Ohio Legislature Passes Bill Requiring Released Time Programs and Providing Parents' Bill of Rights

On Dec. 18, the Ohio legislature gave final approval to House Bill 8 (full text) which includes a Parents' Bill of Rights and a provision requiring school boards to adopt a released time program, defined as "a period of time during which a student is excused from school to attend a course in religious instruction conducted by a private entity off school district property." Ohio law has previously made released time programs permissible rather than mandatory. The bill also adds a provision requiring schools to cooperate with sponsoring entities to identify a time during the school day for released time programs.

The parental rights portions of the bill include provisions requiring that parents be given the opportunity to review any instructional material that includes sexuality content. No sexuality instruction is permitted before 4th grade.  The bill also requires notification to parents of changes in counseling services provided to their children, including any request by a student to identify as a gender that does not align with the student's biological sex. Numerous provisions call for parental involvement in other health care services provided by schools to their children. Once the legislature forwards the bill to the governor, he will have 10 days to sign or veto the bill. Ohio Capital Journal reports on the bill. [Thanks to Scott Mange for the lead.]

House Republicans Release Report on Antisemitism

Yesterday, Speaker Mike Johnson and Republican leadership released the 42-page U.S. House of Representatives Staff Report on Antisemitism. (Full text). The Report says in part:

The House-wide investigation has uncovered deeply troubling realities about how antisemitism has been allowed to fester unchecked, including in universities and institutions across the country, with little to no accountability or oversight to prevent its continued spread. The events of the past year have laid bare the systemic failures of many universities, other nonprofit organizations, public officials, higher education administrators, and the federal government in addressing antisemitism – a pervasive issue they can no longer ignore. 

The findings expose a disturbing pattern of defensiveness and denial among institutions. Rather than confronting the severity of the problem, many institutions have dismissed congressional and public criticism and abdicated responsibility for the hostile environments they have enabled. This refusal to acknowledge or address the issue has allowed antisemitism to take root and thrive in spaces that contravene the values of this great nation. 

The House-wide effort has culminated in a set of recommendations for schools, Congress, and the executive branch to consider. These actionable steps are designed to ensure that the rising tide of antisemitism is confronted and eradicated at its core. By holding institutions accountable and fostering an environment of responsibility, these measures aim to restore safety and respect for Jewish Americans across the country.

House Committee Holds Hearing on Biden Administration's Use of the FACE Act

On Wednesday, the House Judiciary Subcommittee on the Constitution and Limited Government held a hearing titled Revisiting the Implications of the FACE Act: Part II.  The hearing focused largely on whether the current administration has applied the Freedom of Access to Clinics Act unequally, and on the impact of the Dobbs decision on FACE. A video of the hearing and links to witnesses' prepared statements are available at the Judiciary Committee's website.

Yeshiva Denied Preliminary Injunction Against Zoning Enforcement

In Anash, Inc., d/b/a Wyoming Valley Yeshiva v. Borough of Kingston, (MD PA, Dec. 19, 2024), a Pennsylvania federal district court refused to grant a preliminary injunction to an Orthodox Jewish Yeshiva whose property was condemned because it was being used for a school and dormitory in violation of zoning ordinances. The court concluded that plaintiff was not suffering irreparable harm, and that it was not likely that plaintiff would succeed on the merits of its challenge to the relevant zoning ordinance. The court said in part:

Plaintiffs also provide no support for their assertion that Rabbi Hellinger’s inability to access the Properties impairs his religious freedom, ability to act as a religious leader to others, or others’ freedoms. Defendants are not refusing to allow Rabbi Hellinger to practice his religion in any manner or gather with members of his congregation in any location other than the Properties.... Plaintiffs concede that they have been able to secure temporary alternative locations to gather to study Torah and engage in religious activities.... While Plaintiffs testified that the temporary or alternative locations do not allow for the same level of participation or consistency, the Court does not find that such imperfections show “irreparable harm.”...

Importantly, Plaintiffs have refused to engage in any sort of efforts to compromise or come to a resolution with the Borough....

The parties agree that the seminal issue for Plaintiffs’ religious discrimination claims, asserted under RLUIPA, the First Amendment, and the Equal Protection Clause, all require this Court to determine if Plaintiffs can show evidence that the Zoning Ordinance restricts their freedom of religion in some way, that Defendants’ actions were somehow motivated by animus, or that Plaintiffs were treated differently than similarly situated individuals based upon their religion.... Plaintiffs have not established any of these scenarios....

Plaintiffs can and have practiced their religion in alternative locations and may, but have not, apply for a variance to use the Properties as a school, dormitory, or house of worship.... There is no convincing evidence that Plaintiffs’ freedom of religion is legitimately burdened. Further, even if they had shown such evidence, the Zoning Ordinance is the least restrictive manner of furthering a compelling government regulatory interest in health and safety,... 

Ecclesiastical Abstention Doctrine Requires Dismissal of Pastor's Allegations of Sham Investigation to Oust Him

 In Weems v. Association of Related Churches, (MD FL, Dec. 19, 2024), a Florida federal district court dismissed on ecclesiastical abstention grounds a suit alleging tortious interference and conspiracy brought by Charles Weems, the former senior pastor and co-founder of Celebration Church and by his wife, the other co-founder. Plaintiffs allege that defendants hatched a plan to oust him as senior pastor because his vision for the church would lead to reduced financial contributions to defendant's church planting activities. Weems alleged that, based on manufactured evidence, the church initiated a sham investigation of him to determine if he had engaged in improper financial practices and had failed to fulfill his duties as Senior Pastor. Targeting of Weems eventually led to his resigning. The court said in part:

... [W]hile Plaintiffs frame their claims as tortious interference and conspiracy, these claims cannot be decided without resolving whether Celebration Church investigated Pastor Weems for legitimate religious reasons, or because of the tortious conduct of Defendants.... Such an inquiry would result in the Court entangling itself in matters of “theological controversy, church discipline, [and] ecclesiastical government,” which the ecclesiastical abstention doctrine squarely prohibits....

Indiana Supreme Court Lets Preliminary Injunction Against Abortion Ban When It Violates Religious Beliefs Stand

Last week, the Indiana Supreme Court, by a vote of 3-2, refused to review at this stage in the litigation a preliminary injunction entered by lower courts in a suit claiming that the state's Religious Freedom Restoration Act is violated when plaintiffs are prohibited by Indiana's abortion law from obtaining an abortion that their religious beliefs direct them to obtain. (See prior posting.) In Individual Members of the Medical Licensing Board of Indiana v. Anonymous Plaintiff 1, (IN Sup. Ct., Dec. 10, 2024), the Order denying the petition to transfer the case to the Supreme Court was not accompanied by a majority opinion. However, Justice Molter joined by Justice Rush filed a concurring opinion saying in part:

This case involves an unusual preliminary injunction—the trial court temporarily enjoined state officials from enforcing the State’s abortion law, but only for a particular group of women who are not pregnant and therefore are not seeking an abortion. The Court of Appeals concluded that the trial court didn’t exceed its discretion by entering a preliminary injunction while the case continues to be litigated. But the panel also directed the trial court to narrow the preliminary injunction on remand. So thus far, this case is not stopping the defendants from doing anything. And we don’t yet know if it ever will, including because the defendants may ultimately prevail in the lawsuit....

I conclude the more prudent course is for the Court to review the case after a final judgment rather than following a preliminary injunction, which remains a work in progress and subject to more deferential appellate review. In essence, it is better that we review the trial court’s final answer rather than its first guess....

Justice Slaughter, joined by Justice Massa, filed a dissenting opinion, saying in part:

Our denial of transfer means the trial court’s “final answer” will lack the benefit of our current thinking. By saying nothing, we may leave the misimpression that the injunction’s only vulnerability is its scope. As my colleagues acknowledge, this case “presents transfer-worthy issues with previously undecided questions of statewide importance”.

Indiana ACLU issued a press release announcing the decision.

Cert Granted on Whether Medicaid Beneficiary Can Challenge Cutoff of Funds to Planned Parenthood

The U.S. Supreme Court yesterday granted review in Kerr v. Planned Parenthood, (Docket No. 23-1275, certiorari granted 12/18/2024) on the question of whether individual Medicaid beneficiaries have a private right of action to enforce the Medicaid Act’s any-qualified provider provision. The case arises from a challenge to South Carolina's termination of Medicaid funding to Planned Parenthood. This was Question 1 presented by the petition for certiorari, the issue on which the Supreme Court granted review. Here is the SCOTUSblog case page with links to pleadings and briefs in the case.

Hospital Employee's Vaccine Objections Were Religious

In Lavelle-Hayden v. Employment Dept., (OR App., Dec. 18, 2024), an Oregon state appellate court held that a hospital respiratory therapist who was denied a religious exemption from the hospital's Covid vaccine requirement should receive unemployment benefits. It held that the state Employment Appeals Board's (EAB) conclusion that the employee's objection to the Covid vaccine was secular or personal in nature, rather than religious, was not supported by substantial evidence. The court said in part:

First, the EAB appears to have overlooked the Supreme Court’s injunction that tribunals ordinarily must refrain from assessing the plausibility of a claim of religious belief, and to have read the record with unreasonable parsimony in view of that standard....

Second, the EAB drew unreasonable inferences from the fact that claimant’s church declined to provide her a letter in support of her exemption request. The EAB inferred that “the fact that claimant’s own religious leader refused to provide a letter weighs to some extent against finding that claimant’s opposition to taking the vaccine was rooted in religion.” The EAB also inferred that the fact “that the leader told claimant it might be ‘too political to get involved’ supports an inference that when claimant asked for the letter, the religious leader regarded claimant’s objection to receiving a vaccine to be based on her political beliefs, not religion.”... But that reasoning ... presupposes that one’s religious beliefs and political beliefs are necessarily mutually exclusive....

... [T]here is no basis on which to sustain the denial of benefits that is consistent with the evidence and Free Exercise Clause.

Circuit Court Nominee Says Anti-Muslim Prejudice Derailed His Confirmation

On Monday, Adeel Mangi, President Biden's nominee to fill a vacancy on the U.S. 3rd Circuit Court of Appeals, submitted a letter (full text) to the President acknowledging that the Senate will not confirm his nomination. (See prior related posting.) Mangi would have been the first Muslim to sit on a federal Circuit Court.  In his lengthy letter, Mangi attributed his inability to obtain Senate confirmation largely to anti-Muslim prejudice. The letter reads in part:

I saw in America a country where I could succeed based on my professional skill, hard work, and character regardless of my faith or background....

When my nomination then came before the Senate Judiciary Committee, I was prepared to answer any questions about my qualifications, philosophy, or legal issues. I received none. Instead, I was asked questions about Israel, whether I supported Hamas, and whether I celebrated the anniversary of 9-11. Even more revealing, however, was the tone. The underlying premise appeared to be that because I am Muslim, surely I support terrorism and celebrate 9-11.....

The pretext for these questions was that I had agreed to serve on an outside advisory panel for an academic center that was being established at a preeminent New Jersey Law School to combat bigotry and discrimination, including Islamophobia....

After Jewish groups came to my defense, these same attackers pivoted focus to a new absurdity, claiming that I supported the killing of police officers -- silently underpinned, in my view, by the notion that as a Muslim I surely support violence, including against law enforcement....

Resurgent efforts after the election towards confirmation were derailed by the deal in the Senate that denied all circuit nominees a vote....

 American Muslims are part of this nation's fabric and will not cower. This campaign was intended to make it intolerable for Muslims proud of their identity to serve this nation. It will fail. Our Constitution forbids religious tests for any Office of the United States and American Muslims will cherish that fundamental American value, even if others apply it only selectively....

Pittsburgh Post-Gazette reports on these developments.

Justice Department Sues Georgia City for Violating RLUIPA

On Monday, the Justice Department filed a lawsuit in a Georgia federal district court against the city of Brunswick, Georgia, alleging that the city violated RLUIPA by attempting to shut down The Well, a hospitality and religious resource center for homeless individuals. The complaint (full text) in United States v. City of Brunswick, Georgia, (SD GA, filed 12/16/2024), alleges in part:

2. Through its campaign to shut down The Well, including a mandatory closure order and a nuisance lawsuit, Brunswick imposed a substantial burden on the religious exercise of FaithWorks, and of The Well’s staff and leadership, without a compelling interest and without using the least restrictive means of achieving that interest, in violation of RLUIPA....

52. Operating The Well is an expression of faith that is substantially burdened by the City’s efforts to permanently close The Well. FaithWorks, which runs The Well, is an extension of the Methodist Church, and providing basic services to the poor and unhoused individuals are cornerstones of FaithWorks’ religious practice. FaithWorks and The Well are led by Reverend Culpepper and his staff of Christian ministers. And at The Well, staff members offer the opportunity for prayer and religious study to those who are interested....

57. Even if a compelling interest was implicated, the City cannot show that shutting down The Well or forcing FaithWorks to adopt new religious leadership is the least restrictive means of achieving the City’s purported interest. The City cannot show that shutting down The Well is necessary to protect safety, particularly when The Well has already adopted procedures that have addressed the City’s purported safety concerns, and has successfully operated under those procedures for over a year.

The Department of Justice issued a press release announcing the filing of the lawsuit.

Montana Supreme Court Upholds Preliminary Injunction Against Ban on Gender Affirming Care for Minors

In Cross v. State of Montana, (MT Sup. Ct., Dec. 11, 2024), the Montana Supreme Court upheld a trial court's preliminary injunction against enforcement of Montana's ban on medical or surgical treatment of minors for gender dysphoria.  The court said in part:

 ¶37 The statute’s impact on individual privacy rights triggers strict scrutiny review, which requires the State to demonstrate that “the legislation [is] justified by a compelling state interest and [is] narrowly tailored to effectuate only that compelling interest.” ...  Though the State has a compelling interest in “safeguarding the physical and psychological wellbeing of a minor,” a statute implicating their privacy rights must be narrowly tailored to serve that interest....  SB 99 affords no room for decision-making by a patient in consultation with their doctors and parents.  The statute is a complete ban, prohibiting individualized care tailored to the needs of each patient based on the exercise of professional medical judgment and informed consent.  

¶38 At this stage of the proceedings, the District Court conscientiously weighed the parties’ evidence.... Our role is not to reweigh conflicting evidence or to question a district court’s assessment of the strength of the evidence on a preliminary injunction appeal....

Justice McKinnon, joined by Justice Gustafson, filed a concurring opinion, saying in part:

I write separately because I believe Plaintiffs’ equal protection claim should likewise be addressed by the Court.

Justice Rice dissented in part, saying in part:

¶68 I concur with the Court’s holding affirming the District Court’s entry of a preliminary injunction enjoining SB 99’s medical restrictions.  A legislative prohibition of an approved medical procedure must satisfy the high bar of being narrowly tailored to serve a compelling state interest in addressing a bona fide health risk....

 ¶69 However, it should also be noted that both the medical and legal grounds regarding the subject treatment of minors addressed by SB 99 are moving under our feet, and the status quo itself is becoming a moving target, even as this litigation continues....

¶70 I would reverse the District Court’s enjoinder of the funding prohibition of SB 99...

Daily Montanan reports on the decision.

Recent Articles of Interest

From SSRN:

• Steven Douglas Smith, We Hold . . . What Truths? Further Reflections on the American Proposition, (Rice-Hasson Lecture, Delivered at Notre Dame Law School, November 1, 2024).
• Andrew C. Michaels, Ayahuasca and Religious Freedom, (October 15, 2024).
• Raphael Cohen-Almagor, Coercion by the Orthodox Minority in Israel, (October 28, 2024).
• Catherine E. Smith, Tanya Washington & Suzette Malveaux, Brief of Amici Curiae Scholars for the Advancement of Children’s Constitutional Rights in Support of Defendant-Appellees in St. Mary v. Roy, (October 24, 2024).
• Mark V. Tushnet, Some Thoughts About Free Speech and Hostile Environment Discrimination on College Campuses, (October 16, 2024).
• Bernard M. Levinson, In Memoriam Norbert Lohfink SJ (28 July 1928-23 September 2024), (Society of Biblical Literature In-Memoriam Archive (2024)).

From SSRN (Islamic Law):

• Ali Rod Khadem, Islamic Apocalyptic Justice, (Islamic Law and Society, Vol. 31, No. 3, p. 260 (2024)).
• A.B.M. Asrafuzaman & Mohammad Golam Sarwar, Recent Trends of Judicial Activism for the Advancement of Muslim Family Laws in Bangladesh: A Critical Appraisal, (September 12, 2020).
• Eleni Polymenopoulou, Sharia and Human Rights Law in the Constitutional Framework of Gulf States, (May 01, 2023).
• Zeeshan Rais Khattak, Examining Conditions of Maṣāliḥ Mursalah Fulfilling the Higher Objectives of Islamic Law (Maqāṣid al-Sharīʿah) in the Modern Age, (June 20, 2022).
• Rauf Iqbal, Muhammad Asghar Shazad, Abbas Abbas & Muhammad Akmal, Determinants of Performance of Insurance Companies having Window Takāful Operations in Pakistan, (Manchester Journal of Transnational Islamic Law & Practice, Vol 20, Issue 3, 2024).
• Madhushka Kannangara, The Transition from LIBOR to RFRs: Implications on Islamic Banking and Finance (May 23, 2024).

SNAP Work Requirement Did Not Violate Free Exercise Rights of Plaintiff's Adult Children

In Light v. Missouri Department of Social Services, (WD MO, Dec. 12, 2024), a Missouri federal district court dismissed a suit challenging the removal of plaintiff's four adult children from the SNAP (food stamp) program because they failed to comply the requirement to register for work and accept suitable employment offers.  According to the court:

Plaintiff alleges that participation of her four adult children in the SNAP work program is against their sincerely held beliefs under the Holy Bible New Testament KJV. Specifically, Plaintiff alleges that the work registration and training requirements would cause her children to give up their time to an employer placing them under ownership, and be placed in a position of a servant....

Plaintiff does not cite, and the Court has not found, any indication where the SNAP work and training requirements are not generally applicable. 

If a law is neutral and generally applicable courts will apply a rational basis review.... Courts uphold a valid and neutral law of general applicability if it is rationally related to a legitimate governmental purpose even if there is an incidental effect on religious belief.... SNAP was established to raise levels of nutrition among low-income households. To be eligible for the program both households and individuals had to adhere to certain eligibility requirements. This is a rationally related law to a legitimate government purpose of raising levels of nutrition among low-income households....