Nurse Denied Religious Exemption From Vaccine Mandate Loses Title VII and Free Exercise Challenges

In Riley v. New York City Health and Hospitals Corp., (SD NY, Feb. 17, 2023), a New York federal district court dismissed without prejudice a suit by a Christian nurse in a hospital's surgical unit who claimed that denying her a religious exemption from the hospital's COVID vaccine mandate violated her rights under Title VII and the Free Exercise Clause. The court said in part:

Title VII cannot be used to require employers to break the law..... When the defendant implemented its vaccine mandate, [New York State Department of Health Rule] Section 2.61, a binding state regulation, required the defendant to “continuously require personnel” like the plaintiff “to be fully vaccinated against COVID-19, absent receipt of” a medical exemption. 10 N.Y.C.C.R. § 2.61(c)....

The plaintiff does not argue that the defendant’s vaccine mandate was not generally applicable. She argues only that the mandate “was not neutral and was and is hostile to the religious beliefs of the plaintiff, as it presupposed the illegitimacy of her religious beliefs and practices.”... An enactment violates the neutrality principle if it “explicitly singles out a religious practice” or “targets religious conduct for distinctive treatment.”... The plaintiff pleads no facts suggesting that the defendant’s mandate is guilty of either. To the extent the plaintiff alleges that the mandate’s lack of a religious exception alone makes it non-neutral, We The Patriots forecloses that argument. See 17 F.4th at 282....

White House Celebrates 2nd Anniversary of Its Office of Faith-Based Partnerships

Last Friday, the White House issued a Fact Sheet titled Biden-⁠Harris Administration Celebrates the Second Anniversary of the Reestablishment of the White House Office of Faith-Based and Neighborhood Partnerships (full text). Among other things, the Fact Sheet discusses ten initiatives undertaken with the goal of "Safeguarding the right to practice faith without fear and other aspects of religious freedom."

Church Can Move Ahead Against County in Suit on Covid Restrictions

 In Abiding Place Ministries v. Newsom, (SD CA, Feb. 14, 2023), a California federal district court allowed a church to move ahead with certain of its claims against San Diego County for enforcing Covid restrictions against public gatherings. The court held that the county's public health officer had qualified immunity against the damage claims because "there was no clear precedent in March or April 2020 that would have put every reasonable official on notice that promulgating orders restricting in person religious gatherings to slow the spread of the COVID-19 virus was clearly and definitively unconstitutional."

The court however allowed plaintiff to move ahead with Free Exercise, Freedom of Assembly, Establishment Clause, Free Speech and Equal Protection claims against the County. The court said in part:

The County threatened enforcement, penalties, and fines if Plaintiff did not comply with the County Order.... Plaintiff alleges this action by the County “forced the Church’s members to remain away from church against their will, under threat of punishment,,,,”  [T]he allegations of the FAC regarding the County’s alleged unconstitutional policy is sufficient overcome the County Defendants’ argument that it cannot be liable under Monell. Accordingly, the County Defendants’ motion to dismiss is DENIED on this ground.....

[The FAC] alleges the County’s Orders and Defendants’ enforcement “had the primary effect of inhibiting religious activity” and caused “excessive government entanglement with religion.” ... Plaintiff contends its religious services exempted from gatherings were treated differently than other public gatherings.... At this stage of the pleadings, the County Defendants’ motion to dismiss the second cause of action is DENIED....

Whatever level of scrutiny is applied, Plaintiff has alleged they were prohibited from engaging in protected speech and assembling in person for the purpose of worship while other gatherings promoting non-religious speech were permissible.... Taking those allegations as true, Plaintiff has plausibly alleged claims for violations of the First Amendment’s freedom of speech and freedom of assembly clauses....

Plaintiff contends Defendants “intentionally and arbitrarily categorized individuals and conduct as either ‘essential’ or ‘non-essential.’”... At the pleading stage, Plaintiff has alleged sufficient facts to state a claim for violation of the Equal Protection clause....

National Archives Sued for Requiring Visitors to Remove Pro-Life Apparel

Suit was filed this week in the D.C. federal district court by three anti-abortion proponents who visited the National Archives on the day of the March for Life in Washington. The complaint (full text) in Tamara R. v. National Archives and Records Administration, (D DC, filed 2/8/2023) alleges in part:

5. While in the National Archives, Plaintiffs were subject to a pattern of ongoing misconduct by federal government officials, specifically National Archives security officers, Defendants John Does and Jane Doe, who targeted Plaintiffs and intentionally chilled their religious speech and expression by requiring Plaintiffs to remove or cover their attire because of their pro-life messages.

6. This case seeks to protect and vindicate Plaintiffs’ fundamental and statutory rights under federal law, the First and Fifth Amendments to the United States Constitution, and the Religious Freedom Restoration Act (“RFRA”).

American Center for Law and Justice issued a press release announcing the filing of the lawsuit. A similar suit was filed against the National Air & Space Museum earlier this week. (See prior posting.)

Bishop Must Testify in Divorce Case with Millions of Dollars at Stake

L.M. v. M.A., (NY County Sup. Ct., Feb. 6, 2023), is a decision by a New York state trial court refusing to quash a subpoena that orders a Coptic Orthodox Church Bishop to testify in a divorce action.  At issue is whether the parties to the divorce action were ever married. If they were, the wife may share in millions of dollars of assets in her claims for equitable distribution of marital property and spousal support. The court explains:

The parties here disagree about whether they were married in 2017, with plaintiff stating that they were married, and defendant stating that the Bishop "blessed" their relationship, but did not marry them. The parties agree that their infant son was baptized, as planned.... The parties also agree that Plaintiff mother L.M., who had previously been baptized by another church ... was then baptized in front of many witnesses in the church in an unplanned ceremony immediately following the child's baptism. What occurred next is the crux of the parties' dispute. Defendant father M.A. asserts that the Bishop, the subject of the instant subpoena, who had conducted the two baptisms, then proceeded to perform a family blessing. Plaintiff mother, on the other hand, claims that the Bishop offered to marry the parties ... and that he then performed the parties' previously unplanned wedding ceremony....  The Bishop performed the ceremonies in a combination of the English, Arabic and Coptic languages and most of the guests, all of whom had only been invited to the child's baptism, were not sure whether or not the final ceremony was a marriage ceremony....

As the Bishop has refused to testify as to which ceremony he performed, allegedly because his religious conviction prevents him from testifying in a civil action involving church members, and the parties and their witnesses have testified to diametrically conflicting views as to which ceremony took place, the Court and the parties have all asked the Bishop to testify. Defendant served a valid subpoena upon the Bishop and the Bishop ... has moved to quash the subpoena, stating through counsel and an affidavit from a Coptic theologian, that it is contrary to the tenets of the religion for the Bishop to testify in civilian court "brother against brother."

The court however refused to quash the subpoena, saying in part:

[T]he Court does not have a sufficient factual basis to find that either (i) Bishop A.B. personally has a religious belief that he cannot come into a civilian court to testify "brother against brother," or that (ii) even if he had such a belief, that it is applicable here, where he is not being asked to testify against a co-religionist but instead to describe a public factual event, and both parties (the only people who could plausibly be considered to be a person "against" whom he is testifying) are instead asking him to testify about those facts.....

In a lengthy discussion, the court went on to say that even if this did pose a 1st Amendment issue, there was no violation here.

Court Tells City to Negotiate Damages After Its Wrongful Arrest of "Psalm Sing" Protesters Against Covid Restrictions

In Rench v. City of Moscow, (D ID, Feb. 1, 2023), an Idaho federal district court refused to dismiss a suit by three plaintiffs who were arrested for violating a COVID Public Health Emergency Order requiring masking or social distancing in public settings.  The Order was issued pursuant to an Ordinance that excluded expressive and associative activity protected by the 1st Amendment if the activity was not specifically prohibited in the Public Health Order. Plaintiffs participated in a local church's "psalm sing" to protest the Order.  In making the arrests, authorities overlooked the exclusion for 1st Amendment activity. Eventually the city moved to dismiss the case, but not before plaintiffs incurred significant legal expenses, The court said in part:

The City’s Code could not be more clear: Under a plain reading of the Order in conjunction with the Ordinance, all expressive activity was excluded from the mask or distance mandate because such conduct was not explicitly addressed in the Order itself. In other words, during the relevant time period, those participating in expressive or associative conduct were not required to mask or distance. Plaintiffs should never have been arrested in the first place, and the constitutionality of what the City thought it’s Code said is irrelevant.....

Given that Plaintiffs were wrongfully arrested, the City indisputably erred in interpreting its own Code, the City consequently misadvised its officers as to the Code’s application, and Plaintiffs are so far reasonable in their damages requests, this case should not need to see the inside of a courtroom. It would behoove everyone involved to take a step back from their respective positions and prepare to negotiate in good faith.

Christian Post reports on the decision.

Faith-Based Resource Center for Homeless Sues Over Right to Serve Snacks to Its Clients

Suit was filed this week in a California federal district court by a Resource Cener for impoverished and disabled individuals alleging that the city of Santa Ana has violated its rights under RLUIPA and the First Amendment by insisting that it stop serving snacks to its clients in order to receive a Certificate of Occupancy, even though it had been operating without one for 15 years.  The complaint (full text) in Micha's Way v. City of Santa Ana, (CD CA, filed 1/30/2023), asks for an injunction and declaratory relief.  Voice of OC, reporting on the lawsuit, summarizes the allegations in the 44-page complaint:

For years, homeless people would come by the red roof house on 4th Street in Santa Ana for help with the basics: Personal documents, mail collection, maybe motel vouchers on a good day.

And on their way back out the door, they’d likely take a pastry from the faith-based center called Micah’s Way — a small parting token in the service of Christian ministry, but an unpermitted property use in the eyes of Santa Ana city officials....

On Monday, Micah’s Way attorney Edmond Connor filed a lawsuit against the city, citing federal protections for religious exercises like feeding and sheltering the homeless.

It accuses city officials of scapegoating Micah’s Way for neighborhood impacts from a nearby needle exchange program.

Chabad's Long-Running Suit Over Land Use Dismissed In Part

In Lubavitch of Old Westbury, Inc. v. Incorporated Village of Old Westbury, New York, (ED NY, Jan. 31, 2023), a New York federal magistrate judge recommended that the district court dismiss on various procedural and jurisdictional grounds (including statute of limitations) a number of the claims in a long-running suit by an Orthodox Jewish Chabad organization that has been unable to obtain permission to use some seven acres of property for religious education, worship and related activities. The magistrate judge began his lengthy Report and Recommendation as follows:

Presently before the Court is a motion to partially dismiss this action, which has been pending for more than fourteen years and involves factual allegations going back to 1994. In the years since the initial complaint was filed on December 17, 2008, this case has been assigned (and then reassigned) to four District Judges ... and four Magistrate Judges.... Furthermore, numerous law firms and attorneys have come and gone on behalf of the parties over this lengthy time span. As a reminder to the parties, they have an affirmative obligation under Federal Rule of Civil Procedure ("Rule") 1 "to secure the just, speedy, and inexpensive determination of every action and proceeding."...

A 237-page Second Amended Complaint in the case asserted 17 causes of action under the 1st, 4th, 5th and 14th Amendments, RLUIPA and the state Constitution.

4th Circuit: Church Loses Challenges to Zoning Restrictions

In Alive Church of the Nazarene, Inc. v. Prince William County, Virginia, (4th Cir., Jan. 31, 2023), the U.S. 4th Circuit Court of Appeals rejected a church's challenges to zoning restrictions that prevented it from using property it purchased for religious services. The church purchased 17 acres of land zoned for agricultural use.  The church originally planned to comply with the agricultural use requirements by making non-alcoholic cider from fruit trees on the property. It would then be classified as a farm winery or limited-license brewery, could build any buildings it wished on the property and could hold events in them. However, the church discovered that in order to qualify, it also was required to obtain a license from the state Alcoholic Beverage Control Board. It concluded that doing this would violate its religious beliefs against the promotion of alcohol. Its only other route was to comply with provisions of a Special Use Permit which required construction that it could not afford. The court rejected the church's equal terms, non-discrimination and substantial burden challenges under RLUIPA, as well as its constitutional Equal Protection, Free Exercise and Peaceable Assembly challenges to the restrictions imposed on it. Courthouse News Service reports on the decision.

Baker Cannot Refuse to Provide Non-expressive Cake to Transgender Customer

In Scardina v. Masterpiece Cakeshop, Inc., (CO Ct. App., Jan. 26, 2023), a Colorado state appellate court held that Masterpiece Cakeshop and its co-owner Jack Phillips violated the Colorado Anti-Discrimination Act when they refused a transgender woman's order for a pink cake with blue frosting.  The woman sought the cake to celebrate her birthday and her gender transition. The court said in part:

[A] proprietor may not refuse to sell a nonexpressive product to a protected person based on that person’s intent to use the product as part of a celebration that the producer considers offensive....

We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker. Thus, CADA does not compel Masterpiece and Phillips to speak through the creation and sale of such a cake to Scardina....

Masterpiece and Phillips argue, requiring them to make a cake that they know will be used to celebrate an occasion that their faith informs them is an affront to God’s design violates their right to freely exercise their religion.

In the context of providing public accommodations, however, a proprietor’s actions based on their religious beliefs must be considered in light of a customer’s right to be free from discrimination based on their protected status. The Supreme Court has long held that the Free Exercise Clause does not relieve a person from the obligation to comply with a neutral law of general applicability.... CADA is a neutral law of general applicability.... 

The Supreme Court has consistently held that the state has a legitimate, indeed compelling, interest in eliminating discrimination from public accommodations.,,, Thus, CADA is rationally related to a legitimate governmental interest. Accordingly, CADA may be enforced against Masterpiece and Phillips without violating their right to the free exercise of religion.

In a press release, ADF said that it would appeal the decision.

Alabama Executive Order Protects Religious Freedom of Licensees, Grantees, Employees and Others

 Alabama Governor Kay Ivey has issued Executive Order No. 733 (Jan. 20, 2023) requiring the executive branch of state government to enforce the Alabama Religious Freedom Amendment to the greatest extent practicable.  The Order sets out specific religious freedom protections for state licensees, contractors, grant recipients, recipients of government benefits and state employees. Among other non-discrimination and free exercise protections, the Order provides:

A state executive-branch agency shall protect the religious-exercise rights of current or prospective licensees (i.e., any person or entity authorized or seeking to be authorized to engage in any profession, trade, business, or activity that requires state government licensure, certification, permitting, chartering, or other formal permission)...

The agency shall not require a current or prospective contractor or grant recipient to alter aspects of its religious character as a condition of receiving or maintaining a contract or grant unless strictly necessary to further a compelling governmental interest.

The state issued a press release announcing the signing of the Executive Order.

4th Circuit: Muslim Inmate's Free Exercise Claim Rejected; Establishment Clause Claim Remanded

In Firewalker-Fields v. Lee, (4th Cir., Jan. 17, 2023), the U.S. 4th Circuit Court of Appeals affirmed the dismissal of a Muslim inmate's 1st Amendment Free Exercise claim. Plaintiff alleged that he did not have access in jail to Friday Islamic prayers. The court said in part:

Middle River had three rules in place that kept Firewalker-Fields from attending in-person Friday Prayer: no inmate led groups; no maximum-security prisoners allowed in any in-person groups; and prisoner services and classes by volunteer or donation only. Those rules are reasonably related to justifiable prison goals and therefore do not offend the Free Exercise Clause....

... [E]ach of Middle River’s policies is reasonably related to the legitimate penological purposes of security and resource-allocation; despite the jail’s policies, Firewalker-Fields still had other ways to practice his religion, even if they were not perfect; Firewalker-Fields’s preferred solutions would have impaired the jail’s safety and its efficient operation; and Firewalker-Fields failed to propose easy and obvious alternative policies that would have solved those issues while allowing more room for his religious practice. Taken together, this shows that each challenged policy is reasonably related to legitimate penological goals and are justifiable under Turner.

The court also vacated and remanded plaintiff's Establishment Clause challenge to the jail's broadcast of Christian services every Sunday on televisions throughout the facility.  Noting the Supreme Court's recent repudiation of the Lemon test and adoption of a test based on historical practice and understanding, the court said in part:

The district court should have the initial responsibility of working through Firewalker-Fields’s Establishment Clause challenge under Kennedy.

Vaccine Mandate Without Religious Exemption Is Upheld

In Spivack v. City of Philadelphia, (ED PA, Jan. 4, 2023), a Pennsylvania federal district court held that Philadelphia's District Attorney Lawrence Krasner did not violate the religious rights of an Orthodox Jewish Assistant District Attorney when he refused to grant her an exemption from the Office's COVID vaccine mandate. The mandate, in its final form, offered no religious exemptions and only limited medical exemptions. According to the court, in seeking a religious exemption plaintiff submitted a letter from her rabbi that explained:

congregation members are forbidden from (1) benefitting from the live dissection of animals; (2) using hybridization technologies; (3) "self-flagellating"; (4) exposing themselves to unnecessary risk (Spivack's "natural immunity" to the virus made vaccination unnecessary); and (5) injecting a product whose precise ingredients are undisclosed.... Neither Krasner nor the City disputes that Spivack's sincerely holds her religious beliefs.

Rejecting plaintiff's First Amendment challenge, the court said in part:

Spivack offers no evidence that Krasner's exemption changes "stemmed from religious intolerance, rather than an intent to more fully ensure that employees [at the DAO] receive the vaccine in furtherance of the State's public health goal."...

[T]he medical exemption Krasner finally approved was for an objectively and narrowly defined category of persons: non-union DAO employees for whom a vaccination could be life-threatening. This is not the kind of exemption that undermines the Policy's general applicability....

The DAO ... "seriously considered substantially less restrictive alternatives" in the hope that they could achieve the Office's compelling interest-- "trying to keep people as safe as we can."... Concluding that these alternatives were inadequate, the Office required vaccinations for all non-union employees save one.

In these circumstances, the DAO Vaccine Policy survives strict scrutiny review.

6th Circuit: Temporary Shortening of Prison Worship Time Upheld

In Dykes-Bey v. Schroeder, (6th Cir., Dec. 27, 2022), the U.S. 6th Circuit Court of Appeals affirmed the dismissal of a suit brought under the 1st Amendment and RLUIPA by a Michigan inmate, concluding that the Michigan prison system had not imposed a "substantial burden" on the inmate's free exercise of religion. According to the court:

[D]efendants reduced the worship time for all religious groups from one hour to 30 minutes. As a result of this reduction in worship time, Dykes-Bey, a Moorish American Moslem, was unable to read the proclamation or conduct the closing prayer at four weekly meetings of the Moorish Science Temple of America....

Finding no 1st Amendment violation, the court said in part: 

Dykes-Bey sufficiently alleged a sincerely held religious belief or practice—reading the proclamation and conducting the closing prayer at meetings of the Moorish Science Temple of America. But the defendants' conduct did not rise to the level of a substantial burden on his religious exercise....

Focusing on plaintiff's RLUIPA claim, the court said in part:

Dykes-Bey sought only monetary relief from the defendants, which is not authorized by RLUIPA.

Another Catholic Parish Sues Michigan Over Expanded Interpretation of State's Anti-Discrimination Laws

 As previously reported, in August the Michigan Supreme Court interpreted the state's civil rights law which bans sex discrimination to cover discrimination on the basis of sexual orientation or gender identity. Yesterday, a Catholic parish, including its school, as well as several parents of students in the school filed suit in a Michigan federal district court alleging that, interpreted in this manner, the employment, education and public accommodation provisions of the Elliott-Larsen Civil Rights Act violate plaintiffs' First and 14th Amendment rights.  The complaint (full text) in Sacred Heart of Jesus Parish v. Nessel, (WD MI, filed 12/22/22), alleges in part:

To comply with Michigan’s re-understood laws, Sacred Heart Parish and its school, Sacred Heart Academy, would be forced to hire faculty and staff who lead lives in direct opposition to the Catholic faith, speak messages that violate Church doctrine, and refrain from articulating Catholic beliefs in teaching its students and when advertising the school to prospective students or job applicants. All of this violates Sacred Heart’s free speech and free exercise rights. Rather than defy Catholic doctrine in these ways, Sacred Heart would shut down. 

But if Sacred Heart cannot operate consistent with its Catholic faith, the parental and free exercise rights of its families are also implicated. Parents have explicitly opted out of public schools in favor of sending their children to Sacred Heart for an authentic Catholic education where their children would never be exposed to harmful ideas and ideologies that contradict the Catholic faith. When Michigan prevents Sacred Heart from operating its school consistent with its Catholic beliefs, it also necessarily violates the fundamental parental and free exercise rights of Sacred Heart families.

ADF issued a press release announcing the filing of the lawsuit.  Earlier this month, a different Catholic parish filed a similar lawsuit.

Court Upholds Conversion Therapy Ban

In Chiles v. Salazar, (D CO, Dec. 19, 2022), a Colorado federal district court rejected constitutional challenges to Colorado's ban on mental health professionals engaging in conversion therapy for minors who identify as gay, lesbian, bisexual, transgender, or gender non-conforming. In a suit brought by a licensed counselor, the court found no violation of plaintiff's free speech rights because the Minor Therapy Conversion Law regulates professional conduct rather than speech. Any speech that is affected is incidental to the professional conduct. The court also found no violation of plaintiff's free exercise rights, saying in part:

According to Ms. Chiles, the Minor Therapy Conversion Law is not neutral because it was “well-known” at the time the Colorado General Assembly enacted the Minor Therapy Conversion Law that conversion therapy was primarily sought for religious reasons.... Therefore, Ms. Chiles’ argument goes, the Minor Therapy Conversion Law impermissibly burdens practitioners who hold particular religious beliefs.... The Court disagrees. The Minor Therapy Conversion Law does not “restrict [therapeutic] practices because of their religious nature.”... [T]he Minor Therapy Conversion Law targets specific “modes of therapy” due to their harmful nature— regardless of the practitioner’s personal religious beliefs or affiliations.... [T]he Minor Therapy Conversion law targets these therapeutic modalities because conversion therapy is ineffective and has the potential to “increase [minors’] isolation, self-hatred, internalized stigma, depression, anxiety, and suicidality”....

European Court: Bulgaria Violated Rights of Evangelical Churches by Warnings Circulated to Schools

In Tonchev v. Bulgaria, (ECHR, Dec. 13, 2022) (full text of decision in French), the European Court of Human Rights in a Chamber Judgment held that municipal officials in Bulgaria violated Article 9 (right to freedom of thought, conscience and religion) of the European Convention on Human Rights when they circulated materials to schools containing hostile information about Christian evangelical churches.  According to the English language press release from the Court on the case:

The Court pointed out that Article 9 of the Convention did not prohibit the public authorities from making critical statements about representatives or members of religious communities. However, in order to be compatible with the Convention, such statements had to be supported by evidence of specific acts liable to pose a threat to public order or to the interests of others. They also had to avoid casting doubt on the legitimacy of the beliefs in question and must remain proportionate to the circumstances of the case.

In the present case, it did not appear from the circular letter and the information notice distributed to schools that the authors had been mindful of the authorities’ duty of neutrality and impartiality. On the contrary, these documents contained unqualified negative judgments, in particular those portraying the Evangelical Churches as “dangerous sects” which “contravene[d] Bulgarian legislation, citizens’ rights and public order” and “create[d] divisions and opposition within the Bulgarian nation on religious grounds”. They also made unfounded references to certain proven cases of improper proselytising as reflecting the usual practice of those Churches. Lastly, they drew comparisons with the dominant Orthodox religion and made remarks linking, in particular, the lack of veneration of “national saints” with the division of the Bulgarian nation. Those remarks could be interpreted as casting doubt on the legitimacy of the beliefs and practices of the Churches concerned.

While the Court regarded as justifiable the intention to warn pupils against possible abusive practices by certain religious groups by informing them about such practices, it was not persuaded that the use of language such as that referred to in the preceding paragraph was necessary for that purpose.

British Columbia's COVID Restrictions on Worship Services Upheld

In Beaudoin v. Attorney General of British Columbia, (BC Ct. App., Dec. 16, 2022), the highest court in the Canadian province of British Columbia upheld 2020 and 2021 COVID orders of BC's Provincial Health Officer that prohibited in-person worship services.  The court concluded that the Gathering and Events Order did not violate §15 of the Charter of Rights and Freedoms that protects the equality rights of the churches that were plaintiffs in the suit, saying in part:

[T]he G&E orders did not create any distinction based on the religious or non-religious nature of the setting in question. Any distinction between settings permitted to remain open and those required to close was based on epidemiological data and the PHO’s assessment—supported by provincial, national and international data and experience—that the level of risk of viral transmission was unacceptably high in certain types of settings or gatherings involving certain types of activities. The risks associated with retail and other permitted activities—typically involving more transient contact between individuals of a transactional nature—were determined to be different than the risks associated with the activities that form an essential component of in-person religious worship and the celebration of faith.

The court also concluded that plaintiffs' religious freedom rights under §2 of the Charter were not infringed, saying in part:

In my view, the limitation on the religious freedom of the appellants stemming from the G&E orders has been shown to be a proportionate one in light of the unprecedented risk to public health that arose during the second wave of the virus, the need to take precautions to stop preventable deaths from occurring, and the need to protect the capacity of the healthcare system....

[T]here was an ample evidentiary basis upon which the PHO could reasonably conclude that, when faith-based communities gathered for worship, the risk of transmission was unacceptably high.... [O]bservance of the liturgy requires a spiritual communion of faith that involves participation of the congregation in physically intimate acts—sharing communion, prayer, and song. These activities were known to be associated with a heightened risk of transmission.... [T]here is no proper basis upon which a reviewing court could interfere with the scientific determinations underlying the PHO’s orders....

CBC News reports on the decision.

Christian Doctors Challenge New Mexico's Assisted Suicide Law

Suit was filed this week in a New Mexico federal district court by a physician and the Christian Medical & Dental Associations challenging the constitutionality of New Mexico's End-of-Life Options Act.  The complaint (full text) in Lacy v, Balderas, (D NM, filed 12/14/2022), alleges in part:

6. The Act purports to protect physicians who object to assisted suicide for reasons of conscience, saying they will not be required to “participate.” But that promise rings hollow. The Act does not define the word “participate,” requires conscientious objectors to facilitate suicide in material ways, and expressly prohibits professional associations like CMDA from taking action to ensure that their members advance—rather than undermine—their mission and message.

7. The Act compels objecting physicians to speak and inform terminally ill patients about the availability of assisted suicide.....

8. The Act forces objecting physicians to refer their patients to physicians or organizations who are “able and willing to carry out” the patient’s assisted suicide.....

9. The Act expressly prohibits professional associations like CMDA from suspending, denying, or revoking membership to physicians who participate in assisted suicide, violating CMDA’s right to associate with members who will present a consistent message. Id. at § 24-7C-7(B).

10. The State of New Mexico thus compels objecting health care professionals to speak a certain message about assisted suicide, and forces them to provide proximate, formal, and material cooperation in an unethical and sinful act.

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

Suit Charges Selective Granting of Religious Exemptions From COVID Vaccine Mandate

A class action lawsuit was filed in a Virginia federal district court this week alleging that the University of Virgina Health System violated free exercise and establishment clause provisions of the federal and state constitutions as well as equal protection rights in the manner in which it administered applications from employees for religious exemptions from its COVID vaccine mandate. The complaint (full text) (memo in support of motion for preliminary injunction) in Phillips v. Rector and Visitors of the University of Virginia, (WD VA, filed 12/14/2022), alleges in part:

2. When UVA Health mandated that employees receive a COVID-19 vaccine, it knew that it was required to accommodate religious beliefs. But it wanted to minimize accommodations, and it believed that most objections were false political beliefs from members of the political right. 

3. So UVA Health drew up a list of churches that its human-resources personnel believed had official doctrines prohibiting vaccination. It then automatically exempted members of these religions from receiving the vaccine. As to employees who were members of other faiths, UVA Health automatically dismissed their religious objections to the COVID-19 vaccine as insincere, as non-religious in nature, as based on “misinformation,” or as a misinterpretation of the objector’s own religious beliefs....

5. The result was blatant—and blatantly unconstitutional—religious discrimination....

The complaint goes on to allege that UVA categorically dismissed as misinformation objections based on the relation of fetal cell lines to the vaccines. [Thanks to Samuel Diehl for the lead.]