Justice Department Reaches Settlement with Township Over Sewage Restrictions on Amish Residents

 In a press release yesterday the Justice Department announced that it has reached a settlement agreement (full text of proposed Consent Order) with Sugar Grove, Pennsylvania Township and its Sewage Authority in a RLUIPA lawsuit. The suit claims that defendants have burdened the religious exercise of Old Order Amish residents by requiring that they connect to the municipal sewage system and by barring privies on private property intended for permanent residences. According to the press release:

As part of the consent order, the Township and SUGASA will exempt certain Old Order Amish households from mandatory connection to the municipal sewage system, permit Old Order Amish residents to use privies on their private properties, and forgive any outstanding liens, fines, or other monetary penalties against Old Order Amish households for prior noncompliance with the two ordinances. The consent order also requires the Township and SUGASA to train its officials and employees on RLUIPA’s provisions, establish a procedure for receiving and resolving RLUIPA complaints, and provide reports to the United States.

The consent order must still be approved by the court.

Court Refuses to Enjoin Colorado's Reporting Requirements for Health Care Sharing Ministries

In Alliance of Health Care Sharing Ministries v. Conway, (D CO, Jan. 13, 2025), a Colorado federal district court refused to issue a preliminary injunction to prevent enforcement of Colorado's reporting requirement for health care sharing plans, most of which are religiously affiliated. The court said in part:

The Alliance has not made a showing—strong or otherwise—that it is likely to succeed on the merits of any of its claims.  First, the Alliance has not demonstrated that the Reporting Law is not neutral or generally applicable, or that it is not rationally related to a legitimate government interest.  Accordingly, the Alliance has not shown that it is likely to succeed on the merits of its free exercise claim.  Second, generally applicable administrative and recordkeeping regulations like the Reporting Law do not violate the Establishment Clause.  The Alliance is therefore unlikely to succeed on the merits of its Establishment Clause claim.  Third, the Alliance has not shown that the Reporting Law’s requirement that the Alliance’s members disclose certain third-party vendors poses any risk of chilling the Alliance’s members’ First Amendment associational rights.  Thus, the Alliance’s challenge to the Reporting Law on freedom-of-association grounds is unlikely to succeed.  Fourth and finally, the Alliance has not shown that the Reporting Law—in compelling the Alliance’s members divulge their marketing materials and to report factually accurate operations data—violates the Alliance’s members’ free speech rights.  The Alliance therefore has not shown that it is likely to succeed on the merits of its free speech claim.

In a motion filed Jan. 28 (full text), plaintiff seeks an injunction pending appeal.

Executive Order Encourages School Choice

Yesterday, President Trump issued an Executive Order (full text) titled Expanding Educational Freedom and Opportunity for Families. The Executive Order focuses on methods for expanding the availability of school choice. It says in part:

When our public education system fails such a large segment of society, it hinders our national competitiveness and devastates families and communities.  For this reason, more than a dozen States have enacted universal K-12 scholarship programs, allowing families — rather than the government — to choose the best educational setting for their children.  These States have highlighted the most promising avenue for education reform:  educational choice for families and competition for residentially assigned, government-run public schools....

... It is the policy of my Administration to support parents in choosing and directing the upbringing and education of their children....

...  [T]he Secretary of Education shall issue guidance regarding how States can use Federal formula funds to support K-12 educational choice initiatives....

... [T]he Secretary of Defense shall review any available mechanisms under which military-connected families may use funds from the Department of Defense to attend schools of their choice, including private, faith-based, or public charter schools, and submit a plan to the President describing such mechanisms....

[T]he Secretary of the Interior shall review any available mechanisms under which families of students eligible to attend BIE [Bureau of Indian Education] schools may use their Federal funding for educational options of their choice, including private, faith-based, or public charter schools, and submit a plan to the President describing such mechanisms....

Maine Supreme Court Invalidates Retroactive Removal of Limitation Period for Child Sex Abuse Claims

In Dupuis v. Roman Catholic Bishop of Portland, (ME Sup. Ct., Jan. 28, 2025), Maine's Supreme Judicial Court, in a 4-2 decision, held that Maine's Constitution bars legislative revival of a cause of action after it has been extinguished by a pre-existing statute of limitations. In the case, the Maine legislature removed any limitation period for sexual acts toward minors.  Numerous plaintiffs sued the Roman Catholic Bishop of Portland for damages for sexual abuse by the Bishop's clergy that took place while plaintiffs were children. The claims were barred by the previous statute of limitations before the removal of limitation periods was enacted. The majority said in part:

... [A]s early as our founding and many times thereafter, we have interpreted our constitutional text to reject retrospective legislation impairing vested rights....

There can be no doubt that we as a society have gained a new understanding of the effect of trauma and the delays that it can cause in the ability of a victim to pursue a cause of action.  Such evolved knowledge provides support for the elimination of any statute of limitations for torts involving sexual assaults.  But the issue here is not the propriety of the elimination of a statute of limitations but rather the revival of a claim after the relevant existing statute of limitations has expired....

Justice Douglas, joined by Justice Lawrence, filed a dissenting opinion, saying in part:

The question here is not whether a duly enacted statute of limitations is constitutional.  Rather, the question is whether the Constitution bars the Legislature from reviving a claim after rebalancing competing policies in light of an evolved understanding of the dynamics of childhood sexual abuse that may have prevented victims from asserting their claims earlier.

Portland Press Herald reports on the decision. [Thanks to Thomas Rutledge and Scott Mange for the lead.]

President Issues New Executive Order on Combatting Antisemitism

President Trump yesterday issued a new Executive Order (full text) titled Additional Measures to Combat Anti-Semitism. The Order reaffirms Executive Order 13899 issued by Trump during his prior term as President. That Order called for the use of Title VI of the 1964 Civil Rights Act to combat antisemitism, and provided that federal agencies should use the International Holocaust Remembrance Alliance's definition of antisemitism in their enforcement activities. The new Executive Order issued yesterday provides in part:

Sec. 2.  Policy.  It shall be the policy of the United States to combat anti-Semitism vigorously, using all available and appropriate legal tools, to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence.

Sec. 3.  Additional Measures to Combat Campus Anti-Semitism.  (a)  Within 60 days of the date of this order, the head of each executive department or agency (agency) shall submit a report to the President ... identifying all civil and criminal authorities or actions within the jurisdiction of that agency, beyond those already implemented under Executive Order 13899, that might be used to curb or combat anti-Semitism, and containing an inventory and analysis of all pending administrative complaints ... against or involving institutions of higher education alleging civil-rights violations related to or arising from post-October 7, 2023, campus anti-Semitism....

(c)  The Attorney General is encouraged to employ appropriate civil-rights enforcement authorities, such as 18 U.S.C. 241, to combat anti-Semitism.

The White House yesterday, ahead of releasing the text of the Executive Order, distributed a Fact Sheet (full text) titled: "President Donald J. Trump Takes Forceful and Unprecedented Steps to Combat Anti-Semitism." The Fact Sheet says in part that:

Immediate action will be taken by the Department of Justice to protect law and order, quell pro-Hamas vandalism and intimidation, and investigate and punish anti-Jewish racism in leftist, anti-American colleges and universities.

The Order demands the removal of resident aliens who violate our laws.

Trump Removes 2 EEOC Commissioners; New Acting Chair Says Agency Is Rolling Back Biden's "Gender Identity Agenda"

Federal News Network on Tuesday reported that President Donald Trump has removed two Democratic members of the Equal Employment Opportunity Commission. One of those removed was Charlotte Burrows, formerly the Chair of the Commission until President Trump designated a new Acting Chair last week. The other Commissioner removed was Jocelyn Samuels who served as Vice Chair of the Commission until removed by President Trump from that position last week. These removals appear to leave the Commission without a quorum necessary to act.

Meanwhile, in a press release issued Tuesday, the EEOC's new Acting Chair Andrea Lucas said that the agency is "rolling back the Biden administration’s gender identity agenda," and announced the removal of various references to transgender and non-binary gender markers in forms and publications. She pointed out however that she is unable unilaterally to remove provisions in strategic plans and enforcement guidance documents that relate to protection of transgender individuals because those documents were adopted by votes of the full Commission. The press release added, in part:

... Acting Chair Lucas has been vocal in her opposition to portions of EEOC’s harassment guidance that took the enforcement position that harassing conduct under Title VII includes “denial of access to a bathroom or other sex-segregated facility consistent with [an] individual’s gender identity;” and that harassing conduct includes “repeated and intentional use of a name or pronoun inconsistent with [an] individual’s known gender identity.”

Although Acting Chair Lucas currently cannot rescind portions of the agency’s harassment guidance that are inconsistent with Executive Order 14166, Acting Chair Lucas remains opposed to those portions of the guidance.

“Biology is not bigotry. Biological sex is real, and it matters,” Lucas said. “Sex is binary (male and female) and immutable. It is not harassment to acknowledge these truths—or to use language like pronouns that flow from these realities, even repeatedly.”

Lifeguard Who Has Religious Objections to Pride Month Has Claim for Undermining of His Religious Accommodation

In Little v. Los Angeles County Fire Department, (CD CA, Jan. 25, 2025), a California federal district court allowed a Fire Department captain assigned to the Lifeguard Division to move ahead on certain of his Free Exercise, Title VII and state anti-discrimination law claims after the Department revoked his previous religious exemption from the County's directive to fly the Progress Pride Flag during LGBTQ+ Pride Month. The suspension of his accommodation was triggered by his removing Pride flags that had been put up in an area to which he was assigned. The court said in part:

Little is an "Evangelical Christian with traditional and orthodox beliefs on marriage, family, and sexual behavior and identity."...

[T]he Fire Department granted Little's accommodation request and agreed that, for the remainder of June, Little would be assigned to facilities that were incapable of flying the Progress Pride Flag due to insufficient flag clasps.... 

Little alleges that his request for a religious accommodation was protected activity, and that Defendants retaliated against Little for seeking that accommodation by suspending him from his role on the Background Investigation Unit....

... [T]he pleading here gives rise to a sufficient "suspicion" of religious animosity to warrant "pause" before dismissing Little's neutrality claim as implausible.... The FAC alleges that Chiefs Boiteux and Lester knew that Little had been granted a religious accommodation and conspired to undermine that accommodation by bringing additional flag poles to the Area 17 sites so that they would be required to fly Progress Pride Flags in time for ,,,Little's scheduled shift there....

However, the court rejected other claims by plaintiff, including his free speech claim, saying in part: 

Because Little has not shown that the speech at issue is anything other than government speech, he has failed to state a viable compelled-speech claim under the First Amendment....

DC Circuit Revives Contempt Proceedings in RFRA Suit Against Fire Department

In Calvert v. Potter, (DC Cir., Jan. 28, 2025), the U.S. Court of Appeals for the D.C. Circuit remanded to the district court a suit by a group of D.C. firefighters who claim that the D.C. Fire Department violated an injunction issued in 2007 vindicating their rights under the Religious Freedom Restoration Act. The injunction required the Department to allow firefighters who wore beards for religious reasons to work in field operations. However, 13 years later the situation became more complex, as the D.C. Circuit explained:

As COVID-19 spread in March 2020, the Department implemented a new facial hair policy and mandated the use of masks during patient contact. The Department transferred the four bearded firefighters it still employed to administrative roles “due to concerns about their ability to properly wear N95 respirators with facial hair.”...

The district court denied the motion for civil contempt.... The court declined to hold the Department in contempt because it “acted in a reasonably cautious way, under unprecedented and extraordinary circumstances, to keep plaintiffs and the public it served as safe as it could.”...

The Court of Appeals rejected the district court's conclusion: 

Good-faith compliance may be relevant to mitigation at the remedies stage, but the court lacks discretion to excuse civil contempt based on the contemnor’s good faith. ... 

The firefighters had a private right to enforcement of the original injunction, which protected their religious freedom and permanently forbade the Department from enforcing the 2005 facial hair policy against them. The district court had no general discretion to excuse civil contempt.... 

Instead, the court was required to determine whether the Department violated the firefighters’ rights under the 2007 injunction.... Even if the Department’s behavior was reasonable in light of the pandemic, good faith and lack of willfulness is not a defense to civil contempt....

First Liberty Institute issued a press release announcing the decision.

Executive Orders Call for Military Reinstatement of Vaccine Objectors, Military Exclusion of Transgender Individuals

Yesterday, President Trump issued an Executive Order titled Reinstating Service Members Discharged Under the Military's Covid-19 Vaccination Mandate (full text). The Order reads in part:

The vaccine mandate was an unfair, overbroad, and completely unnecessary burden on our service members.  Further, the military unjustly discharged those who refused the vaccine, regardless of the years of service given to our Nation, after failing to grant many of them an exemption that they should have received.  Federal Government redress of any wrongful dismissals is overdue.

The Executive Order calls for reinstatement with back pay for those who left the service rather than be vaccinated.  Many service members who refused vaccination did so on religious grounds.

Yesterday, the President also issued an Executive Order titled Prioritizing Military Excellence and Readiness (full text) which ordered the military to revise its Medical Standards for Military Service to exclude transgender individuals from service in the military. The Executive Order reads in part:

Consistent with the military mission and longstanding DoD policy, expressing a false “gender identity” divergent from an individual’s sex cannot satisfy the rigorous standards necessary for military service.  Beyond the hormonal and surgical medical interventions involved, adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.  A man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member....

It is the policy of the United States Government to establish high standards for troop readiness, lethality, cohesion, honesty, humility, uniformity, and integrity.  This policy is inconsistent with the medical, surgical, and mental health constraints on individuals with gender dysphoria.  This policy is also inconsistent with shifting pronoun usage or use of pronouns that inaccurately reflect an individual’s sex.

Quaker Organizations Sue Over New Immigration Enforcement Policy

Yesterday three organizations of Quaker congregations along with two individual congregations filed suit in a Maryland federal district court challenging the Department of Homeland Security's recent change in policy that allows immigration agents to conduct enforcement operations in houses of worship and at religious life-cycle ceremonies.  The complaint (full text) in Philadelphia Yearly Meeting of the Religious Society of Friends v. U.S. Department of Homeland Security, (D MD, filed 1/27/2025), alleges that the policy change violates the Religious Freedom Restoration Act, the 1st Amendment's protection of expressive association and the Administrative Procedure Act.  The complaint alleges in part:

89. A diversity of worshippers is an essential component of the Quaker value of “experience[ing] God in a broader, more encompassing way,” as “one’s life experience affects how one hears the spirit and what conclusions one might draw.”... Deterring immigrants from worshipping in-person with a Quaker meeting would therefore directly interfere with Plaintiffs’ religious exercise by lessening their “ability to hear God and what God is trying to tell [them].” ...

90. Moreover, Plaintiffs’ Quaker beliefs make it essential that they “encourage others for whom [that] path is meaningful to join.”... But DHS’s new policy, by opening meeting houses to immigration-enforcement activities, inhibits Plaintiffs from doing just that.... Knowingly putting a person in harm’s way or subjecting them to the possibility of a violent encounter with an armed law-enforcement officer would violate Quaker beliefs in peace and nonviolence....

91. Quakers have held a religious commitment against violence for hundreds of years.... For many Quakers, “[t]he presence of a weapon in a Quaker meeting would be absolutely unacceptable.”... The presence of armed immigration officers at meeting houses—which the new policy allows—would thus significantly hamper Plaintiffs’ ability to exercise their faith.... Importantly, even the threat of armed government agents at meeting houses—which has existed since the moment DHS announced its new policy—does the same.

Axios reports on the lawsuit.

Trump Takes Actions to Limit Federal Funding of Abortions

On January 24, President Trump issued an Executive Order (full text) titled Enforcing the Hyde Amendment. The Hyde Amendment bars federal funding of elective abortions. The Executive Order revokes two Executive Orders issued by President Biden: Executive Order 14076:  Protecting Access to Reproductive Health Care Services and Executive Order 14079:  Securing Access to Reproductive and Other Healthcare Services. (See prior posting.) President Trump also signed a Presidential Memorandum (full text) reinstating a 2017 Memorandum which enforced the Mexico City Policy -- a policy that has been enforced by Republican Administrations since 1985 and suspended by Democratic Administrations since then. The Policy is described by Wikipedia as follows:

The policy requires non-governmental organizations to "agree as a condition of their receipt of [U.S.] federal funds" that they would "neither perform nor actively promote abortion as a method of family planning in other nations". The policy has exceptions for abortions performed in response to rape, incest, or life-threatening conditions.

The Memorandum also directs the State Department to ensure that federal funds do not go to organizations or programs that support coercive abortion or involuntary sterilization.

The Trump White House issued a Fact Sheet titled President Donald J. Trump Enforces Overwhelmingly Popular Demand to Stop Taxpayer Funding of Abortion describing the President's actions.

Today Is International Holocaust Remembrance Day

As designated by the United Nations, today is International Holocaust Remembrance Day. January 27 was chosen because it is the anniversary of the liberation of the Auschwitz-Birkenau concentration and extermination camps by Soviet troops in 1945. U.N. Secretary General António Guterres issued a Message (full text) today marking the anniversary, saying in part:

Eighty years since the Holocaust’s end, antisemitism is still with us – fuelled by the same lies and loathing that made the Nazi genocide possible. And it is rising. Discrimination is rife...

Hate is being whipped-up the world over… Indisputable historical facts are being distorted, diminished, and denied… And efforts are being made to recast and rehabilitate Nazis and their collaborators. We must stand up to these outrages.

In these days of division – and more than a year since the appalling 7th October terror attacks by Hamas – we must hold fast to our common humanity. We must condemn antisemitism – just as we must condemn all forms of racism, prejudice and religious bigotry. And we must renew our resolve to defend the dignity and human rights of all. Those causes go to the very core of the United Nations. We will never forget – and we will never waver in that fight.

Recent Articles of Interest

From SSRN:

• Cristina Tomuleț, Free Will in the Context of Sexual Offences. Why Is It Different?, (November 21, 2024).
• Kate Redburn, The Equal Right to Exclude: Religious Speech and the Road to 303 Creative LLC v. Elenis, (December 18, 2023).
• Sam Mbago, Peaceful Coexistence: The Undeniable Liberty of Conscience ,(November 14, 2024).
• Hidayatul Ihsan, et. al., Factors Affecting the Motivation of Prospective Waqifs to Endow Insurance in Indonesia, (International Journal of Scientific and Management Research, volume 07, issue 11, 2024).
• Hidayatul Ihsan, et. al., A Digital Transformation in Waqf Management: Leveraging Microsoft Access for Financial Accountability, (International Journal of Scientific and Management Research, volume 07, issue 11, 2024).
• Jane Calderwood Norton, Weighing Benefits and Detriments in the Law of Charity, (March 16, 2021).
• Jane Calderwood Norton & Matthew Harding, Charities and politics: where did we go wrong?, (Legal Studies, volume 44, issue 4, 2024).
• Jeffrey A. Van Detta, Heresies, Heretics, and Hermeneutics: The Battle of Textualism Against Pragmatism-And Itself-On the Roberts Court, (Belmont University College of Law Research Paper No. 2024-15).
• Steven Douglas Smith, Jurisdictional Diversity, Tradition, and the Religion Clauses, (San Diego Legal Studies Paper No. 25-003 (2025).

From SSRN (Abortion rights):

• Kelsey Perault, A Woman's Right To Change Her Mind: The Abortion Pill Reversal Debate, (Belmont University College of Law Research Paper No. 2024-19).
• Lawrence Rosenthal, Closing the Remedial Gap After Whole Woman's Health, (December 03, 2024).
• Jonathan F. Will, Embryonic Children, Double Effect, and the Regulation of Reproductive Technologies, (January 13, 2025).
• Zanita E. Fenton, (Re)Birth of a Nation: Reconstruction's Unfinished Business, (October 24, 2024).

From SSRN (Religious doctrines):

• Hershey H. Friedman, From Battlefield to Torah: The Military Prowess of Biblical Heroes, (December 20, 2024).
• Hershey H. Friedman, When Heaven Speaks: The Bath Kol as a Bridge to the Divine, (November 30, 2024).
• Ratna Kapur, TWAIL and Religion, (forthcoming in Research Handbook on Third World Approaches to International Law, Anghie, A.T, Chimni, B.S., Fakhri, M. Nesiah, V., Mickelson, K. , Edward Elgar Publishing Ltd., 2025).
• Jeffrey A. Pojanowski, St. John Henry Newman's Development of Doctrine and Law: Some Preliminary Notes and Questions, (2024 Harvard Journal of Law and Public Policy: Per Curiam 36).

From SmartCILP:

•  Emily Kazyak, Kelsy Burke, Maia Behrendt & Marissa Oliver, Religious Exemption, LGBT Rights, and the Social Construction of Harm and Freedom, 49 Law & Social Inquiry 980-1003 (2024).
• Anthony E. Varona, Michele Alexandre, Michael J. Kaufman & Madeleine M. Landrieu, Panel: Religious Freedom and Diversity Missions: Insights from Jesuit Law Deans, 47 Seattle University Law Review 1427-1442 (2024).

Pardons and Policy Changes Limit Use of FACE Act Against Abortion Protesters

On Thursday, President Trump granted full and unconditional pardons to 23 defendants who were convicted of violations of the Freedom of Access to Clinic Entrances Act. (Full text of Pardon document.) The pardons which were issued a day before the annual January 24 March for Life in Washington D.C. cover defendants in five separate cases: United States v. Handy (blockade of a Washington, D.C. abortion clinic); United States v. Gallagher (barricading of a clinic in Mt. Juliet, Tennessee); United States v. Zastrow, (blockading of abortion clinics in Sterling Heights and Saginaw, Michigan); United States v. Williams (Blocking entrance to Manhattan Planned Parenthood Clinic); United States v. Moscinski (blocking access to Hempstead, N.Y. Planned Parenthood Clinic). AP reports on the pardons.

The Trump Administration also took steps to limit future prosecutions under the Freedom of Access to Clinic Entrances Act.  AP reports that a memo sent by the Attorney General's Chief of Staff, Chad Mizelle, to the head of the Civil Rights Division orders dismissal of three pending cases growing out of 2021 clinic blockades in Tennessee, Pennsylvania and Ohio. The memo also says that future prosecutions or civil actions under FACE Act will only be permitted in extraordinary circumstances or in cases presenting significant aggravating factors. Mizelle called prosecutions against anti-abortion protesters a weaponization of law enforcement because few prosecutions were brought against attacks on crisis pregnancy centers and other pro-life organizations.

Supreme Court Grants Cert. In Oklahoma Publicly-Funded Catholic Charter School Case

The U.S. Supreme Court yesterday granted review in Oklahoma Virtual Charter School Board v. Drummond, (Docket No. 24-394, certiorari granted 1/24/2025) (Certiorari petition.)  It also granted review in St. Isidore of Seville Virtual Charter School v. Drummond, (Docket No. 24-396, certiorari granted 1/24/2025), which was a separate petition filed by and Intervenor in the same case. (Order List.) The petitions were consolidated for oral argument. In the cases, the Oklahoma Supreme Court held that the state Charter School Board's authorization of a Catholic-sponsored publicly-funded charter school violates Oklahoma statutes, the Oklahoma Constitution and the First Amendment's Establishment Clause. (See prior posting.) The petitions for review contend that exclusion of religious schools from the state's charter school program violates the 1st Amendment's free exercise clause despite Establishment Clause concerns, and that religious instruction by a state-funded charter school does not constitute state action. Links to filings in the cases and other materials can be found at the SCOTUSblog case pages here and here. Politico and NBC News report on the Court's action.

5th Circuit Hears Arguments on Louisiana Requirement for Classroom Posting of Ten Commandments

Yesterday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Roake v. Brumley. (Audio of full oral arguments.) In the case, a Louisiana federal district court held that Louisiana House Bill 71 that requires a copy of the Ten Commandments to be posted in every public-school classroom in the state is facially unconstitutional and unconstitutional in all applications. (See prior posting.) Courthouse News Service reports extensively on the oral arguments.

DOJ Civil Rights Division Freezes New Initiatives

The Washington Post yesterday reported that the Justice Department's new Chief of Staff has sent a memo to Kathleen Wolf, the new supervisor of the Civil Rights Division, freezing temporarily any new actions by attorneys in the Division.  The length of the freeze is unclear. The memo says that Civil Rights Division attorneys should not file any new complaints, motions to intervene, agreed-upon remands, amicus briefs, or statements of interest during the freeze. It explains that the freeze was imposed in order to be “consistent with the Department’s goal of ensuring that the Federal Government speaks with one voice in its view of the law and to ensure that the President’s appointees or designees have the opportunity to decide whether to initiate any new cases.”  Movement in pending cases already filed will be determined by the judge assigned to each case. Among the cases handled by the Civil Rights Division are those alleging religious discrimination in violation of federal civil rights laws.

7th Circuit Hears Arguments on Accommodating Teacher Who Objects to Using Students' Preferred Names and Pronouns

Yesterday the U.S. 7th Circuit Court of Appeals heard oral arguments in Kluge v. Brownsburg Community School Corporation. (Audio of full oral arguments.) In the case, an Indiana federal district court dismissed an orchestra teacher's Title VII claim that the school had failed to reasonably accommodate his religious objections to referring to transgender students by their preferred names and pronouns. The district court agreed with the school's rejection of using only students' last names as an accommodation. (See prior posting.) ADF, the teacher's counsel, issued a press release ahead of yesterday's arguments.

Kansas Court Says Statute Sets Low Threshold for Religious Exemption from Covid Vaccine Mandate

In St. Luke's Health System, Inc. v. State of Kansas ex rel. Schultz, (KS App., Jan. 17, 2025), a Kansas state appeals court held that under a Kansas statute, an employee's request for a religious exemption from an employer's Covid vaccine mandate does not require as much proof as the trial court in the case demanded.  The appeals court said in part:

The statute does not require the employee to articulate a basis for their sincerely held religious beliefs, nor does it require the employee to provide written evidence of those religious beliefs, as the district court held Glean was required to do. It only requires the employee to explain in a written statement that complying with a COVID-19 vaccine mandate would violate their sincerely held religious beliefs, which Glean did. K.S.A. 2023 Supp. 44-663(a). And, in fact, the statute specifies:  "An employer shall grant an exemption requested in accordance with this section based on sincerely held religious beliefs without inquiring into the sincerity of the request." K.S.A. 2023 Supp. 44-663(b)....

Not only did she [employee Sheryl Glean] explain that her refusal to get the COVID-19 vaccine is based on her religious views—as in she believes the vaccine may cause harm to her body—she clarified the religious basis for her concern (or why she believes getting the vaccine would be wrong) when she said since she became a Christian she believes the Bible tells her that her body is holy. See 1 Corinthians 6:19-20..... Glean further evidenced the religiosity of her beliefs when she stated that she had discussed her concerns about getting the vaccine with the pastor from her church. Glean's invocation of both the Bible and her pastor as sources of guidance in this matter evidence the religiosity of her beliefs about the COVID-19 vaccine.

Negligence Claim Against Army Chaplain Barred by Ecclesiastical Abstention Doctrine

In Winder v. United States, (ND TX, Jan. 17, 2025), a Texas federal district court held that the ecclesiastical abstention doctrine requires dismissal of a negligence lawsuit filed under the Federal Tort Claims Act growing out of advice given by an Army Chaplain.  The Chaplain was consulted by Latrisha Winder, an Army National Guard member, about her husband's suicide threat which her husband conveyed by phone to her from Texas while she was in Virginia. The Chaplain advised Winder to have local law enforcement conduct a welfare check. When Ms. Winder objected, the Chaplain threatened to call local law enforcement himself if she did not.  This led Ms. Winder to call law enforcement. The welfare check led to a confrontation and to the fatal shooting of Winder's husband by a sheriff's deputy conducting the check. The court said in part:

Contrary to Plaintiffs' argument, this action is not "simply a civil dispute in which a religious official happens to be involved." Based on the Complaint's allegations and its reference to Army regulations and training materials, Plaintiffs have failed to allege facts showing that this action "entails[] no inquiry into [the Chaplain's] religious doctrine."...

Plaintiffs argue the Chaplain threatened to breach his duty of confidentiality by telling Latrisha "he would call law enforcement if she did not call," which they contend "is wholly secular and a neutral principle that the Court can apply without inquiring into and applying [the Chaplain's] religious training, faith, and beliefs."...

The existence of this tension—whether the Chaplain's duty of confidentiality is religious or secular in nature—is precisely why free exercise principles mandate the Court abstain from adjudication here. Indeed, "[i]t is a core tenet of First Amendment jurisprudence that, in resolving civil claims, courts must be careful not to intrude upon internal matters of" religious doctrine.... It is not for the Court to adjudicate, or even question, the Chaplain's duty of confidentiality, given that Plaintiffs have admitted, and Army regulations make clear, there is a religious component to this inquiry.

9th Circuit: Hindu Out-of-Stater Lacks Standing to Challenge Ban on Caste Discrimination

In Bagal v. Sawant, (9th Cir., Jan. 21, 2025), the U.S. 9th Circuit Court of Appeals held that a practicing Hindu who lives in North Carolina lacks standing to challenge a Seattle, Washington Anti-Caste Discrimination Ordinance. The court said in part:

Appellant argues that the Ordinance violates the Free Exercise and Establishment Clauses of the First Amendment and the Equal Protection and Due Process Clauses of the Fourteenth Amendment....

Appellant speculates that the Ordinance could be enforced against him on a future visit to Seattle for ordering a vegetarian meal or wearing a religious marker called a Mauli thread on his wrist.  But these activities are not prohibited by the Ordinance, and Appellant fails to demonstrate that engaging in them would subject him to a credible threat of prosecution....

Appellant argues that the Ordinance creates stigma toward the Hindu religion, which amounts to disapproval of Hinduism over other religions and causes Appellant to refrain from certain Hindu practices.... Appellant has offered no plausible connection between his decision to refrain from engaging in certain Hindu practices in North Carolina and a Seattle Ordinance that prohibits none of those activities....

Appellant has also not demonstrated that he has a geographical connection to the Ordinance sufficient for standing for an Establishment Clause claim. 

1st Circuit Accepts Employer's Undue Hardship Defense for Denying Religious Exemption from Covid Vaccination

In Rodrique v. Hearst Communications, Inc., (1st Cir., Jan. 17, 2025), the U.S. 1st Circuit Court of Appeals upheld the dismissal of a Title VII lawsuit brought by a TV news photographer who asserted religious objections to his employer's Covid vaccine mandate. The employer refused to provide an accommodation, asserting that it would impose an undue hardship. The district court dismissed plaintiff's claim on the ground that his objection was not religious but instead reflected "a personal medical judgment about the necessity of COVID-19 vaccination" expressed in religious language. On appeal, the 1st Circuit held that it did not have to reach the issue of whether plaintiff's objections were religious because defendant had adequately carried its undue hardship defense. The court said in part:

Rodrique contends that Hearst has not proffered admissible evidence showing that the vaccine actually protects against the transmission of COVID-19.  As Rodrique frames the issue, if the vaccine does not reduce the likelihood of COVID-19 transmission -- as opposed to merely mitigating symptoms, for example -- then Hearst suffers no undue hardship by granting him an exemption.  And in Rodrique's view, only expert testimony can support this conclusion.,,,  

,,, [W]e disagree with Rodrique that Hearst did not provide legally sufficient evidence....  Because ... Hearst relied "on the objective, scientific information available to [it]," with particular attention to "the views of public health authorities," we hold that it acted reasonably when it determined that vaccinated employees are less likely to transmit COVID-19 than unvaccinated employees.

Business Insurance reports on the decision.

Harvard Settles Suit Charging Antisemitism in Violation of Title VI

The Brandeis Center for Human Rights Under Law issued a press release yesterday announcing that a settlement agreement has been reached in a suit filed last May against Harvard University charging Harvard with tolerating antisemitic bullying, harassment, and discrimination aimed at Jewish and Israeli students in violations of Title VI of the 1964 Civil Rights Act. An email from Harvard Hillel summarizes the settlement:

Adoption of the IHRA definition of antisemitism for purposes of discipline;

Explicitly recognizing Zionism as a protected category under the university’s non-discrimination policy;

A dedicated position for antisemitism complaints and reporting;

Annual public reporting on antisemitism-related cases and their outcomes for at least five years (including retrospective to October 1, 2023);

Mandatory outside training for staff reviewing antisemitism complaints;

Expanded academic programming on anti-Semitism;

Partnerships with an Israeli University and with the Brandeis Center.

Trump Executive Order Reverses Agency Policies Protecting Transgender Individuals

Yesterday President Trump signed an Executive Order titled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (full text). The Executive Order seeks to eliminate the recognition of transgender individuals in federal agency policies interpreting antidiscrimination provisions.  The lengthy Executive Order provides in part:

Across the country, ideologues who deny the biological reality of sex have increasingly used legal and other socially coercive means to permit men to self-identify as women and gain access to intimate single-sex spaces and activities designed for women, from women’s domestic abuse shelters to women’s workplace showers.  This is wrong.  Efforts to eradicate the biological reality of sex fundamentally attack women by depriving them of their dignity, safety, and well-being.  The erasure of sex in language and policy has a corrosive impact not just on women but on the validity of the entire American system.  Basing Federal policy on truth is critical to scientific inquiry, public safety, morale, and trust in government itself.

This unhealthy road is paved by an ongoing and purposeful attack against the ordinary and longstanding use and understanding of biological and scientific terms, replacing the immutable biological reality of sex with an internal, fluid, and subjective sense of self unmoored from biological facts.  Invalidating the true and biological category of “woman” improperly transforms laws and policies designed to protect sex-based opportunities into laws and policies that undermine them, replacing longstanding, cherished legal rights and values with an identity-based, inchoate social concept....

It is the policy of the United States to recognize two sexes, male and female.  These sexes are not changeable and are grounded in fundamental and incontrovertible reality....

Agencies shall remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages....

 The prior Administration argued that the Supreme Court’s decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act.  This position is legally untenable and has harmed women.  The Attorney General shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities....

School's Transgender Policy Does Not Violate Teacher's 1st Amendment Rights

In Polk v. Montgomery County Public Schools, (D MD, Jan. 17, 2025), a public-school substitute teacher alleged that a Maryland school system violated her free exercise and free speech rights when it insisted that she affirm Guidelines on dealing with transgender students. The Guidelines required her to refer to students by their preferred pronouns and barred them from discussing a student's gender identity with the student's parents without the student's consent. Plaintiff insisted that the Guidelines conflict with her religious beliefs. She also contended that under Title VII she is entitled to a reasonable accommodation of her beliefs. The court dismissed plaintiff's free exercise claim, finding that the Guidelines are neutral and generally applicable. It dismissed her free speech claim because the speech required by the Guidelines are part of plaintiff's official duties as a teacher. The court however, while refusing to issue a preliminary injunction, permitted plaintiff to move ahead on her Title VII failure to accommodate claim against the school board saying that the Board's undue hardship defense should be raised at the summary judgement stage of the proceedings rather than on a motion to dismiss.

Suit Challenges Wisconsin Tax Exemption as Violation of State Constitution's Ban on Preference to Religious Establishments

Suit was filed last week in a Wisconsin state trial court by the Freedom from Religion Foundation and three individual property owners challenging a Wisconsin property tax exemption tailored to only benefit two apartment buildings serving students at the University of Wisconsin-Madison. The buildings are owned by the Presbyterian Student Center Foundation and by a Catholic parish. The complaint (full text) in Gaylor v. City of Madison, (WI Cir. Ct., filed 1/14/2025), alleges that the exemption violates the equal protection and uniformity clauses of the Wisconsin state constitution, the state constitution's provision on private bills and the prohibition in Article I, section 18 of the Wisconsin Constitution which prohibits legislation that gives a preference to any religious establishment or mode of worship. Christian Post reports on the lawsuit.

Trump Designates New Acting Chair of EEOC

In one of the first actions taken after he was sworn in as President, Donald Trump designated new Chairmen and Acting Chairmen of 15 federal agencies. Among these was the designation of EEOC Commissioner Andrea R. Lucas to be Acting Chair of the Equal Employment Opportunity Commission. She replaces Charlotte A. Burrows who will remain a member of the Commission. The EEOC adjudicates claims of employment discrimination, including religious discrimination in employment.

6 Clergy Will Offer Prayers at Trump Inauguration Today

Donald Trump's inauguration as President begins at 11:30 AM Eastern Time today. The ceremony includes prayers offered by clergy from a variety of faiths. According to CBS News, opening invocations will be delivered by Timothy Cardinal Dolan, the Archbishop of New York and Christian evangelist Rev. Franklin Graham.

The ceremony will conclude with benedictions offered by four clergymen: Rabbi Dr. Ari Berman, president of Yeshiva University; Imam Husham Al-Husainy, a founder of the Dearborn, Michigan Karbalaa Islamic Education Center;  Pastor Lorenzo Sewell of 180 Church in Detroit, Michigan; and the Rev. Father Frank Mann of the Roman Catholic Diocese of Brooklyn, New York.

The inauguration ceremony will be streamed live by numerous news organizations, including PBS News livestream beginning at 10:30 AM Eastern Time.

Suit Challenges Federal Agency Rule Changes Protecting Against Gender Identity Discrimination

Suit was filed last week in a Louisiana federal district court challenging rule changes interpreting five federal statutes. Defendants are HHS, Department of Agriculture, EEOC and the Department of Justice. The rule changes define sex discrimination and sexual harassment as including discrimination or harassment on the basis of gender identity and define gender dysphoria as a disability. The complaint (full text) in Rapides Parish School Board v. U.S. Department of Health and Human Services, (WD LA, filed 1/17/2025), contends that the rule provisions are not authorized by the various statutes being implemented, are arbitrary and capricious and violate the Spending Clause of the Constitution. It also alleges that various of the rule provisions compel speech in violation of the First Amendment and are unconstitutionally vague. ADF issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

 From SSRN:

• Evangelos Venizelos, Religious Freedom for Muslims: A Challenge to the Historical Foundations and Resilience of European Constitutionalism, (June 15, 2023).
• Gader Wren, A Continued Sign of the Court’s Unwillingness to Overrule Smith, 7 Nev. L.J. Forum (2023).
• Gader Wren, The Establishment Clause: No Longer a Lemon, (100 U. Det. Mercy L. Rev. Online 1 (2023)).
• Gader Wren, Dobbs: A Powerful Opinion with Discrete Weaknesses, (Idaho Law Review Spotlight, Vol. 2 (2023), Iss. 1, Art. 2).
• Kate Redburn, The Equal Right to Exclude: Religious Speech and the Road to 303 Creative LLC v. Elenis, (December 18, 2023).
• Natasha Bakht & Lynda Margaret Collins, Notwithstanding the Notwithstanding Clause: A Case for Constitutional Guardrails on Section 33 of the Charter of Rights and Freedoms, (November 21, 2024).
• Carl H. Esbeck, Church Autonomy, Textualism, and Originalism: SCOTUS's Use of History to Give Definition to Church Autonomy Doctrine, (108 Marquette Law Review (forthcoming 2025)).
• Mark Storslee, History and the School Prayer Cases, (110 Va. L. Rev. 1619 (2024)).
• John Witte, Table Talks on Law & Religion, Canopy Forum, 2024 (forthcoming).
• John Witte, “Foreword,” to Walters-Sleyon, The Rush for Black Diamonds, (forthcoming).
• Jeffrey A. Van Detta, Heresies, Heretics, and Hermeneutics: The Battle of Textualism Against Pragmatism-And Itself-On the Roberts Court, (Belmont University College of Law Research Paper No. 2024-15).

From SSRN (Christian, Jewish, Buddhist and Islamic Law):

• Amit Kumar Ghosh, Tantric Union of Male and Female in Vajrayana, (November 25, 2024).
• Haseeb Fatima Saikhu, Inheritance Rights of Orphaned Grandchildren under Section 4 of Muslim Family Law Ordinance, 1961 and its Alternative Solutions, (Law and Policy Review, Volume 3, No. 2, Pp.21–42 (2024).
• Christopher Hampson, The Spirit of Jubilee, (University of Florida Levin College of Law Research Paper Forthcoming).
• John Witte, The Oxford Handbook of Christianity and Law, (Canopy Forum, 2024).
• Johari, et. al., The Role of Temporary Waqf in Improving the Social Welfare of the Muslim Community (November 26, 2024).
• Ihsan, Hidayatul Ihsan, et. al., Factors Affecting the Motivation of Prospective Waqifs to Endow Insurance in Indonesia, (International Journal of Scientific and Management Research, volume 07, issue 11, 2024).
• Hidayatul Ihsan, Firman Surya, Eliyanora & Nurul Hafizah, A Digital Transformation in Waqf Management: Leveraging Microsoft Access for Financial Accountability, (International Journal of Scientific and Management Research, volume 07, issue 11, 2024).

National Guard Officer Sues After Dismissal for His Religion-Based Anti-LGBTQ Views

Suit was filed last week in an Idaho federal district court by an Idaho National Guard officer who was removed from a command position that he had just assumed because of his Christian religious views on sexuality that he had expressed during his previous campaigns for mayor and state senator. The complaint (full text) in Worley v. Little, (D ID, filed 1/17/2025), reads in part:

74. The Investigating Officer stated, in his findings, that Major Worley had “well documented discriminatory views against the LGBTQ community” that “suggest an inability to uphold the values of equality, respect, and impartiality expected of a company commander.”...

75.... In addition to his unconstitutional and unconscionable findings as it relates to Major Worley’s religious beliefs, views, expression, and exercise, the Investigating Officer also recommended to Defendants that they institute a “No Christians in Command” Policy. ...

The complaint alleges that this violates plaintiff's free speech, free exercise and equal protection rights.

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

Cert. Granted on Whether Opt-Out is Required When Parent Objects on Religious Grounds to Public School Curricular Material

Yesterday the U.S. Supreme Court granted review in Mahmoud v. Taylor, (Docket No. 24-297, certiorari granted 1/17/2025). (Order List.) The question presented to the Court in the Petition for Certiorari is:

Do public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out?

In the case, the Montgomery County, Maryland Board of Education adopted certain LGBTQ-Inclusive Books as part of a larger array of books for use by English Language Arts teachers. An initial arrangement allowing parents to opt their children out of exposure to these books was ended by the Board.

The U.S. 4th Circuit Court of Appeals in a 2-1 decision held that a free exercise violation occurs only when there is some sort of direct or indirect pressure to change religious beliefs or conduct, and that mere presence in the classroom when these materials may be read does not create that kind of coercion. (See prior posting.) 

CBS News reports on the Court's action.

United Nations Releases Plan to Respond to Antisemitism

Today the High Representative for the United Nations Alliance of Civilizations announced the launch of the United Nations Action Plan to Enhance Monitoring and Response to Antisemitism. The Action Plan (full text) sets out a list of steps that the United Nations itself should take to combat antisemitism.  It also sets out recommendations to governments, international organization and non-state actors. The 22-page Plan says in part:

Antisemitism is a global challenge that requires a coordinated global response. The United Nations cannot stamp-out the scourge of antisemitism and other forms of discrimination and bigotry alone. State and non-state actors including civil society organizations, faith actors, social media companies, educators and many others, each have a role to play. In an interconnected world, where hate respects no borders, transnational cooperation can identify threats, raise awareness, broaden the use of best practices, and more effectively and proactively coordinate responses.

2 Reports Survey the State of Religious Liberty in the U.S. in 2024

Two broad reviews of the state of religious liberty in the United States were released yesterday. Becket Fund for Religious Liberty released the 6th edition of its Religious Freedom Index: American Perspectives on the First Amendment (full text). The 119-page report is based on an online poll of a nationally representative sample of 1000 American adults conducted by an independent research company. The report says in part:

The survey consists of 21 annually repeating questions that cover a broad range of topics, from the rights of religious people to practice their respective faiths to the role of government in protecting religious beliefs. The responses to these questions are broken down into six dimensions: 1) Religious Pluralism, 2) Religion and Policy, 3) Religious Sharing, 4) Religion in Society, 5) Church and State, and 6) Religion in Action....

 Across multiple questions in our Index, one message rings loud and clear: Americans deeply value their First Amendment freedoms, even in the face of tough, controversial issues....

We are pleased to report that political division did not seem to negatively impact Americans’ convictions about the importance of religion and religious liberty....  Americans also report being more accepting of people of faith and more appreciative of their contributions than ever before. Encouragingly, both people of faith as a whole and non-Christian people of faith reported feeling more accepted in society than in 2023.

The U.S. Conference of Catholic Bishops yesterday released its 2025 annual report on The State of Religious Liberty in the United States (full text) (Executive Summary). The 83-page Report, which reviews developments at the national level in 2024 in Congress, the Courts and the Executive Branch, says in part:

... [B]ecause control of the two chambers of Congress was divided, most bills that threatened religious liberty—that is to say, immunity from coercion in religious matters—did not move forward. Legislation aiming to increase access to in vitro fertilization (IVF) was introduced in 2024. The most significant threats to religious liberty at the federal level came in the form of finalized regulations by federal agencies, such as the Section 1557 rule, which implements the nondiscrimination provision of the Affordable Care Act (ACA). These rules heavily focused on imposing requirements regarding abortion, sexual orientation, and gender identity....

The five areas of critical concern—threats and opportunities—for religious liberty are:

• The targeting of faith-based immigration service

• The persistence of elevated levels of antisemitic incidents 

• IVF mandates, which represent a significant threat to religious freedom, while the national discussion of IVF represents an opportunity for Catholics to share Church teaching and advocate for human dignity

• The scaling back of gender ideology in law

•  Parental choice in education, one of the longest-running areas of concern for American Catholics

Court Dismisses Some Challenges To ED Rule Protecting Student Religious Organizations

In Secular Student Alliance v. U.S. Department of Education, (D DC, Jan. 15, 2025), plaintiffs challenged a rule promulgated by the Department of Education in 2020. The rule prohibits universities receiving Education Department grants from denying any student religious organization any right, benefit or privilege available to secular groups because of the religious organization's "beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs." The D.C. federal district court dismissed two of plaintiff's claims: that the rule was ultra vires agency action and that it was in excess of the agency's statutory authority under the Administrative Procedure Act. The court held that a "sense of Congress" provision in 20 USC §1011a which says that no college student should be excluded from participation in any activity because of the student's protected speech or association, does not impose a limitation on the Department's rulemaking. The court said that the phrase is "a suggestive guideline, rather than a mandatory limitation...." The court left open to still be decided "whether the Rule is arbitrary and capricious, an abuse of the agency discretion, or otherwise not in accordance with law...." ADF issued a press release commenting on the decision.

Today Is Religious Freedom Day

President Biden has issued a Proclamation (full text) declaring today as Religious Freedom Day, the anniversary of the adoption by Virginia in 1786 of the Statute of Religious Freedom. The President's Proclamation reads in part:

We are all blessed to live in a Nation that is home to people of many faiths.  However, even in our land of liberty, too many people are afraid that practicing their faith will bring fear, violence, and intimidation.  Over the past year, we have seen a shocking rise in antisemitism in the wake of Hamas’s terrorist attack against Israel and a disturbing rise in Islamophobia.  Hate has no safe harbor here in America.  And around the world, minority communities continue to live in fear of violence and are denied equal protections under the law, including Christians in some countries.

My Administration is committed to ensuring that people of every faith and belief can live out their deepest conviction freely, peacefully, and safely....

Today, we recognize how religious freedom is at the core of who we are as a Nation. It is central to the freedom we offer all Americans. And it is threaded throughout all our work to advance human freedom and dignity in the world.

Secretary of State Anthony Blinken also issued a Statement (full text) marking the occasion, saying in part:

The United States’s dedication to the freedom of religion or belief continues uninterrupted.  Over the past four years, the United States has worked tirelessly to secure this right for everyone around the world.  These efforts include: documenting religious freedom conditions in every country....; declaring the actions of members of the Burmese military against Rohingya to be genocide and crimes against humanity; expanding to over 40 countries the International Freedom of Religion or Belief Alliance....

The United States has also expanded diplomatic efforts to advance freedom of religion or belief through the UN, the Article 18 Alliance, the International Contact Group, and in close coordination with partner countries.  These efforts helped secure the release of religious prisoners of conscience in Nicaragua, the People’s Republic of China, Nigeria, Iran, Somalia, Vietnam, and elsewhere around the world.

Christian Employers Sue EEOC Over Transgender Rights and Abortion Mandate

Suit was filed yesterday in a North Dakota federal district court challenging two EEOC actions. The complaint (full text) in Christian Employers Alliance v. U.S. Equal Employment Opportunity Commission, (D ND, filed 1/15/2025) alleges in part:

First, the Equal Employment Opportunity Commission (EEOC) has improperly applied Title VII of the Civil Rights Act of 1964 to force employers to affirm and accommodate employees’ gender-transition efforts.... This mandate, published in agency “guidance” and on its website, threatens employers with large penalties if they do not use employees’ self-selected pronouns based on gender identity, and if they do not allow males to access female single-sex restrooms, locker rooms, and lactation rooms.

Second, EEOC issued a final rule that twists the Pregnant Workers Fairness Act (PWFA).... , a statute intended to protect pregnant mothers in the workplace, to impose a nationwide abortion mandate forcing employers to promote and facilitate elective abortion....

The suit alleges that these mandates from the EEOC violate the free exercise and free speech rights of members of the Christian Employers Alliance.

Texas Supreme Court Hears Arguments on State Closure of Catholic Agency Serving Migrants

On January 13, the Texas Supreme Court heard oral arguments (video of full oral arguments) in Paxton v. Annunciation House, Inc. (Links to documents and briefs in the case.) At issue is an attempt by the Texas Attorney General to shut down Annunciation House, a Catholic agency serving migrants and refugees in El Paso. The Attorney General claims that the agency is sheltering migrants who have entered the country illegally. A Texas state trial court held that Texas statutes which bar harboring migrants to induce them to stay illegally in the U.S. are pre-empted by federal law and cannot be used as the basis for a quo warranto action to revoke the agency's registration to operate in Texas. Also at issue is the state's subpoena for records of Annunciation House. (See prior posting.) Annunciation House contends that the attempt to close it down violates the Texas Religious Freedom Restoration Act. Reform Austin reports on the oral arguments.

No Qualified Immunity Defense to RFRA Claim Is Available

In Swanson v. Flores, (SD CA, Jan. 6, 2025), a California federal district court refused to dismiss a suit for damages brought under the Religious Freedom Restoration Act by plaintiff who was a civilian employee of the Marine Corps against her former supervisor. She contends that defendant first ordered her to stop her faith-based discussions with coworkers in her office. Subsequently he ordered her to remove a Bible and religious calendar that she kept on her desk. Plaintiff contends that she maintains her religious beliefs by sharing them with others who have similar religious views and that these orders substantially burdened her ability to practice her sincerely held religious beliefs. The court held that plaintiff sufficiently stated a claim for relief.

The court also rejected defendant's claim of qualified immunity, saying in part:

With no binding authority, this Court finds that the only RFRA defense Congress intended is that stated in the statute, i.e., the defense that the government was acting to further a compelling interest and was doing so by the least restrictive means.

Brooklyn Yeshivahs File Title VI Complaint with U.S. Department of Education

Four Orthodox Jewish yeshivah elementary schools in Brooklyn, New York, have filed a complaint (full text) with the U.S. Department of Education Office of Civil Rights contending that New York City and state Education Departments are discriminating against them in violation of Title VI of the 1964 Civil Rights Act. The complaint (filed Jan. 13) alleges in part:

In 2022, New York adopted regulations that require private schools to undergo “substantial equivalency” reviews. Those reviews are now being used as cover to discriminate against Complainants. Specifically, New York is engaged in the following unlawful conduct: 

Targeting Jewish Studies curricula for disfavored and discriminatory treatment;

Prohibiting Yeshivas from providing dual-language instruction;

Forcing Yeshivas to require students to read texts from reading lists it approves;

Interfering with Yeshivas’ constitutional autonomy to select their faculty;

Refusing to respect cultural and religious classroom norms of the Yeshivas. 

To be clear, Complainants are not challenging the 2022 regulations here.  None of New York’s discriminatory practices and conduct is condoned by those regulations, let alone required by them.  Rather, New York is using the leverage it thinks it has as a result of conducting those reviews to impose its secular views on these Jewish schools. When the nanny state and the secular state converge, it is no surprise that government finds no value in Jewish education and no regard for the educational choices that parents make for their children.

Jewish News Syndicate reports on the complaint.

9th Circuit: Police Department's LGBTQ Outreach Was Government Speech That Did Not Violate 1st Amendment

In Sangervasi v. City of San Jose, (9th Cir., Jan. 14, 2025), the U.S. 9th Circuit Court of Appeals affirmed a California federal district court's denial of a preliminary injunction sought by a police officer who objected to the police department's authorizing officers to wear an LGBTQ Pride uniform patch and to the raising of a Pride flag at police headquarters.  Plaintiff wanted to create other uniform patches and flag designs featuring Christian or anti-LGBTQ themes. His proposal was denied and he was placed on indefinite administrative leave. He sued, claiming violation of his equal protection, free speech and free exercise rights. The court said in part:

The district court properly dismissed Sangervasi’s free speech and free exercise claims because Defendants were engaging in government speech and Sangervasi was speaking as a government employee....  The district court properly dismissed Sangervasi’s equal protection claims because he failed to allege facts demonstrating a discriminatory intent.

Suit Challenges State Grant to Catholic College

Suit was filed this week in a West Virginia state trial court challenging a $5 million grant made by the West Virginia Water Development Authority to a Catholic college located in Ohio just across the Ohio River from West Virginia. The grant largely supports projected projects in West Virginia or the education of West Virginia students. The suit alleges that the grant violates the West Virginia state constitution's Establishment Clause.  The complaint (full text) in American Humanist Association v. West Virginia Water Development Authority, (WV Cir. Ct., filed 1/13/2025), alleges in part:

28.  Through the awarding of this grant, the State of West Virginia, through the West Virginia Water Development Authority, requires taxpayers to fund the work of this Catholic Institution, which states “the mission of St. Joseph the Worker is to serve the Church and to serve our country through providing our society with such workers.” 

29.   In so doing, the State of West Virginia has impermissibly violated the anti-establishment provision of the State Constitution guaranteeing the right to freedom of religion. 

ACLU of West Virginia issued a press release announcing the filing of the lawsuit.

Biden Awards Medal of Freedom with Distinction to Pope Francis

Last Saturday, the White House announced that President Biden has awarded the Presidential Medal of Freedom with Distinction to Pope Francis. The Citation reads:

As a young man, Jorge Bergoglio sought a career in science before faith led him to a life with the Jesuits. For decades, he served the voiceless and vulnerable across Argentina. As Pope Francis, his mission of serving the poor has never ceased. A loving pastor, he joyfully answers children’s questions about God. A challenging teacher, he commands us to fight for peace and protect the planet. A welcoming leader, he reaches out to different faiths. The first pope from the Southern Hemisphere, Pope Francis is unlike any who came before. Above all, he is the People’s Pope – a light of faith, hope, and love that shines brightly across the world.

Earlier this month, Biden awarded the Medal of Freedom to 19 other individuals at a White House ceremony. The award to Pope Francis is the first time that President Biden has awarded the medal "with Distinction".  CBS News, reporting on the award, said in part:

Mr. Biden was scheduled to travel to Rome this weekend and present the medal to Francis in person, but he canceled what would have been his final overseas trip as president so he could monitor the wildfires in California.

Catholic Doctors Sue HHS Over Interpretation of EMTALA's Impact on State Abortion Bans

Suit was filed last week in a Tennessee federal district court by an organization of Catholic physicians challenging a July 2022 Memorandum and accompanying Letter from the Department of Health and Human Services that stated that the Emergency Medical Treatment and Active Labor Act pre-empts state abortion bans when an abortion is needed for emergency care. The complaint (full text) in Catholic Medical Association v. U.S. Department of Health and Human Services, (MD TN, filed 1/10/2025) alleges in part:

2. The Memorandum and Letter ... exceed Defendants’ statutory authority, were promulgated without procedure required by law, and are arbitrary and capricious, all in violation of the Administrative Procedure Act (APA). The Mandate also violates the rights of doctors under the Religious Freedom Restoration Act (RFRA) and the First Amendment....

169. CMA’s members exercise their religious beliefs in practicing medicine by caring for patients generally, and in caring for patients in situations subject to EMTALA. CMA’s members exercise their religious beliefs in treating pregnant women and their unborn children with respect and dignity, and in opposing involvement in the direct and intentional killing of unborn children in abortion. 

170. The Mandate substantially burdens the exercise of CMA’s members’ sincerely held religious beliefs. 

171. The Mandate imposes significant pressure on CMA’s members to practice medicine in way that would violate their beliefs because of the threat of investigations, fines, and other punishments and impairments.

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

6th Circuit: Free Exercise Challenge to Child Custody Ruling Must Be Dismissed

In Edelstein v. Flottman, (6th Cir., Jan. 10, 2025), the U.S. 6th Circuit Court of Appeals agreed with an Ohio federal district court that the domestic relations abstention doctrine requires dismissal of a suit against the state judges and social worker involved in the child custody rulings in plaintiff's divorce case. Plaintiffs, a mother and her minor son, contended that the mother's parental rights and the son's free exercise rights were violated by the custody order which forced the son to spend the Sabbath with his non-observant father. The court said in part:

"a fair reading of [Plaintiffs'] complaint and [their] brief on appeal reveals that the instant case essentially is a pretense to obtain federal review of domestic relations matters," which we cannot do.

University' Rescission of Agreement with Church Did Not Violate Equal Protection or Free Exercise Clauses

In Calvary Chapel Belfast v. University of Maine System, (D ME, Jan. 10, 2025), a Maine federal district court refused to issue a temporary restraining order requiring the University of Maine to move ahead with negotiations with Calvary Chapel for the sale to the Church of the University's satellite campus in Belfast, Maine, known as the Hutchinson Center. Originally the University awarded the Church the right to negotiate terms and conditions for the purchase. Competing bidders, as well as some in the community, objected to the award. The University rescinded the award and ultimately awarded the right to purchase to another bidder. The Church filed suit alleging Equal Protection and Free Exercise violations. Rejecting those claims, the court said in part:

The Church argues the comments of the public and the other bidders, combined with what the Church alleges were procedural anomalies in the System’s process, demonstrate the System made its decision to rescind its initial award to the Church because of the Church’s religious status and views, and therefore violated the Equal Protection Clause....

[T]he only evidence the Church produces that demonstrates religious bias comes wholly from parties outside the University of Maine System. However, ... rather than adopting the community’s animosity toward the Church, the System here specifically rejected such bias. The System, in its August 22, 2024 press release, responded to the comments expressing religious animosity as follows: “[t]he university cannot discriminate, including on the basis of religion. Doing so would be against the law and inconsistent with the university’s commitment to inclusion.”...

None of the Church’s cited authorities stand for the proposition that the Court can conclude solely from public opposition that the System violated the Equal Protection Clause for following its own stated procedures to rescind the award to the Church. The fact that there was religious animosity present in the community and even argued to the System as a basis for appeal cannot mean the System is locked into a decision that it determined would result in a substantial net financial loss....

The Church’s arguments that it will likely succeed on its Free Exercise Clause claim rely on the same arguments it makes in support of its Equal Protection Clause claim....

UPDATE: After an evidentiary hearing, in Calvary Chapel Belfast v. University of Maine System, (D ME, May 7, 2025), the Maine federal district court refused to issue a preliminary injunction on plaintiff's free exercise and equal protection claims.

 

New Mexico Supreme Court: Local Anti-Abortion Ordinances Pre-empted by State Law

In State ex rel. Torrez v. Board of County Commissioners for Lea County, (NM Sup. Ct., Jan. 9, 2025), the New Mexico Supreme Court, in a case brought by the state Attorney General, held that municipal and county ordinances restricting local access to abortions and regulating local abortion clinics are pre-empted by state laws. The local ordinances which the court invalidated purported to require compliance with the federal Comstock Act that prohibits the mailing or receipt of abortion inducing instruments or drugs. The Court concluded that these local provisions are pre-empted by the New Mexico Reproductive and Gender-Affirming Health Care Act enacted by the state legislature in 2023. The court also concluded that other provisions in the local ordinances that purported to require local licensing of abortion clinics are pre-empted by several state medical practice and licensing laws. Newsbreak reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• Sandrine Brachotte, The Limits of Arbitration Law in Addressing Cultural Diversity: The Example of Ismaili Arbitration in the United Kingdom, (May 26, 2021).
• Tabrez Ebrahim, Comparative Intellectual Property & Religion, (14 IP Theory 1 (2024)).
• Laura Portuondo, Are Voters Allowed To Protect Abortion?, (November 03, 2024).
• Ira C. Lupu & Robert W. Tuttle, The Ten Commandments in Louisiana Public Schools: A Study in the Survival of Establishment Clause Norms, (Forthcoming, 2025, Chicago-Kent Law Review, in Symposium: “In Search of Common Ground: Religion and Secularism in a Liberal Democratic Society”).
• Michael DeBoer, State Constitutions and State Abortion Laws After Dobbs, (Santa Clara Law Review, Volume 64, No. 1. Pp. 217-264 (2024).
• Adam Steene, Can the Religious Freedom Restoration Act Survive TransUnion's Test for Article III Standing?, (November 12, 2024).

From SSRN (Islamic Law):

• Muhammad Ishaque Gabol, Islamic Banking System Is the Only Alternative in the Current Financial Crisis of Pakistan: Need of Legislation Abstract, (January 3, 2023).
• Shamila Dawood, Islamic Law and Gender Equality: Challenges and Reforms in Sri Lanka's Muslim Marriage and Divorce Act, (Journal of Islamic Law, volume 5, issue 2, 2024).
• Hacer Saduman Okumuş & Mustafa Alper Gümüş Revitalizing 'Mahr' for the Financial Empowerment of Muslim Women within Türkiye's Secular Legal System, (Social Science and Humanities Open (2024)).
• Samiul Hasan, The Muslim Majority Countries as Islamic State: Importance, Performance, Future, (October 30, 2024).
• Muh Shadiqul Fajri AF, The Role of Mudharabah Contracts Towards MSME Capitalization in Samarinda, (Jurnal Penelitian Ilmiah INTAJ, volume 8, issue 2, 2024).
• Salsabilla Nur Anisa & Muh Shadiqul Fajri AF, The Impact of Islamic Financial Literacy on Gen Z's Investment Decisions in The Islamic Capital Market, (Islamic Capital Market, Volume 2, No. 2. Pp. 1-10 (2024)).
• Ahmad Fauze Abdul Hamit, Dynamic Triangulation between Shariah Compliance, ESG Transparency, and Firm Profitability, (International Journal of Research and Innovation in Social Science, volume VIII, issue XII, 2025).
• Federico Lorenzo Ramaioli, A Constitutional Emirate. Legal Development in Taliban Afghanistan, (March 15, 2022).

From SmartCILP:

• Michael H. LeRoy, Accommodating Religious Liberty in an Artificially Intelligent Workplace, 38 Notre Dame Journal of Law Ethics & Public Policy 681-714 (2024).
• Melanie B. Stambaugh & Laura Creech, Church, State, and the New Mexico Civil Rights Act: How Litigants and Courts Can Invoke the State Constitution to Protect Establishment Clause Rights, 54 New Mexico Law Review 523-550 (2024).

South Carolina Doctors Challenge Abortion Ban on Free Exercise Grounds

Suit was filed last week in a South Carolina federal district court by five physicians who contend that South Carolina's abortion ban violates their religious and conscientious beliefs in violation of the First Amendment's free exercise clause. The complaint (full text) in Bingham v. Wilson, (D SC, filed 1/8/2025), alleges in part:

137. Plaintiffs hold sincere religious and conscientious beliefs that they have unwavering duties to respect the dignity of every person, help people in critical need, and place others before themselves. For Plaintiffs, that includes using their medical training to honor a patient’s request to end a pregnancy that threatens to deeply harm her.

The complaint focuses on the narrow exceptions from the abortion ban in South Carolina law for health of the mother, rape or incest, and fatal fetal anomaly and contends:

168. It is neither religiously neutral nor generally applicable for South Carolina to allow abortion under the Abortion Ban’s secular Exceptions while criminalizing abortion when Plaintiffs’ religious beliefs compel it in substantially similar circumstances. 

169. In sum, South Carolina has criminalized religious conduct while allowing secular conduct that undermines its purported state interest in similar ways. In doing so, the State has made a value judgment that secular motivations for abortion care are important enough to overcome this interest, but that religious motivations are not. South Carolina has thus singled out religious conduct for unfavorable treatment.

Plaintiffs also allege that the health and fetal anomaly exceptions in the law are unconstitutionally vague.

Washington Examiner reports on the lawsuit.  [Thanks to Thomas Rutledge for the lead.]