RLUIPA and Free Exercise Claims Rejected in Suit by Native American Who Held Religious Objections to Blood Alcohol Test

In Shash v. City of Pueblo, (D CO, March 14, 2025), plaintiff who was a leader in the southern Colorado Native American Community Church of Aztlan brought a variety of claims against the city, state police and other state agencies growing out of his arrest and DUI charges brought against him after an auto accident. Among the claims were alleged violations of plaintiff's free exercise rights under RLUIPA and the federal and state constitutions. According to the court:

Plaintiffs allege that Trooper Chavez denied Mr. Shash the opportunity to take a breath test and effectively placed Mr. Shash in a position where he had to submit to a blood test or be charged with DUI....  Plaintiffs argue that this constitutes a substantial burden on Mr. Shash’s First Amendment right to free exercise of his religious beliefs, which prohibit blood draws outside a ceremonial context. 

The court dismissed plaintiff's RLUIPA claim, saying in part:

RLUIPA provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution.”...

Because Plaintiffs allege that Mr. Shash was never taken to jail, ... the Parties dispute whether Mr. Shash was ever “confined to an institution” for RLUIPA  purposes....  [W]hile Mr. Shash raises arguments relevant to a finding that he was in “pretrial detention,”..., he omits any discussion of whether his time in the Trooper Defendants’ custody was spent in a “facility.”  The Court thus agrees with Defendants that Mr. Shash was never “residing in or confined to” a qualifying institution.

The court dismissed plaintiff's 1st Amendment free exercise claim on qualified immunity grounds, saying in part:

While Plaintiffs allege that Mr. Shash made an “inquiry” regarding his right to decline a blood test that was “based on his right to religious exercise,” there is no allegation that Mr. Shash disclosed his religious beliefs to any Defendant, nor that Trooper Chavez was ever aware of Mr. Shash’s religious beliefs.... In other words, Plaintiffs fail to allege that Trooper Chavez purposefully imposed a substantial burden on Mr. Shash’s free-exercise rights....  Because Plaintiffs have not identified a clearly established First Amendment right implicated by Trooper Chavez’s conduct, Trooper Chavez is entitled to qualified immunity.

The court refused to exercise supplemental jurisdiction over plaintiff's state free exercise claim because it poses a novel question of the degree of scienter required for a violation of the state's free exercise protections in a suit against state officials. Colorado has not adopted a qualified immunity defense.

Court Upholds NY Law Banning Bars from Opening on New Year's When It Falls on Sunday

In Eris Evolution, LLC v. Bradley, (ED NY, Nov. 8, 2022), a New York federal district court rejected an Establishment Clause challenge to a provision in New York's liquor laws that allows bars to apply for permits to stay open all night on New Year's except when New Year's falls on a Sunday. The court concluded that the U.S. Supreme Court's 1961 decision in McGowan v. Maryland upholding Sunday closing laws forecloses plaintiff's claim.  The court said in part:

McGowan holds that a law with a secular purpose does not violate the Establishment Clause; it does not hold that providing a uniform day of rest is the only such purpose. Indeed, the Supreme Court enumerated the exceedingly broad categories of “health, safety, recreation and general well-being.” ... The only available legislative history states that the law at issue was amended in 1950 “to protect the health of the people.”...

Eris must do more than show that the law is irrational; it must also show that its real purpose is to advance a particular religion or religion in general. This it has failed to do.

Airline Settles EEOC Suit on Behalf of Buddhist Pilot

The EEOC announced this week that United Airlines has settled a religious discrimination lawsuit filed by the agency on behalf of a Buddhist airline pilot.  According to the EEOC:

[T]he pilot was diagnosed with alcohol dependency and lost the medical certificate issued by the Federal Aviation Administration (FAA). One of the requirements of United’s HIMS program ... to obtain new medical certificates from the FAA is that pilots regularly attend Alcoholics Anonymous (AA). The pilot, who is Buddhist, objected to the religious content of AA and sought to substitute regular attendance at a Buddhism-based peer support group. United refused to accommodate his religious objection and, as a result, the pilot was unable to obtain a new FAA medical certificate permitting him to fly again, the agency charged....

Under the consent decree that resolves the lawsuit, United will pay the pilot $305,000 in back pay and damages and will reinstate him into its HIMS Program while allowing him to attend a non-12-step peer recovery program. The company will also accept religious accommo­dation requests in its HIMS Program going forward, institute a new policy on religious accom­modations, and train its employees.

UAE Liberalizes Personal Status and Penal Laws

The United Arab Emirates today announced liberalizing changes in its Sharia-based personal laws. The Hill, The National, and Emirates News Agency all report on the changes made by Presidential Decree to the Personal Status, Civil Transactions, Penal Code and Criminal Procedural laws.  The changes, many involving protections for foreigners living in the UAE, take effect immediately. They include:

• Repeal of the provisions allowing more lenient sentences for so-called "honor crimes".
• Divorces of foreigners who were married abroad will be governed by the laws of their home country instead of Sharia law.
• The law of a person's home country, rather than Sharia law, will govern division of assets on death where no will is left.
• Attempted suicide is decriminalized.
• "Good Samaritans" who intervene to help another person will not be held accountable for the person's injury or death.
• More severe punishments are set for harassment of women.
• Death penalty is prescribed for rape of a minor or of someone of limited mental capacity.
• Alcohol consumption in authorized areas by adults who do not have a license to consume liquor is decriminalized. Typically Muslims have been denied a license.
• Cohabitation by unmarried couples is decriminalized.
• Translators will be provided in courts for defendants and witnesses, and evidence involving indecent acts will not be made public.

Sudan Liberalizes Its Laws On Apostasy, Alcohol, Criminal Sanctions and Women's Rights

Al Jazeera reported earlier this week on important legal reforms being implemented in Sudan:

Sudan approved wide-ranging amendments to its criminal law including repealing the death penalty for apostasy as well as no longer requiring women to need a permit from male family members to travel with their children....

Public flogging will also be ended and the consumption of alcohol by non-Muslims will now be permitted. ...

The new laws will also ban female genital mutilation (FGM)....

Church Testimony To Liquor Board Did Not Violate Establishment Clause

In Clarke v. Goodson, 2018 U.S. Dist. LEXIS 74419 (MD AL, May 1, 2018), and Alabama federal magistrate judge recommended dismissing an Establishment Clause challenge to Pike County, Alabama's denial to plaintiffs of a license for the sale of beer and wine at their restaurant.  Plaintiffs contended that it was a violation of the Establishment Clause for the Alcoholic Beverage Control Board to allow officials of a nearby church to testify in opposition to granting of the license.

[T]he law is settled that the "protect[ion] of churches and schools from disruption associated with liquor serving establishments" is a valid secular purpose.... Moreover, ... the Defendants' conduct would arguably have violated the Establishment Clause, if the Defendants had refused to allow citizens to speak in opposition to the Plaintiff's application on the basis of those individuals' affiliation with the church.