9th Circuit: Arizona's Free Exercise Statute Did Not Repeal Limit On Prisoner Suits

In Crespin v. State of Arizona, (9th Cir., March 3, 2022), the U.S. 9th Circuit Court of Appeals held that Arizona's Free Exercise of Religion Act did not repeal by implication a provision in Arizona's statutes that allows prisoners to sue for injuries suffered while incarcerated only if the inmate alleges serious physical injury.

Pro-Life Demonstrators Have Free Exercise Claim After Arrest For Violating COVID Order

In Global Impact Ministries v. Mecklenburg County, (WD NC, March 1, 2022), a North Carolina federal district court allowed pro-life demonstrators who were arrested for violating a county-city COVID stay-at-home order to move ahead with their free exercise, but not their free speech, claim for nominal damages. Discussing the free exercise claim, the court said in part:

Until fairly recently, the Supreme Court’s Free Exercise jurisprudence was highly deferential to COVID-19 regulations that burdened religion.... That deference changed dramatically with the Supreme Court’s decisions in Roman Catholic Diocese v. Cuomo ... and Tandon v. Newsom....

Plaintiffs allege that the Proclamation precluded them from engaging in pro-life activities, which Plaintiffs believe are a form of religious ministry.... They allege that shoppers at Home Depot were exempted from gathering limits, while their religiously motivated gatherings were prohibited.... Those activities are comparable for purposes of the Free Exercise analysis.... Because shopping indoors is likely to present greater risk for spreading COVID-19 than socially distanced sidewalk advocacy, strict scrutiny must apply here....

Moving to the free speech claim, the court said in part:

Defendant Mecklenburg County argues that the Proclamation was a valid content-neutral time, place, and manner restriction.... The Court agrees....

There is admittedly an obvious logical incongruity in finding that the Proclamation was not content-neutral for purposes of the free exercise claim, but content-neutral for purposes of the free speech claim. But neither the Supreme Court nor the Fourth Circuit has applied Tandon’s modified approach to content neutrality outside of the context of free exercise claims.

Air Force Reservist With Religious Objection To COVID Vaccine Wins Injunction

In Poffenbarger v. Kendall, (SD OH, Feb. 28, 2022), an Ohio federal district court issued a preliminary injunction barring the Air Force from taking further adverse action against an Air Force reservist who refuses for religious reasons to comply with the military's COVID vaccine mandate.  The court concluded that plaintiff's rights under both RFRA and the free exercise clause were violated, saying in part:

Defendants have not shown that the Air Force’s action meets the least-restrictive-means test. The evidence indicates that the Air Force has granted virtually zero exemptions to the COVID-19 vaccine mandate on religious grounds.... At the same time, the Air Force has granted thousands of exemptions to the COVID-19 vaccine mandate on non-religious grounds.... This supports that less restrictive means of furthering the Air Force’s interests are being provided (even if only on a “temporary” basis) on non-religious grounds. And, the Defendants have not shown why such less restrictive means cannot likewise be provided to Poffenbarger.

Springfield News-Sun reports on the decision.

Suit Challenges Latest Application Of Vermont Town Tuition Program

Suit was filed last week in a Vermont federal district court challenging the manner in which the state administers its Town Tuition Program that provides tuition reimbursement for students from towns that do not have their own public high schools. Reimbursement is available for attendance at private or out-of-district public high schools.  The complaint (full text) in Plaintiff E. W. v. French, (D VT, filed 2/24/2022), alleges that the state's current policy:

requires school districts to collect information on private religious schools' religious activity and to reduce or deny tuition benefits to account for religious schools' "religious worship" or "religious education."

The suit contends that this violates plaintiffs free exercise, free speech, Establishment Clause and due process rights, saying in part:

Defendants have no legitimate interest in enacting a greater separation of Church and State than is provided by the Establishment Clause of the First Amendment to the United States Constitution.

The Town Tuition Program has been the subject of extensive prior litigation. (See prior posting.) ADF issued a press release announcing the filing of the lawsuit.

Suit In Connecticut State Court Challenges Elimination Of Religious Exemptions To School Vaccine Requirements

Suit was filed earlier this month in a Connecticut state trial court challenging the Connecticut's elimination of religious exemptions to the requirement that school children receive vaccination against several diseases. In January, a Connecticut federal district court dismissed a similar challenge (We The Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (D CT, Jan. 11, 2022).  The new state court complaint (full text) in We The Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (CT Super., Feb. 8, 2022), contends that requiring students who have religious objections to receive vaccines developed with fetal cells, or containing porcine gelatin, violates various provisions of the Connecticut state constitution and of state law protecting free exercise of religion, as well as equal protection, bodily self-determination, child-rearing, and public education rights.  CT Insider reports on the lawsuit.

Preacher Can Move Ahead With Selective Enforcement Challenge To U.S. Capitol Demonstration Limits

In Mahoney v. United States Capitol Police Board, (D DC, Feb. 22, 2022), a clergyman challenged traffic regulations that barred demonstrations by 20 or more people at various locations near the U.S. Capitol. Plaintiff claimed he felt "called by God" to hold a prayer vigil near the Capitol to mark the 20th anniversary of the 9-11 attacks. The court rejected plaintiff's facial free speech challenge to the regulation. However it permitted plaintiff to move ahead with his selective enforcement and free-association claims, saying in part:

Plaintiff has therefore alleged that the Board declined to enforce the Traffic Regulations against several large demonstrations that did not involve religious speech, while it enforced them against him because of the religious content of his speech. It is thus at least plausible that Defendants’ decision was based on the content of Mahoney’s speech, even if that is not the only plausible explanation.

The court rejected plaintiff's Free Exercise and RFRA challenges. It observed: "nowhere does he allege that having a large group present was essential to carrying out his sincerely held religious belief."

Christian Doctors Challenge California Assisted Suicide Provisions

An organization of Christian healthcare professionals and one of its members filed suit yesterday in a California federal district court challenging the current version of California's End of Life Options Act (EOLA) on free exercise, free speech, due process and equal protection grounds. The complaint (full text) in Christian Medical & Dental Associations v. Bonta, (CDCA, filed 2/22/2022), alleges that changes made to EOLA last year by SB 380 remove previous protections and now require doctors to participate in assisted suicide in violation of their religious beliefs. It contends that SB 380 requires objecting physicians to:

a. Document the date of a patient’s initial assisted-suicide request, which counts as the first of two required oral requests;
b. Transfer the records ... to a subsequent physician who may complete the assisted suicide;
c. Diagnose whether a patient has a terminal disease, inform the patient of the medical prognosis, and determine whether a patient has the capacity to make decisions, all of which are statutorily required steps toward assisted suicide;
d. Provide information to a patient about the End of Life Options Act;
e. Provide a requesting patient with a referral to another provider who may complete the assisted suicide.

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

Sex Offender Registration Law Does Not Violate Free Exercise Rights

 In Doe v. Rausch, (MD TN, Feb. 16, 2022), a Tennessee federal district court dismissed a plaintiff's claim that subjecting him to the Tennessee Sex Offender Registration Act violates his free exercise rights. The Act, among other things, prohibits registered offenders from being on the grounds of a private or parochial school. Plaintiff contended that the Act "has the effect of prohibiting his presence in a building of worship because most Jewish Synagogues and Community Centers in Tennessee have schools on their grounds."  The court rejected this contention, accepting defendant's argument that the free exercise clause does not relieve plaintiff from the obligation to comply with a neutral law of general applicability.

Air Force Officer Gets Injunction Against Required COVID Vaccine

In Air Force Officer v. Austin, (MD GA, Feb. 15, 2022), a Georgia federal district court, invoking RFRA and the 1st Amendment, granted a preliminary injunction to an Air Force officer who sought a religious exemption from the Air Force's COVID vaccine mandate.  The court said in part:

[T]he Court agrees with Plaintiff’s argument that Defendants haven’t “shown that vaccination is actually necessary by comparison to alternative measures[]” since “the curtailment of free [exercise] must be actually necessary to the solution.”...

Moreover, one must keep in mind that the Air Force has rejected 99.76% of all religious accommodation requests.... With such a marked record disfavoring religious accommodation requests, the Court easily finds that the Air Force’s process to protect religious rights is both illusory and insincere. In short, it’s just “theater.”...

Defendants’ COVID-19 vaccination requirement allows service members to refuse vaccination for secular reasons while disallowing refusal based on religious reasons.... No matter whether one service member is unvaccinated for a medical reason and another unvaccinated for a religious reason, one thing remains the same for both of these service members—they’re both unvaccinated. In other words, both of these service members pose a “similar hazard” to Defendants’ compelling interest in “[s]temming the spread of COVID-19” within the military....

[W]hat real interest can our military leaders have in furthering a requirement that violates the very document they swore to support and defend? The Court is unquestionably confident that the Air Force will remain healthy enough to carry out its critical national defense mission even if Plaintiff remains unvaccinated and is not forced to retire.

Thomas More Society issued a press release announcing the decision. 

Relocation Of Native American Graves Can Proceed

In Asher v. Clay County Board of Education, (ED KY, Feb. 11, 2022), a Kentucky federal district court refused to enjoin a school district from relocating graves from cemetery land which it had purchased. The school board followed procedures in Kentucky law to obtain permission for the relocation.  Plaintiffs claim the the cemetery contains graves of members of the White Top Band of Native Indians.  The court held that the Native American Graves Protection and Repatriation Act does not apply because the cemetery is not on federal or tribal lands. The court rejected plaintiffs' 1st Amendment free exercise claim, saying in part:

Plaintiffs argue that the Defendants’ actions would prevent religious fulfilment.... But like the respondents in Lyng [v. Nw. Indian Cemetery Protective Ass’n], Plaintiffs are not being coerced into violating their religious beliefs, nor are they being penalized because of their religious or traditional beliefs or practices. Instead, they seek to overturn the lawful process undertaken by the BOE to move the graves in the Hoskins Cemetery so that Plaintiffs can continue to practice their traditional and religious beliefs.... This is not “free exercise” of religion protected by the First Amendment. Rather, it amounts to Plaintiffs seeking to exact a benefit from the local government and to “divest the [BOE] of its right to use what is, after all, its land.”

Court Says South Carolina's Ban On Aid To Private And Religious Schools Was Not Discriminatory

In Bishop of Charleston v. Adams, (D SC, Feb. 10, 2022), a South Carolina federal district court rejected federal Constitutional free exercise and equal protection challenges to Art. XI, Sec. 4 of the South Carolina Constitution which bars the use of public funds to directly benefit religious or other private educational institutions. The court held that plaintiffs failed to prove that the provision was motivated by either religious or racial discriminatory intent, saying in part:

[A]ccording to Plaintiffs, the 1895 provision was a so-called “Blaine Amendment” motivated by anti-Catholic animus....

Plaintiffs’ own expert, conceded that the national Blaine Amendment movement was not a significant factor in South Carolina.... The similarity in language between South Carolina’s 1895 provision and Blaine Amendments in other States is not enough to make up for Plaintiffs’ failure to demonstrate the existence of pervasive anti-Catholic animus in South Carolina, much less Plaintiffs’ failure to establish any corresponding discriminatory intent.....

Even assuming the 1895 provision was connected in some way to racial or religious prejudice, Plaintiffs’ claim still cannot succeed. The original 1895 provision no longer governs. Instead, the relevant provision was incorporated into the South Carolina Constitution by a vote of the people in 1972....

Plaintiffs mainly argue that racial and religious prejudice from the 1895 provision tainted Section 4, while also arguing that “[t]he ‘historical backdrop’ of the 1972 Amendment really started in 1619, when the first slaves came to America’s shores.”...

But Plaintiffs’ reliance on these other racist or anti-religious views or policies is unavailing because Plaintiffs do not connect them with Section 4’s adoption.

Illinois Wildlife Code Requirement Survives Free Exercise Challenge

In Tranchita v. Callahan, (ND IL, Feb. 9, 2022), an Illinois federal district court rejected a free exercise challenge to requirements of the Illinois Wildlife Code that led to the seizure of four coyotes from Tomi Tranchita who cared for orphaned coyotes in her suburban Chicago backyard.  Under Illinois law, a person can possess coyotes only if they have both a Breeder Permit and a Hound Running Permit. The requirements for obtaining a Hound Running Permit effectively prevent keeping of coyotes in urban or suburban areas.  Tranchita held a Breeder Permit, but had been unable to renew her Hound Running Permit.  She contends that hound running, i.e. chasing of coyotes by dogs, violates her religious, ethical and moral beliefs.  She argued that requiring her to possess a permit to engage in such a cruel practice violates her free exercise rights. The court held that the Permit requirement is neutral and generally applicable, and the state had a rational basis for the requirement.  The court also rejected Tranchita's equal protection, due process and pre-emption challenges.

Suit Challenging Jehovah's Witness Beliefs Dismissed

In Gasparoff v. Watch Tower Bible & Tract Society of Pennsylvania, (D AZ, Feb. 4, 2022), an Arizona federal district court dismissed a pro se complaint which attacked the beliefs of Jehovah's Witnesses regarding blood transfusions and asked the court "to determine if it is constitutional to use Amendment I in order to propagandize suicidal ideology under the guise of peaceful religious practice." The court said in part:

Plaintiff has no viable legal grounds to advance this case.... Federal Courts can not be arbiters of scriptural interpretation; controversies over religious principles fall outside this Court’s jurisdiction....  Furthermore, the Amended Complaint reflects that Plaintiff has no personal stake in this action, and therefore has no standing to litigate this case.

Church Challenges City's Limits On Its Offering Meals To Homeless

Suit was filed last week in an Oregon federal district court by a church challenging a city's ordinance that limits it from offering free meals to the needy more than two days per week.  The complaint (full text) in  St. Timothy’s Episcopal Church v. City of Brookings, (D OR, filed 1/28/2022), says that the new limits were imposed after city residents complained of the homeless gathering around the church. It contends that the restrictions violate RLUIPA as well as the 1st and 14th Amendments, saying in part:

Plaintiffs believe that God and scripture have directed them to continue serving their community by offering St. Timothy’s meal program more than two days per week to ensure that people in need can have access to at least one hot, nutritious meal every day of the week.

... The City’s land use and zoning regulations ... deny and restrict, and will deny and restrict, Plaintiffs’ religious use of St. Timothy’s’ property, is not supported by a compelling government interest, and is not the least restrictive means of furthering any compelling governmental interest.

Reason reports on the lawsuit.

Court Refuses To Enjoin Medical Campus' Vaccination Mandate

In Jane Does 1-11 v. Board of Regents of the University of Colorado, (D CO, Jan. 27, 2022), a Colorado federal district court refused to grant a preliminary injunction against the COVID vaccination requirements of the University of Colorado's Medical Campus.  Under a revised policy, employees are entitled to a religious accommodation if the accommodation would not unduly burden the health and safety of others.  Medical students are not entitled to religious accommodations.  The court found the policy neutral and generally applicable, and so subject only to rational basis review.  The court said in part:

[T]he Court does not see how offering employees the opportunity to request a religious accommodation could amount to treating comparable secular activity more favorably than religious exercise. For one thing, Plaintiffs have not shown that employees and students are comparable in this context....

[A]lthough the University has determined it can accommodate some employees by allowing them to work remotely, Plaintiffs have made no showing that a similar accommodation for students is practicable.  And ... the ... Policy treats employees and students differently because of Title VII of the Civil Rights Act of 1964, which protects the former but not the latter....

The court also concluded that the presence of medical exemptions does not prevent the Policy from being generally applicable.

Oregon Court Rejects Part Of Its Earlier Decision In Wedding-Cake Dispute

In Klein v. Oregon Bureau of Labor and Industries, (OR App., Jan. 26, 2022), the Oregon Court of Appeals, in a case on remand from the U.S. Supreme Court, reaffirmed its prior decision in part in a challenge to the religious refusal by a bakery (Sweetcakes by Melissa) to provide a wedding cake for a same-sex marriage. The court reaffirmed its conclusion that the refusal violates the anti-discrimination provisions of the state's public accommodation law that prohibits discrimination on the basis of sexual orientation. It held that the U.S. Supreme Court's decision in Fulton v. City of Philadelphia does not change its earlier conclusion, saying in part:

the Kleins have not demonstrated that Fulton alters our prior conclusion that ORS 659A.403 is a “generally applicable” law for purposes of Smith, nor our related conclusion that, under Smith, the application of the law to Aaron’s conduct of denying cake-making services based on sexual orientation does not violate the Kleins’ rights under the Free Exercise Clause.

The court however did set aside the damage order entered by the Oregon Bureau of Labor and Industries, finding that, in light of the U.S. Supreme Court's Masterpiece Cakeshop decision, BOLI’s decision on damages violates the Free Exercise Clause.  The court said in part:

[T]he prosecutor’s closing argument apparently equating the Kleins’ religious beliefs with “prejudice,” together with the agency’s reasoning for imposing damages in connection with Aaron’s quotation of Leviticus, reflect that the agency acted in a way that passed judgment on the Kleins’ religious beliefs, something that is impermissible under Masterpiece Cakeshop.

The Oregonian reports on the decision.

9th Circuit: Fact Issues Remain As To Prison's Confiscation of NOI Texts

 In Jones v. Slade, (9th Cir., Jan. 24, 2022), the U.S. 9th Circuit Court of Appeals reversed a district court's grant of summary judgment and held that there remains genuine issues of fact in connection with an Arizona prison's confiscation of six hip-hop music CD's and two Nation of Islam texts which plaintiff received by mail.  The Court held that questions remain as to selective enforcement of prison rules as to the music CD's.  It concluded that plaintiff's RLUIPA and Free Exercise claims relate to his religious practice of reading Nation of Islam texts authored by Elijah Muhammad during Ramadan.  The court said in part:

RLUIPA defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” ... That means that RLUIPA protects not only practices deemed orthodox by some recognized religious organization,  but also idiosyncratic practices—practices “not compelled by, or central, to a [given] system of religious belief.”

The court held that as to both plaintiff's RLUIPA claim and his 1st Amendment Free Exercise claim, "there is a genuine issue of fact as to whether denying Jones essential religious texts during Ramadan is a substantial burden on his religious exercise...."  Tucson Sentinel reports on the decision.

10th Circuit Affirms Dismissal Of Churches Challenge To Colorado COVID Restrictions

In Denver Bible Church v. Polis, (10th Cir., Jan. 24, 2022), the U.S. 10th Circuit Court of Appeals affirmed a district court's denial of a preliminary injunction in a free exercise challenge by two churches and one of their pastors to COVID restrictions imposed by the state of Colorado.  It similarly affirmed the dismissal of a challenge to the federal government's award of COVID relief aid to the state.  The court dismissed most of the claims against the state on mootness grounds, finding that changes in state restrictions have lifted all COVID limits on churches. The facial challenge to the state's emergency disaster statute was dismissed because the statute is neutral and generally applicable.  The court then dismissed for lack of standing plaintiffs' claim that the federal government violated RFRA by distributing COVID relief aid to Colorado while the state was violating plaintiffs' free exercise rights.

Free Exercise Challenges To OSHA Vaccine Mandate Dismissed By Supreme Court In Light Of NFIB Decision

 As has been widely reported, earlier this month in National Federation of Independent Business v. OSHA, (Sup. Ct., Jan. 13, 2022), the Supreme Court held that OSHA exceeded its statutory authority in ordering vaccination of employees in all businesses with more than 100 employees.  Today, the Supreme Court dismissed 13 cases in which the same OSHA regulation was challenged. (Order List). Among those dismissed were two cases brought by religious institutions that raised specific religious freedom objections to the vaccine mandate: Southern Baptist Theological Seminary v. OSHA, (Docket No. 21A246, dismissed 1/24/2022) and Word of God Fellowship, Inc. v. OSHA, (Docket No. 21A250, dismissed 1/24/2022). More details of the challenges in those two cases are discussed in this prior posting.

Religious Freedom Day, January 16, 2022

Largely lost in a flood of other developments, yesterday (January 16) was Religious Freedom Day, the anniversary of the adoption of the Virginia Statute for Religious Freedom by the Virginia General Assembly in 1786. President Biden last week issued a Proclamation (full text) officially marking the day.