strategy to Counter Antisemitism

The White House today released The U.S. National Strategy to Counter Antisemitism (full text). The 60-page document sets out a strategy with four pillars:

• Pillar 1: Increase Awareness and Understanding of Antisemitism, Including its Threat to America, and Broaden Appreciation of Jewish American Heritage.
• Pillar 2: Improve Safety and Security for Jewish Communities.
• Pillar 3: Reverse the Normalization of Antisemitism and Counter Antisemitic Discrimination.
• Pillar 4: Build Cross-Community Solidarity and Collective Action to Counter Hate.

It lists over 100 actions the Administration plans to take.  Introducing the details of plans to increase awareness and understanding of antisemitism, the document says in part:

Antisemitism is a stereotypical and negative perception of Jews, which may be expressed as hatred of Jews. It is prejudice, bias, hostility, discrimination, or violence against Jews for being Jews or Jewish institutions or property for being Jewish or perceived as Jewish. Antisemitism can manifest as a form of racial, religious, national origin, and/or ethnic discrimination, bias, or hatred; or, a combination thereof. However, antisemitism is not simply a form of prejudice or hate. It is also a pernicious conspiracy theory that often features myths about Jewish power and control.

There are several definitions of antisemitism, which serve as valuable tools to raise awareness and increase understanding of antisemitism. The most prominent is the non-legally binding “working definition” of antisemitism adopted in 2016 by the 31-member states of the International Holocaust Remembrance Alliance (IHRA), which the United States has embraced. In addition, the Administration welcomes and appreciates the Nexus Document and notes other such efforts.

The White House also released a Fact Sheet summarizing the National Strategy. Jewish Insider reports on the National Strategy.

Court OK's Police Department's Rejection of Religious-Themed Flags and Uniform Patches

In Sangervasi v. City of San Jose, (ND CA, May 22, 2023), a California federal district court dismissed a suit by a police officer William Sangervasi who challenged the police department's refusal to adopt his proposed patch and flag designs. The court explained:

In August 2019, as part of the region’s celebration of Silicon Valley Pride Month, Chief Garcia raised a rainbow-themed LGBTQ pride flag in place of the City of San Jose flag on the flagpole outside SJPD headquarters....

On July 28, 2020, Chief Garcia issued official SJPD Memorandum #2020-33, introducing a rainbow-themed LGBTQ pride shoulder patch for the SJPD uniform.... 

On November 11, 2020, Mr. Sangervasi sent a memorandum to Chief Garcia titled, “Desecration of The Uniform by Memorandum #2020-33.” ... Mr. Sangervasi’s memorandum “detailed his intent to forever protect and defend the sacrosanct neutral and impartial visual appearance of The American Uniform” by submitting various “free speech patch and flag designs” that he wanted the SJPD to adopt.... Mr. Sangervasi proposed patch designs featuring phrases and images such as “natural hetero-sexual pride,” what appears to be Christian rosary beads encircling the traditional SJPD crest, and an image of the Christian archangel Saint Michael.... He proposed flag designs featuring phrases and images including, for example, “father + mother = girls + boys,” “white lives matter,” and the confederate battle flag.... Two days later... Mr. Sangervasi was placed on indefinite administrative leave.... On December 11, 2020, Mr. Sangervasi received a letter from Acting Chief Dave Knopf denying Mr. Sangervasi’s demand that the SJPD adopt Mr. Sangervasi’s patch and flag designs.

The court, rejecting plaintiff's free exercise, free speech and equal protection claims, held:

Mr. Sangervasi does not allege any burden on his sincere religious practice pursuant to a policy that is not neutral or generally applicable. Rather, he complains that, if the SJPD authorizes specialty uniform patches to be worn on a voluntary basis, it must allow him to wear religion-themed patches of his own design.... These allegations fail to state a claim for relief because the City has not created a public forum in which Mr. Sangervasi has a right to express any views, let alone those views that may be grounded in religious practice or belief. In the absence of such a forum and as discussed above, the SJPD’s patch designs amount to government speech and do not burden Mr. Sangervasi’s religious practice.

Suit Challenges High School-College Dual Enrollment Plan Exclusion of Some Religious Colleges

Suit was filed yesterday in a Minnesota federal district court challenging a Minnesota statute that excludes certain religious colleges from participating in the state's Postsecondary Enrollment Options (PSEO) program. The program allows students to earn college credits free of charge at public or private colleges while still in high school. An amendment to the PSEO law which will take effect on July 1 bars colleges from participating in the program if the school requires a faith statement from high schoolers or if any part of the admission decision is based on a high schooler's religious beliefs or affiliations.  The complaint (full text) in Loe v. Walz, (D MN, filed 5/24/2023), alleges that the new law variously violates the free exercise, free speech, Establishment Clause and equal protection rights of religious families and religious colleges. The complaint alleges in part:

172. The amendment requires Plaintiffs Crown [College] and [University of] Northwestern to choose between maintaining their religious identities and receiving an otherwise available benefit for which they have been eligible for decades. 

173. It likewise forces the Loe family and the Erickson family to either forgo receipt of an otherwise-available benefit or forgo their right to seek an education in accordance with their religious beliefs.

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

Parents Charge That Elementary School Pride Stories Violate Their Free Exercise Rights

Muslim and Christian parents filed suit yesterday in a Maryland federal district court challenging the Montgomery County School Board's policy that introduces their pre-K and elementary school students to various "Pride Storybooks." The parents are seeking the right to opt their children out of family life and human sexuality instruction, including reading of the Storybooks. The complaint (full text) in Mahmoud v. McKnight, (D MD, 5/24/2023), alleges that requiring their children to listen to the Storybooks violates the parents free exercise and free speech rights, as well as their right to control their children's education.  The complaint alleges in part:

222. The School Board’s policy to mandate the Pride Storybooks to discourage a biological understanding of human sexuality is not neutral toward religion, in part because it assumes that traditional religious views regarding family life and sexuality as supported by sound science and common sense are hurtful, hateful, or bigoted.

223. This burdens the Parents’ freedom to form their children on a matter of core religious exercise and parenting: how to understand who they are.

224. It also burdens the Student Plaintiff’s freedom to receive an education in an environment free from religious discrimination....

254. Far from guaranteeing a fair and objective discussion of religious perspectives, the School Board’s Pride Storybooks and corresponding “resource guide” preclude religious viewpoints on the topics of sexual orientation and gender identity—because of their viewpoint. That is unconstitutional.

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

Deputy Has Qualified Immunity In Suit Claiming His Failure to Intervene in Establishment Clause Violation

 In White v. Goforth, (6th Cir., May 18, 2023), the U.S. 6th Circuit Court of Appeals held that Sheriff's Deputy Jacob Goforth had qualified immunity in a suit against him for failing to intervene in conduct by Daniel Wilkey, an on-duty officer who is also a preacher. Wilkey called Goforth asking him to witness a baptism at a nearby lake.  The court explained:

Unbeknownst to Goforth, Wilkey had stopped Shandle Riley earlier that evening and found her in possession of marijuana. Wilkey told Riley that if she agreed to let him baptize her, he would issue her a citation and not take her to jail. She agreed and followed Wilkey in her car to a nearby lake. When Goforth arrived, he saw what appeared to be a consensual, if improper, situation.... Critically, however, Goforth never learned of Wilkey’s improper quid pro quo.....

Reversing the Tennessee district court's denial of qualified immunity, the appeals court said in part:

Riley asserts that Wilkey’s coerced baptism of her violated the Establishment Clause. That may well be so. Coercion “was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.”... Threatening jail time for refusing Christian baptism seems an easy fit for this category. But even if Wilkey violated Riley’s constitutional rights, Wilkey is not before us; only Goforth is. There is nothing in the record indicating that Goforth knew of Wilkey’s quid pro quo....

The district court thought that, even absent coercion, it was clearly established that an officer in Goforth’s position would be “liable for failing to intervene if a reasonable observer” would have perceived a governmental endorsement of religion, as defined by the Lemon test and its progeny....We cannot agree. First, Kennedy clarified that the Supreme Court had “long ago abandoned Lemon and its endorsement test offshoot.” ... If that is so, then Goforth could not have had a clearly established duty to stop Wilkey from violating it....

Moreover, we can find no case that had ever found an officer liable where his fault was not his own endorsement of religion, but his failure to intervene in someone else’s.

Court Defines Clergy-Penitent Privilege Under Montana Law

Caekaert v. Watchtower Bible and Tract Society of New York, (D MT, May 22, 2023), involved a motion by plaintiff to compel production of documents that the Jehovah's Witnesses parent body withheld in discovery claiming clergy-penitent privilege. At issue were reports from congregations to the parent body of known child molesters currently or formerly in appointed positions in the congregation. In defining the scope of the clergy-penitent privilege, the Montana federal district court said in part:

The Court recognizes the deference it must give religious groups in the organization of their internal affairs. However ... such deference does not mean a religious organization determines for the Court what is privileged merely by contending that it is confidential under the religious body's doctrine...

At the same time, the Court recognizes that the privilege is not so narrow so as to exclude non-penitential statements made in the course of the church's disciplinary process....

Illinois AG Releases Report on Catholic Clergy Child Sex Abuse

Yesterday, Illinois Attorney General Kwame Raoul released its 696-page Report on Catholic Clergy Child Sex Abuse in Illinois (full text). The Report stems from an investigation thar began in 2018. The Attorney General's message that begins the report says in part:

As a direct result of this investigation and my team’s persistence, the dioceses have improved their policies relating to their investigations of child sex abuse allegations and the public disclosure of substantiated child sex abusers. Before this investigation, the Catholic dioceses of Illinois publicly listed only 103 substantiated child sex abusers. By comparison, this report reveals names and detailed information of 451Catholic clerics and religious brothers who abused at least 1,997 children across all of the dioceses in Illinois.

The Report concludes with a series of recommendations. It points out that in 2014, Illinois eliminated the statute of limitations for civil claims of child sex abuse. However, that law does not permit filling of claims for which the statute of limitations had run before 2014, and the Illinois Supreme Court has held that creating a look-back window for such claims would require an amendment to the state constitution. The Report suggests that Dioceses establish independent mediation and compensation programs that would cover these claims. AP discusses reactions to the AG's Report.

Judge's Religious Comments Did Not Violate Defendant's Rights

 In State of Ohio v. Loftis, (OH App., May 19, 2023), an Ohio state appellate court held that a judge's references to religion during a sentencing hearing for defendant who was convicted of sexual battery did not violate defendant's due process rights or the Establishment Clause. During the sentencing hearing, the trial court judge said in part:

... [T]he diminished influence or role of organized churches and faith or religion in the world, that whole diminishing concept isn’t boding well for the community. No surprise maybe if you read Revelation, if you do Biblical prophecy, you are all going to end up in a big dumpster fire at some point in time, so the trend is exactly what we are seeing....

The statutes, the law, every social moray[,] every religious system at least in terms of the New Testament years have said there is a duty to protect children. Some societies sacrifice children, but that’s thousands of years ago. It’s the other way around. Is that lost? Yeah, totally it’s lost. That doesn’t mean the expectation is not there....

The appellate court said in part:

 ... [T]he trial judge’s comments did not suggest that he was referencing his own religious beliefs as a guideline for his sentencing decision. Instead, his comments were limited to espousing his belief that the lack of a religious foundation leads to improper behavior. 

More importantly, we conclude that the trial court complied with the applicable provisions of R.C. Chapter 2929. The record affirmatively demonstrates that the trial court relied upon the proper statutory factors....

AAUP Issues Report on Hamline University Islamic Art Controversy

 The Association of American University Professors Committee A on Academic Freedom and Tenure has released its report (full text) on the actions of Hamline University in refusing to renew the contract of a part-time art history professor who created a controversy when she presented two historical images of the Prophet Muhammad in an online class session. (See prior posting.) The AAUP Report concluded in part:

Professor Erika López Prater’s decision to display historical images of the Prophet Muhammad in a World Art class was not only justifiable and appropriate on both scholarly and pedagogical grounds; it was also protected by academic freedom. The Hamline administration was wrong to characterize this decision as “undeniably inconsiderate, disrespectful and Islamophobic.” Similarly, the university’s contention that care for students must “supersede” academic freedom reflected an inaccurate and harmful understanding of the nature of academic freedom in the classroom. The university has since disavowed both claims.

The Star Beacon discusses the report and the University's response to it.

Oklahoma Passes School Choice Tax Credit Law

Last Friday the Oklahoma legislature completed passage and sent to the governor for his signature HB1934, the Oklahoma Parental Choice Tax Credit Act (full text). The bill creates a tax credit against Oklahoma state income tax for tuition and fees paid for private school education. The credit varies from $5000 to $7500 depending on the household income.  It also provides a $1000 tax credit for home school expenses. The bill imposes annual caps on the amount of credits the state will recognize, which increases from $150 million to $250 million in 2026. Governor Kevin Stitt issued a press release celebrating the legislature's passage of the law.

Recent Articles of Interest

From SSRN:

• Samuel L. Bray, The Influence of the Catholic Intellectual Tradition on the Common Law, (Faith in Law, Law in Faith (Rafael Domingo, Gary S. Hauk, and Timothy P. Jackson eds., Brill Forthcoming).
• Ronald J. Colombo, Religious Freedom and the Business Corporation, (Hofstra Univ. Legal Studies Research Paper Forthcoming).
• Amanda L. Tyler, Judicial Review in Times of Emergency: from the Founding through the COVID-19 Pandemic, (Virginia Law Review, Vol. 109, No. 3, 2023).
• Johannes Reich, Switzerland – 2022 Review of Constitutional Law: Contested Permanent Neutrality and the Constitutionality of ‘Laïcité’ in Geneva, (Global Review of Constitutional Law (Richard Albert, David Landau, Pietro Faraguna & Giulia Andrade, eds.), Forthcoming).
• S. Ernie Walton, Religious Charter Schools: The Time Has Come, (Regent University Law Review, Pro Tempore, Forthcoming).
• Robert J. Miller, The Vatican Repudiates the International Law of Colonialism - Maybe?, (May 3, 2023).
• Renato Saeger Magalhaes Costa, Free to Teach: State Limits and the Protection of Private Schools Religious Liberties, (Dignitas — Revista Internacional do Instituto Brasileiro de Direito e Religião,  p. 33-80 (2021).
• Brett V. Ries, Don't Be A Drag: How Drag Bans Can Violate the First Amendment, (May 5, 2023).
• Risa L. Goluboff, “Charlottesville” as Legal History, (Journal of American Constitutional History Issue 2, Volume 1, 2023).

From SmartCILP:

• Mark Goldfeder, Codifying Antisemitism, [Abstract], 127 Penn State Law Review 405-454 (2023).

Florida Governor Signs 5 Bills Labeled As "Protecting Innocence of Florida's Children"

On Wednesday, Florida Governor Ron DeSantis signed 5 bills into law which a press release from the governor's office described as "legislation to protect the innocence of Florida's children." 

• Senate Bill 254 (full text) prohibits sex-reassignment prescriptions or procedures for individuals under 18 years of age.
• House Bill 1069 (full text) prohibits K-12 schools from asking students to provide their preferred title or pronoun; prohibits requiring employees or students to refer to others by their preferred pronouns; and prohibits employees from providing their preferred title or pronoun to any student if the title or pronoun does not correspond to the person's biological sex.
• Senate Bill 1438 (full text) prohibits admitting children to sexually explicit adult performances that are pornographic for children. A summary of the bills released by the governor's office says that this includes a ban on admitting children to drag shows.
• House Bill 1521 (full text) requires individual to use restrooms and changing facilities that correspond to their biological sex in educational institutions, correctional institutions and public buildings.
• House Bill 225 (full text) allows charter and online school students to participate in extracurricular activities at public or private schools. It also provides that high school athletic associations that include public schools must allow any school participating in a championship contest to make 2-minute opening remarks using the public address system. It goes on to provide:

The athletic association may not control, monitor, or review the content of the opening remarks and may not control the school’s choice of speaker. Member schools may not provide remarks that are derogatory, rude, or threatening. Before the opening remarks, an announcement must be made that the content of any opening remarks by a participating school is not endorsed by and does not reflect the views and or opinions of the athletic association.... 

A summary of the bills released by the governor's office says that this includes the right to offer public prayer at high school sporting events.

The Washington Stand has additional reporting on the bill signings.

Biden Announces Appointments to Holocaust Memorial Council

On Wednesday, President Biden announced the names of ten individuals whom he intends to appoint to the 68-member Holocaust Memorial Council. The President appoints 55 of the members. Presidential appointees serve five-year terms. Among the ten new appointees are Ted Deutch who is CEO of the American Jewish Committee; Rabbi Michael Beals who is rabbi of a congregation in President Biden's home town of Wilmington, Delaware; and Jonathan Lavine who is co-managing partner of Bain Capital.

New Michigan Law Bars Employment Discrimination Because of Abortion

Yesterday, Michigan Governor Gretchen Whitmer signed SB147 (full text) which amends the Elliott-Larsen Civil Rights Act to bar discrimination because the individual has had an abortion. Bridge Michigan reports on the new law.

European Court Upholds Politician's Conviction for Failing to Remove Third Party Hate Speech from His Facebook Page

In Sanchez v. France, (ECHR, May 15, 2023), the European Court of Human Rights by a vote of 13-4 in a Grand Chamber judgment upheld France's conviction of a candidate for election to Parliament who was convicted of inciting violence against Muslims when he failed to promptly remove anti-Muslim postings by third parties placed on his Facebook page. The authors of the comments were convicted as accomplices. The majority concluded that the conviction did not violate Article 10, §1 of the European Convention on Human Rights since that section permits an interference with free expression when "necessary in a democratic society."  The majority said in part:

148.  While political speech calls for an elevated level of protection, the freedom of political debate is not absolute in nature....

149.  Since tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society, it follows that, in principle, it may be considered necessary in certain democratic societies to penalise or even prevent all forms of expression that propagate, encourage, promote or justify hatred based on intolerance (including religious intolerance), provided that any “formalities”, “conditions”, “restrictions” or “penalties” imposed are proportionate to the legitimate aim pursued.... 

176.  ... [I]n an election context, the impact of racist and xenophobic discourse becomes greater and more harmful.... That is particularly true in the present circumstances where the political and social climate was troubled, especially at the local level with “clear tensions within the population, which were evident in particular from the comments at issue, but also between the protagonists”.... 

209.  ... [T]he Court finds that the decisions of the domestic courts were based on relevant and sufficient reasons, both as to the liability attributed to the applicant, in his capacity as a politician, for the unlawful comments posted in the run-up to an election on his Facebook “wall” by third parties, who themselves were identified and prosecuted as accomplices, and as to his criminal conviction. The impugned interference can therefore be considered to have been “necessary in a democratic society”.

The Court also posted a Legal Summary of the decision.

Counselor Sues After Being Fired for Speaking About School's Gender Support Plan

Suit was filed yesterday in an Indiana federal district court by a school counselor who was fired for speaking with a reporter about her school's Gender Support Plan policy which involves using a gender transitioning student's preferred name and pronouns, sometimes without informing the student's parents. The school claimed that some of the counselor's statements to the reporter were false. The complaint (full text) in McCord v. South Madison Community School Corporation, (SD IN, filed 5/18/2023), alleges that the firing violated the counselor's free speech rights. It also alleged that the school district violated plaintiff's right to free exercise of religion, in violation of the 1st Amendment and of Indiana's Religious Freedom Restoration Act. The complaint alleges in part:

420. ... Mrs. McCord has sincerely held religious beliefs that require her not to participate in the Gender Support Plan policy; socially transitioning students and hiding social transitions from parents would violate those beliefs.

421. If South Madison had not taken adverse employment action against Mrs. McCord in retaliation for exercising her constitutional rights, she could not comply and would not intend to comply with the Gender Support Plan policy’s requirements regarding socially transitioning students and parental notification.

422. South Madison has failed to act in a neutral manner toward Mrs. McCord’s religious beliefs but has instead acted with hostility towards those beliefs.

423. Among other things, its employee, Mr. Taylor, acting pursuant to South Madison’s policies and practices, instructed Mrs. McCord to leave her religious beliefs out of her job as a school counselor.

424. Additionally, South Madison has targeted Mrs. McCord for her religious beliefs by granting accommodations allowing other employees who have not asserted Mrs. McCord’s religious beliefs not to comply with the Gender Support Plan policy, while refusing to grant one to Mrs. McCord.

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

5th Circuit Hears Arguments on FDA Approval of Abortion Drug

Yesterday the U.S. 5th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Alliance for Hippocratic Medicine v. Food & Drug Administration.  In the case, a Texas federal district court held that plaintiffs have a substantial likelihood of success on their claim that the FDA's 2021 action allowing the abortion drug mifepristone to be distributed by mail violates the Comstock Act and thus was also in violation of the Administrative Procedure Act. The court also concluded that the FDA's approval in 2000 of doctors prescribing mifepristone violated the agency's rules for approval of new drugs. (See prior posting.) Last month, the U.S. Supreme Court granted a stay of the district court's order that is to last until appeals to both the 5th Circuit and the Supreme Court have run their course. (See prior posting.)  CNN reports on yesterday's oral arguments.

Texas Legislature Passes Law Banning Gender-Affirming Health Care for Individuals Under 18

Yesterday the Texas legislature gave final approval to SB 14 (full text) which prohibits the provision of gender transitioning or gender reassignment procedures to individuals under 18 years of age. The bill bars both surgeries and puberty suppression or blockers. The state medical board is required to revoke the license of any physician who violates the treatment ban. Texas Governor Greg Abbott is expected to sign the bill.  AP reports on the bill's passage.

Establishment Clause Challenge to Transcendental Meditation Program in High School Moves Ahead

In Williams v. Board of Education of the City of Chicago, (ND IL, May 16, 2023), an Illinois federal district court refused to grant summary judgment to either side on an Establishment Clause challenge to a high school's elective instruction in Transcendental Meditation brought by former student Amonte Williams.  The court said in part:

[T]here is evidence that a Transcendental Meditation instructor separated Williams from his classmates and brought him individually to a different classroom for the initiation. A reasonable jury could find that Williams, having arguably signed up to be trained in Transcendental Meditation, was then required to observe a religious ceremony in order to learn meditation and was misled about the ceremony's religious nature. The scenario as presented by Williams differs from the school prayer cases ... because there was no imposition or mention of any specific beliefs by the defendants. But the initiation ceremony distinguishes this situation from those cases involving the simple practice of Yoga in schools.... The evidence in this record— most notably the details of the initiation ceremony—suggest that a reasonable jury could find that the Transcendental Meditation training as implemented was religious in nature or at least included a required religious ceremony....

... A reasonable jury could find that Williams felt pressured to support the purportedly religious aspects of Transcendental Meditation during the initiation ceremony, when he saw various items placed around a picture of a teacher of Transcendental Meditation while the instructor spoke in a language he did not understand. It is less clear whether Williams would have felt pressured to support the instructor-led meditation in the classrooms.... [T]he Court denies the defendants' motion for summary judgment.... To the extent that Williams intended to move for summary judgment on his Establishment Clause claim ...,  the Court denies the motion. The reason is that a reasonable jury could find that there was no "captive audience," that the initiation ceremony was not religious in nature, or that Williams did not feel pressured to support any religious aspects of the program.

7th Grader Sues Over School's Hate Speech Dress Code

Suit was filed yesterday in a Massachusetts federal district court challenging the Middleborough school district's Dress Code which provides:

Clothing must not state, imply, or depict hate speech or imagery that target groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.

The complaint (full text) in Morrison v. Town of Middleborough, (ED MA, filed 5/17/2023), alleges that a 7th-grader's free speech rights were violated when he was not permitted to attend classes wearing a T-shirt carrying the message, "There are only two genders". Two weeks later he came to school wearing a shirt with the message, "There are censored genders". He was also barred from wearing this shirt.  The complaint alleges in part:

101. As Defendants interpret their Speech Policy, some viewpoints on the topic of “gender identity or expression” are permitted while some viewpoints on the same topic are prohibited. In particular, speech expressing the viewpoint that there are only two genders is prohibited, while speech expressing the viewpoint that gender is fluid and is on a spectrum is permitted....

135. Defendants’ censorship of Liam’s shirts while permitting shirts and other apparel with different messages on related topics is viewpoint discrimination, which is unconstitutional in any type of forum....

153. The Due Process Clause of the Fourteenth Amendment prohibits the government from censoring speech pursuant to vague standards that grant enforcement officials unbridled discretion.

154. The arbitrary determination by school officials of what is and is not “hate speech,” what speech “targets” a specific group, or what speech is “unacceptable to community standards” violates this norm.

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

North Carolina Legislature Overrides Veto of Abortion Law

 The North Carolina legislature last night voted to override Governor Roy Cooper's veto of Senate Bill 20 which imposes elaborate new restrictions on abortions in the state, summarized in this prior posting. 

Reuters reports on the legislature's action.

Air Force Announces Portal To Process Religious Exemption Requests

The U.S. Air Force announced last week that it has developed a Portal to streamline requests for religious accommodation filed by Air Force, Space Force, and civilian employees, as well as appeals from denials of requests. According to an Air Force official:

The service has seen an exponential increase in religious accommodation requests, and the portal offers a systemic automated solution to ensure our servicemembers and civilians are assisted in the most expeditious manner going forward.

The Air Force has been embroiled in litigation filed by service members seeking religious exemptions from the military's COVID vaccine mandate. (See prior posting.)

9th Circuit Remands Employees' Challenge to Vaccine Exemption Denial

In Keene v. City and County of San Francisco, (9th Cir., May 15, 2023), the U.S. 9th Circuit Court of Appeals reversed and remanded a decision from a California federal district court that denied preliminary relief to two city and county employees who were denied religious exemptions from CCSF's COVID vaccine mandate. The appeals court said in part:

The district court erroneously concluded that “[n]either Plaintiff has demonstrated that their religious beliefs are sincere or that those beliefs conflict with receiving the COVID-19 vaccine...."...

Beyond the district court’s factual error, its decision reflects a misunderstanding of Title VII law. A religious belief need not be consistent or rational to be protected under Title VII, and an assertion of a sincere religious belief is generally accepted.... 

The district court did not explain its conclusion that Appellants had not established sincerity beyond stating that there are “no grounds upon which to assert the mistaken conclusion that the FDA-approved vaccines . . . are . . . derived from murdered babies” and generally stating that personal preferences are not sincere religious beliefs. And CCSF offered no argument or evidence that Appellants’ beliefs are insincere. Absent any indication otherwise, it seems that the district court erroneously held that Appellants had not asserted sincere religious beliefs because their beliefs were not scientifically accurate. Remand is warranted for the district court to reevaluate Appellants’ claims applying the proper failure-to-accommodate inquiry....

Courthouse News Service reports on the decision.

DOE Updates Guidance on Prayer In Public Schools

Yesterday, the U.S. Department of Education issued an updated Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools. The Guidance document points out that the Elementary and Secondary Education Act requires the Secretary of Education to issue such guidance to state and local education agencies, and local agencies must certify that they do not have policies that deny participation in constitutionally protected prayer. The Guidance reads in part:

Teachers, school administrators, and other school employees may not encourage or discourage private prayer or other religious activity.

The Constitution does not, however, prohibit school employees themselves from engaging in private prayer during the workday where they are not acting in their official capacities and where their prayer does not result in any coercion of students. Before school or during breaks, for instance, teachers may meet with other teachers for prayer or religious study to the same extent that they may engage in other conversation or nonreligious activities. School employees may also engage in private religious expression or brief personal religious observance during such times, subject to the same neutral rules the school applies to other private conduct by its employees. Employees engaging in such expression or observance may not, however, compel, coerce, persuade, or encourage students to join in the employee's prayer or other religious activity, and a school may take reasonable measures to ensure that students are not pressured or encouraged to join in the private prayer of their teachers or coaches.

Americans United issued a press release welcoming the updated Guidance.

State Department Releases 2022 Report on International Religious Freedom

Yesterday the U.S. State Department released its 2022 Report on International Religious Freedom (full text). The Report describes the status of religious freedom in 196 countries. The Report is submitted annually to Congress in compliance with the International Religious Freedom Act. Secretary of State Blinken, announcing release of the report, said in part:

Over the past year we’ve seen real progress in some parts of the world on expanding religious freedom as people demanded their rights.  Civil society groups pushed for change and governments listened.

Unfortunately, the report also documents the continuation and, in some instances, the rise of very troubling trends.  Governments in many parts of the world continue to target religious minorities using a host of methods, including torture, beatings, unlawful surveillance, and so-called re-education camps.  They also continued to engage in other forms of discrimination on the basis of faith or lack of faith, like excluding religious minorities from certain professions or forcing them to work during times of religious observance.

Governments use anti-conversion, blasphemy, apostasy laws, which ban the act of leaving a faith, to justify harassment against those who don’t follow their particular interpretation of a theology, often weaponizing those laws against humanists, atheists, and LGBTQI+ individuals....

In a press release, the U.S. Commission on International Religious Freedom reacted to the State Department's Report.

Recent Articles of Interest

From SSRN:

• Raphaële Xenidis, Intersectionality from Critique to Practice: Towards An Intersectional Discrimination Test in the Context of ‘Neutral Dress Codes’, (European Equality Law Review 2/2022).
• Brian Hutler, Public Health Deference: Rethinking the Judicial Enforcement of Constitutional Rights during a Pandemic, (Syracuse Law Review, Vol. 73, No. 1, 2023).
• Bruno Santos Cunha & Renato Saeger Magalhaes Costa, Brazilian Supreme Court to Judge whether Jehovah’S Witnesses May Refuse Blood Transfusions Occasionally Needed after or during Surgical Procedures,( 2023).
• Leonardo Madio & Francesco Principe, Who Supports Liberal Policies? A Tale of Two Referendums in Italy (May 10, 2023).
• Naeem Rind & Danish Ahmed Siddiqui, A Comparative Analysis of Jurisprudence: Common, Muslim, Jewish and Civil Laws, (April 28, 2023).
• Michael P. Moreland, Response: Contingency and Contestation in Christianity and Liberalism, (Notre Dame Law Review, Forthcoming).
• Michael P., Moreland, Germaneness and Religious Liberty, (Notre Dame Law Review, Forthcoming).
• Michael P. Moreland, Christianity and Torts, (Forthcoming in John Witte, Jr. and Rafael Domingo, eds., Oxford Handbook on Christianity and Law (Oxford University Press, 2023)).
• Jamie R. Abrams, Re-evaluating Regional Law Reform Strategies After Dobbs, (ConLawNOW, Vol. 14, 2023).
• Hisham Ul Wahab Puthiyakath, Islamophobia: Discourse, Recognition and Implications, (March 30, 2023).

From SmartCILP:

• Dennis P. Petri & Marlies Glasius, Vulnerability and Active Religious Behavior: Christians and Crime Syndicates in Mexico, 44 Human Rights Quarterly 514-536 (2022).
• Frank S. Ravitch, Contextual Benefits of a Neutral Principles Approach to Religious Property Disputes, 2021 Michigan State Law Review 1347-1376 (2021).
• Anita Bernstein, Without Religion, W(h)ither Family Law?, 2021 Michigan State Law Review 1489-1528 (2021).

North Carolina Governor Vetoes New Abortion Restrictions

Yesterday, North Carolina Governor Roy Cooper vetoed (veto message) (press release) Senate Bill 20 (full text) which imposed numerous new restrictions on abortions.  According to the General Asembly Conference Committee's summary of the bill:

Part I of the Conference Committee Substitute to Senate Bill 20 would repeal and replace the current abortion law in North Carolina. Under the new law, abortion would be permitted through the first twelve weeks of pregnancy for any reason, through the twentieth week of pregnancy if the pregnancy resulted from rape or incest, through the twenty-fourth week of pregnancy if there is a life-limiting anomaly in the unborn child, and at any time if there is a medical emergency for the pregnant woman. Part I would also criminalize the provision or advertising of abortion-inducing drugs in certain circumstances, prohibit eugenic abortions, and establish informed consent and reporting requirements for abortion.

NPR reports on the governor's action, saying that now a veto override battle will take place in the legislature.

Montana Supreme Court: State Constitution Protects Abortion Care by Advance Practice Registered Nurses

In Weems v. State of Montana, (MT Sup. Ct., May 12, 2023), the Montana Supreme Court held that a 2005 Montana statute that bars Advance Practice Registered Nurses from delivering abortion care violates the Montana Constitution.  The court summarized its decision:

Article II, Section 10, of the Montana Constitution guarantees a woman a fundamental right of privacy to seek abortion care from a qualified health care provider of her choosing, absent a clear demonstration of a medically acknowledged, bona fide health risk. The State has failed to meet its burden of demonstrating that APRN-FNPs and APRN-CNMs providing abortion care present a medically acknowledged, bona fide health risk. The State has failed to present any evidence that demonstrates abortions performed by APRNs include more risk than those provided by physicians or PAs. The State has failed to identify any reason why APRNs should be restricted from providing abortions, and thus failed to articulate a medically acknowledged, bona fide health risk. The District Court correctly determined that no genuine dispute of material fact exists regarding the safety and efficacy of APRNs providing early abortion care. Accordingly, § 50-20-109(1)(a), MCA, is an unconstitutional interference with a woman’s right of privacy to seek medical care from a qualified provider of her choice.

Law & Crime reports on the decision.

New Florida Law Protects Conscience Rights of Health Care Providers

 Yesterday Florida Governor Ron DeSantis signed Senate Bill 1580 (full text) which protects conscience rights of health care providers and insurers. The law provides in part:

It is the intent of the Legislature to provide the right of medical conscience for health care providers and payors to ensure they can care for patients in a manner consistent with their moral, ethical, and religious convictions. Further, it is the intent of the Legislature that licensed health care providers and payors be free from threat of discrimination for providing conscience-based health care....

 A health care provider or health care payor has the right to opt out of participation in or payment for any health care service on the basis of a conscience-based objection....

A board ... may not take disciplinary action against a health care practitioner’s license or deny a license to an individual solely because the individual has spoken or written publicly about a health care service or public policy, including, but not limited to, speech through the use of a social media platform ... provided that the individual is not using such speech or written communication to provide medical advice or treatment to a specific patient or patients....

Pensacola News Journal reports on the new law.

8th Circuit Upholds Constitutionality of Federal Ban on Damaging Religious Real Property

In United States v. Hari, (8th Cir., May 10, 2023), the U.S. 8th Circuit Court of Appeals upheld the constitutionality under the Commerce Clause of 18 USC §247.  The statute bars damaging religious real property because of the religious character of the property, and bars obstructing a person's enjoyment of free exercise of religion by force or threat of force against them or against religious real property, when the person's conduct affects interstate commerce. The court said in part:

Here, the statute specifically requires that the offense “affects interstate or foreign commerce.” This “ensures, through a case-by-case inquiry, that each defendant’s [offense] affected interstate commerce.”

The court also upheld defendant's conviction under 18 USC § 924(c)(1) for carrying or using a destructive device during and in relation to any crime of violence.  The conduct for which defendant was convicted was described by the court:

In August 2017, Emily Hari loaded a pickup truck with a 20 pound pipe bomb, two assault rifles, and a sledgehammer and drove with two confederates from Illinois to the Dar al-Farooq Islamic Center in Bloomington, Minnesota. The trio smashed a window of the Imam’s office before the parishioners’ dawn prayer and threw gasoline, diesel fuel, and the pipe bomb inside. The bomb detonated. No one was injured; the building suffered fire and smoke damage. Hari and the others fled.

Alabama Law Protects Identity of Donors, Supporters, Volunteers and Members of Non-Profits

Yesterday, Alabama Governor Kay Ivey signed S-59, The Personal Privacy Protection Act (full text). The new law prohibits any governmental agency from requiring disclosure of, or from releasing information about, the identity any member. supporter, volunteer, or donor of a non-profit organization.  It also bars requiring any current or prospective contractor or grantee to disclose non-profits to which it has donated or provided support. The Act contains a number of exceptions, including required disclosures under campaign finance laws.  Indiana has recently enacted a similar statute. (See prior posting.) ADF issued a press release announcing the signing of the law.

European Court: Finland May Require Jehovah's Witnesses to Obtain Consent Before Taking Notes on Those They Visit

In Jehovah's Witnesses v. Finland, (ECHR, May 9, 2023), the European Court of Human Rights held that Finland's data collection regulations did not infringe the religious freedom protected by Article 9 of the European Convention on Human Rights of Jehovah's Witnesses who proselytized door-to-door.  At issue was notes taken by Jehovah's Witnesses in the course of their door-to-door preaching identifying those who did not wish to be visited again, and those who are deaf or spoke a foreign language so Witnesses who knew sign language or the relevant foreign language could visit in the future. Finland's Data Protection Ombudsman had held that this personal data could not be collected without the explicit consent of the person in question. Upholding that determination, the court said in part:

The relevant order had been based on the Personal Data Act in force at the time of the proceedings. That law was formulated with sufficient precision and aimed to protect the rights and freedoms of others. The Supreme Administrative Court had taken into account the fact that individuals whose personal data had been collected were entitled to trust that their data were not collected without their knowledge and consent. They also had a legitimate expectation, guaranteed by law, that they would have access to the data and, if necessary, the right to require that the data be corrected or deleted. Ensuring the rights of data subjects therefore inspired confidence rather than distrust in the applicant community’s activities. The consent requirement and the fact that it did not interfere with the core areas of the applicant community’s freedom of religion or freedom of expression had thus been proportionate.

Courthouse News Service reports on the decision.

EEOC Sues IHOP Restaurant for Failing to Accommodate Cook's Religious Beliefs

The EEOC announced yesterday that it has filed a Title VII religious discrimination suit in a North Carolina federal district court against a Charlotte, North Carolina IHOP restaurant operated by Suncakes, LLC.  The EEOC charged that the restaurant failed to reasonably accommodate an employee's religious exercise:

... Suncakes hired a cook ... in January 2021. At the time of hire, the employee requested and was granted a religious accommodation of not working on Sundays to honor his religious observances. After a change in management in April 2021, the new general manager expressed hostility toward the accommodation and required the employee to work on Sunday, April 25 and Sunday, May 9. After the May 9 shift, the employee told the general manager he would not be working the following Sunday. The general manager refused to allow the employee to work his next scheduled shift and fired him. The manager then made comments to other employees such as, “religion should not take precedence over [the employee’s] job”” and that the employee “thinks it is more important to go to church than to pay his bills.”

Satanic Temple Sues to Deliver Invocation at Chicago City Council

The Satanic Temple filed suit last week in an Illinois federal district court challenging the city's exclusion of its clergy from delivering an invocation before Chicago City Council.  The complaint (full text) in The Satanic Temple, Inc. v. City of Chicago, (ND IL, filed 5/3/2023) alleges in part:

2. The City of Chicago has a longstanding practice of inviting clergy to open each meeting of its City Council with a prayer. 

3. Plaintiffs, The Satanic Temple Inc. (“TST”), and Adam Vavrick, an ordained minister of the Satanic Temple and a leader of TST’s Illinois congregation, seek to take part in this time-honored tradition by delivering an invocation before a City Council meeting. For more than three years, the City has rebuffed Plaintiffs’ efforts to provide an invocation without providing any clear explanation of why. 

4. The City’s practices with regard to invocations before City Council violate the First Amendment in two ways:

first, the City violates the First Amendment’s establishment clause by excluding disfavored minority faiths from the opportunity to provide an invocation; and 

second, the City grants the City Clerk unconstrained discretion to decide who can and cannot deliver an invocation because it lacks any standards for selection of clergy to give invocations and has not established a uniform process for members of the clergy to apply to give an invocation.

Reason reports on the lawsuit.

Teachers Sue Over School District's Policy on Transgender Students

Suit was filed last month in a California federal district court by two middle school teachers who claim that their school district's policy on dealing with transgender students violates their free speech and free exercise rights, as well as the rights of parents.  The complaint (full text) in Mirabelli v. Olson, (SD CA, filed 4/27/2023), alleges in part:

According to EUSD’s policies, all elementary and middle school teachers must unhesitatingly accept a child’s assertion of a transgender or gender diverse identity, and must “begin to treat the student immediately” according to their asserted gender identity. “There’s no requirement for parent or caretaker agreement or even for knowledge.”... There is absolutely no room for discussion, polite disagreement, or even questioning whether the child is sincere or acting on a whim. 

... Once a child’s social transitioning has begun, EUSD elementary and middle school teachers must ensure that parents do not find out. EUSD’s policies state that “revealing a student’s transgender status to individuals who do not have a legitimate need for the information, without the student’s consent” is prohibited, and “parents or caretakers” are, according to EUSD, individuals who “do not have a legitimate need for the information,” irrespective of the age of the student or the specific facts of the situation....

Faced with EUSD’s immoral policies deceiving parents, both Mrs. Mirabelli and Mrs. West sought an accommodation that would allow them to act in the best interests of the children in their care—as required by their moral and religious convictions....

Mrs. Mirabelli’s and Mrs. West’s request was flatly denied.

The two plaintiffs devised a "joint statement of faith" for purposes of the lawsuit, even though they come from different religious traditions. One is Roman Catholic and the other a "devout Christian."  They alleged:

Plaintiffs’ faith teaches that God immutably creates each person as male or female; these two distinct, complementary sexes reflect the image of God; and rejection of one’s biological sex is a rejection of the image of God within that person.

... Plaintiffs also believe that they cannot affirm as true those ideas and concepts that they believe are not true, nor can they aid and abet the deception of others. Doing so, they believe, would violate biblical commands against dishonesty and lying.

Fox News reports on the lawsuit.

Oakland Catholic Diocese Files for Chapter 11 Reorganization.

The Catholic Diocese of Oakland, California announced yesterday that it is filing for Chapter 11 bankruptcy reorganization, saying in part:

The filing is necessary in light of the more than 330 lawsuits alleging child sexual abuse brought against RCBO under a recent California statute that allowed decades-old claims otherwise time barred and expired to be filed....

Most of the claims brought under the most recent California statute stem from allegations of sexual abuse that occurred in the 1960s, 70s, and 80s by priests who are no longer active in ministry and/or deceased. Chapter 11 is a court-supervised, transparent process that allows for the evaluation of the merits of each claim and gives claimants a say in the outcome and visibility into the proceedings and RCBO’s finances. With the Chapter 11 filing, legal actions against RCBO will stop, allowing RCBO to develop a plan of reorganization, based on assets and insurance coverage available to be used to settle claims with abuse survivors.

Catholic schools that operate in the diocese are separate entities and are not included in the bankruptcy filing.

Recent Articles of Interest

From SSRN:

• Elana Falletti, The Reformation and the Marriage: the Duty of Fidelity and Adultery, ( 2023).
• Mridusmita Baruah, The Jurisprudence of Human Rights in the Vicinity of Religion, (April 21, 2023).
• Ann Schiavone, A "Mere Shadow" of a Conflict: Obscuring the Establishment Clause in Kennedy v. Bremerton, (Duquesne University Law Review, Vol. 61, No. 1, 2023).
• Hila Keren, 303 Creative v Elenis: What's Wrong with Preemtive Litigation of Discrimination, (May 2, 2023).
• Mugambi Jouet, A History of Post-Roe America and Canada: From Intertwined Abortion Battles to American Exceptionalism, (Michigan Journal of Gender & Law, Forthcoming).
• Robin S. Maril, From Liberation To (Re)Criminalization: Dobbs v. Jackson Women’s Health Organization, Bodily Autonomy, and the Expansion of State Rights, (SMU L. Rev., Forthcoming).
• Zachary Garrett, The Ghost of Gilbert: Title VII Abortion Discrimination Actions After Dobbs, (University of St. Thomas Law Journal, Forthcoming).
• Hila Keren, Beyond Discrimination: Market Humiliation and Private Law, (University of Colorado Law Review, Forthcoming).

From SSRN (Islam and Islamic Law):

• A.F.M. Maniruzzaman, Islamic Finance and Dispute Resolution - An Introduction, (Transnational Dispute Management - TDM 6 (2022)).
• Ruta Prabudesai, Richa Dwivedi & Varun Sharma, Comparison of Hindu and Muslim Personal Laws with Goa’s Portuguese Civil Code: Special Reference to Rights of Women, (Cardiometry- Original Research, Issue 24. November 2022).
• Mohammad Fadel, A Place for Pluralism: Rethinking the 'Problem' of Islam in the Middle East, (Foreign Policy at Brookings, March 2023).
• Sahar F. Aziz & Sarah Calderone, Islamophobia in Russia: Ethnicity, Migration, and National Security, (Global Islamophobia in an Era of Populism (Oxford 2024) (Forthcoming)).

From SmartCILP:

• Patrick M. Garry, The Supreme Court Corrects a Seventy-Five-Year Distortion in Establishment Clause Jurisprudence, 56 Indiana Law Review 95-118 (2022).
• Dorit R. Reiss & John DiPaolo, COVID-19 Vaccine Mandates for University Students, 24 N.Y.U. Journal of Legislation & Public Policy 1-66 (2021).

King Charles Coronation Ceremony for First Time Includes Participation by Non-Anglican Faith Leaders

The Church of England has published (full text) the 42-page Authorized Liturgy for the Coronation Rite of His Majesty King Charles III along with Commentary on each portion of the liturgy. Unique to Charles' coronation is the participation of representatives of faith communities outside the Church of England. Representatives of other Christian communities will offer blessings during the Coronation service (see pg. 25). They are The Greek Orthodox Archbishop of Thyateira & Great Britain; The Moderator of The Free Churches; The Secretary General of Churches Together in England; and The Cardinal Archbishop of Westminster. The Church of England's Commentary to this portion of the liturgy reads:

The progress of ecumenical relations since 1953 means that, for the first time, this Blessing is to be shared by Christian leaders across the country.

In addition, non-Christian faith leaders will have a role in the Coronation. The ceremony begins with a Procession of Faith Leaders & Representatives of Faith Communities (see pg. 2).  The Commentary to the liturgy reads:

Faith Leaders and representatives from the Jewish, Sunni and Shia Muslim, Sikh, Buddhist, Hindu, Jain, Bahai and Zoroastrian communities will be part of the procession into Westminster Abbey. 

This represents the multi-faith nature of our society and the importance of inclusion of other faiths whilst respecting the integrities of the different traditions.

The ceremony ends with the new King receiving a greeting by representatives of the Jewish, Hindu, Sikh, Muslim, and Buddhist faith communities:

As the King stands before the Leaders and Representatives of the Faith Communities, they deliver the following greeting in unison. 

Faith Leaders & Representatives: 

Your Majesty, as neighbours in faith, we acknowledge the value of public service. We unite with people of all faiths and beliefs in thanksgiving, and in service with you for the common good.

The King acknowledges the greeting, and turns to greet the Governors-General.

The Commentary to this section of the Liturgy reads:

In an unprecedented gesture consolidating the significance of the religious diversity of the Realms, the Sovereign will take his final moments of the service to receive a greeting from the leaders and representatives from the major non-Christian faith traditions. 

In a spoken greeting these faith leaders and representatives speak with their own voices, as communities, but deliver the greeting in unison, as a community of faiths, united in the service of others, and in thanksgiving for His Majesty’s example this day, and every day of his reign. 

We remain grateful to all faith communities for exploring ways in which such an act of unity could be produced, and especially to the Jewish community for finding ways to make this possible without compromising the observance of Shabbat.

CNN reported that  England's Chief Rabbi was invited to stay at St. James Palace over the Sabbath so that he could walk to the ceremony at Westminster Abbey.  Catholic News Agency in an article titled Catholic prelate to participate in British coronation for first time since Reformation reported that the Catholic Bishops’ Conference of England and Wales in advance of the Coronation has issued a special prayer card with prayers for the King. Law & Religion UK has additional reporting on the coronation.

Indiana Governor Signs Bill Protecting Privacy of Donors and Members of Nonprofits

On May 4, Indiana Governor Eric Holcomb signed House Bill 1212 (full text) which protects the privacy of information about the identity of members, supporters, volunteers and donors to nonprofit organizations. Among other things, under the new law governmental agencies and governmental subdivisions may not require nonprofits to furnish lists of donors, members, volunteers or supporters, may not release information of that sort that is in their possession, nor require a prospective contractor or grantee to disclose nonprofits to which it has donated.  The new law has a number of exceptions, including disclosures required by campaign finance and lobbying disclosure laws. ADF issued a press release announcing the signing of the bill.

New British Law Creates 150 Meter Buffer Zone Around Abortion Clinics

 On May 2, Britain's Public Order Act 2023 gained Royal Assent. Section 9 of the Act (full text) creates a 150 meter safe access zone around any abortion clinic.The section provides in part:

It is an offence for a person who is within a safe access zone to do an act with the intent of, or reckless as to whether it has the effect of—

(a)influencing any person’s decision to access, provide or facilitate the provision of abortion services at an abortion clinic,

(b)obstructing or impeding any person accessing, providing, or facilitating the provision of abortion services at an abortion clinic, or

(c)causing harassment, alarm or distress to any person in connection with a decision to access, provide, or facilitate the provision of abortion services at an abortion clinic....

where the person mentioned in paragraph (a), (b) or (c) is within the safe access zone for the abortion clinic.

The Secretary of State must still promulgate the effective date of this section.  Law & Religion UK has more on the new law.

Montana Governor Signs 5 Abortion-Related Bills

On Wednesday, Montana Governor Greg Gianforte signed into law five bills recently passed by the Montana legislature which regulate abortion procedures or availability.  The Daily Montanan reports on the bills that will now become law. Here is its description of each bill:

Senate Bill 154 ... carves out an exception to abortion under the constitutional right to privacy. A legal review note for the bill said it was at odds with the state constitution, which [Senate Judiciary Chairman Sen. Kieth] Regier responded to in a rebuttal saying it was the state’s Supreme Court that decided that abortion was covered under the right to privacy, and not the constitution.

House Bill 303... provides protections for medical practitioners and facilities that object to participation in health care services based on conscience, defined as “ethical, moral, or religious beliefs or principles.”...

House Bill 575 ... bans abortions after 24 weeks with a definition for viability by that stage of development, and it requires medical practitioners to perform and keep record of an ultrasound. 

House Bill 625 ... is a resurrection of the ballot issue LR-131 that voters rejected last fall, which would have required doctors save any infant born alive after an abortion later in pregnancy.

House Bill 786 ... has the state create regulations for the “humane disposition” of dead infants and fetuses, and other regulations of maternal complications and deaths tied “directly or indirectly” to abortions.

Five additional abortion-related bills are close to being submitted to the Governor for his signature.