Imam Lacks Standing To Challenge Alabama Execution Exclusion

In Maisonet v. Dunn, (SD AL, Nov. 17, 2021), an Alabama federal magistrate judge recommended dismissing for lack of standing a suit by an imam who has previously ministered to inmates on Alabama's death row. Plaintiff challenges Alabama's new execution protocol which bars all religious advisors from the execution chamber. The magistrate judge said in part:

The allegation that "ADOC will continue to enforce a policy of excluding religious advisors—including Imam Maisonet—from the execution chamber" ... is insufficient because the Court has already held that Maisonet does not have a constitutionally protected right to be present in the execution chamber and because there is no allegation, for example, that Maisonet plans to attend a specific execution or that any inmate desires to have Maisonet attend an execution. Although Maisonet alleges that he "remains committed to providing religious support and guidance to the Muslims on Alabama's death row" ..., a commitment to religious support and guidance does not establish a certainly impending injury....

[T]he third-party inmates on Alabama's death row could assert their own rights and, in fact, have done so in appeals all the way to the United States Supreme Court. "It is the inmates, not [Maisonet], who have standing to pursue the primary claim he articulated."

Native American Parents Can Move Ahead With Suit Challenging School's Cutting of Children's Hair

In Johnson v. Cody-Kilgore Unified School District,(D NE, Nov. 10, 2021), a Nebraska federal district court allowed Native American parents (members of the Rosebud Sioux tribe) who practice traditional Lakota religious traditions to move ahead with several of their claims growing out of the school's cutting of their children's hair as part of a lice check. The school's cutting and disposing of the hair violates Lakota tradition. Plaintiffs claim that the school had an unwritten policy of cutting hair during lice checks that only applied to Native American students. The court allowed plaintiffs to proceed with their free exercise and Title VI racial discrimination claims. The court however dismissed plaintiffs' 14th Amendment parental rights claim. The Reader reports on the decision.

Conditions Of Special Use Permit For Church Upheld

In Alive Church of the Nazarene, Inc. v. Prince William County, Virginia, (ED VA, Nov. 10, 2021), a Virginia federal district court dismissed a suit brought by a church that sought to use its property for religious gatherings even though it could not yet afford to comply with conditions of its special use permit. The church was presently using space elsewhere in a farm winery/ brewery for religious services. It attempted to circumvent the special use permit requirements by obtaining approval to grow fruit trees and make non-alcoholic apple cider on its own property. However zoning authorities said that structures not associated with that agricultural use were not permitted, and that use of present structures for events such as wedding receptions would be allowed only if the church obtained a liquor license-- which the church refused to do because of its opposition to alcohol. The court rejected the church's RLUIPA, Free Exercise, Freedom of Assembly and Equal Protection challenges.

6th Circuit Grants En Banc Review Of Catholic School's Challenge To Mask Order

In Resurrection School v. Hertel, (6th Cir., Nov. 10, 2021), the U.S. 6th Circuit Court of Appeals vacated the 3-judge panel opinion and granted en banc review. The panel decision, by a 2-1 vote, upheld  Michigan's previous COVID-19 mask order for schools.  The court affirmed the denial of a preliminary injunction sought by a Catholic elementary school, concluding that the order was neutral and generally applicable. (See prior posting.) AP reports on yesterday's action by the court.

6th Circuit: Prison Cannot Just Fail To Respond To Inmate's Religious Requests

In Byrd v. Haas, (6th Cir., Nov. 9, 2021),the U.S. 6th Circuit Court of Appeals reversed a Michigan federal district court's dismissal of RLUIPA, free exercise, equal protection and due process claims brought by an inmate who sought to worship with other inmates of the Ifa faith and to obtain certain religious items for worship. The court said in part:

Between his conversion to the Ifa faith in August 2015 and filing this lawsuit more than two years later, Byrd sent four requests for Ifa group services and nine items that he considers essential to the Ifa faith. These items include, among other things, a straw mat for prayer, herbs, and more beads. How did the Department respond to these requests? It didn’t. Not one made its way to McKee [Deputy Director of the Department of Corrections] for a final decision. And since this lawsuit began, Byrd has filed a fifth request. But the Department hasn’t fully resolved that request either....

... [A] government agency cannot simply end-run judicial review by sitting on its hands and allowing a claimant’s request to languish in a bureaucratic black hole. 

Catholic School Parents Lose Challenge To School Mask Requirement

In  Resurrection School v. Hertel, (WD MI, Nov. 3, 2021), a Michigan federal district court refused to issue a preliminary injunction against a county health department COVID order requiring (with certain exceptions) all persons in indoor educational settings to wear face coverings. Parents of Catholic school students argued that the order violates their free exercise rights because masks in school inhibit their children's Catholic education. The court said in part:

[Plaintiffs] argue that ... they are likely to succeed on the merits ... because (1) the emergency order targets Catholic and private schools, (2) the emergency order does not pass strict scrutiny ... and (3) the emergency order is not generally applicable because it only applies to schools and not all public spaces. The Court does not find any of these arguments to be persuasive and instead finds that Plaintiffs are not likely to succeed on the merits.

Navy's Limits On Religious Exemptions To Vaccine Mandate Are Challenged

New litigation over limited religious exemptions to COVID vaccine mandates continues to arise.  This time, 35 members of the U.S. Navy filed suit in a Texas federal district court contending that the Navy's policy of denying exemptions or disqualifying from special operations deployment personnel who claim a religious exemption violates their rights under RFRA and the 1st Amendment, as well as the Administrative Procedure Act. The complaint (full text) in U.S. Navy SEALs 1-26 v. Biden, (ND TX, filed 11/9/2021) alleges a wide variety of religious objections held by various of the plaintiffs who represent Catholic, Protestant and Eastern Orthodox traditions:

60. Plaintiffs believe that receiving a COVID-19 vaccine that was tested, developed, or produced using aborted fetal cell lines would force them to violate their sincerely held religious beliefs by causing them to participate in the abortion enterprise, which they believe to be immoral and highly offensive to God....

63. Multiple Plaintiffs hold to the sincere religious belief that the human body is God’s temple, and that they must not take anything into their bodies that God has forbidden or that would alter the functions of their body such as by inducing the production of a spike protein in a manner not designed by God....

73. Multiple Plaintiffs hold to the sincere religious belief that, upon seeking guidance from God as to whether to receive a COVID-19 vaccine, God instructed them not to do so.

74. One Plaintiff holds to the sincere religious belief that trace animal cells in the COVID-19 vaccines, such as from swine, should not be injected into his body.

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

 

School Must Offer Alternatives To Nursing Students Who Assert Religious Objection To COVID Vaccination Requirement

In Thoms v. Maricopa County Community College District,(D AZ, Nov. 5, 2021), an Arizona federal district court granted a preliminary injunction to two nursing students who sought religious exemptions from the COVID vaccination requirement they faced in order to complete their 3-day clinical rotation. Originally the school required all students to comply with the placement requirements of its most stringent clinical partner, but later modified this for students doing their rotation at a clinic that had less stringent standards. However this did not help plaintiffs since their clinic required universal vaccination with no religious exemptions. The court held that under Arizona's Free Exercise of Religion Act, the school had not shown that it met the compelling interest/ least restrictive means test.  It undermined its interest in preventing the spread of COVID by allowing religious exemptions when students were assigned to rotations at clinics which did not mandate vaccination. It also had options such as simulated clinical experiences that could be offered as accommodations. The court applied a similar strict scrutiny analysis to plaintiffs' 1st Amendment free exercise claim, finding that the school's policy is not a generally applicable one since in at least one case the school provided an alternative to in-person clinicals.

Mississippi City Is Sued Over Refusal To Approve Mosque Site Plan

Suit was filed yesterday in a Mississippi federal district court alleging that the City of Horn Lake denied approval of the site plan for a proposed mosque because of religious animus. The suit alleges violation of various provisions of RLUIPA as well as the 1st Amendment. The complaint (full text) in Abraham House of God and Cemetery, Inc. v. City of Horn Lake, (ND MS, filed 11/3/2021) alleges in part:

Despite the pretextual excuses for their decision, Board members did not work very hard to hide the true reason they denied approval for the project—anti-Muslim prejudice. As then Alderman John E. Jones Jr. told the local newspaper: “I don’t care what they say, their religion says they can lie or do anything to the Jews or gentiles because we’re not Muslims.” In making his motion to reject the mosque’s proposed site plan, Jones ominously warned his fellow Board members, “[I]f you let them build it, they will come. So I think we need to stop it before it gets here.”...

In sum, what should have been an uncomplicated approval of the site plan for the Abraham House of God foundered in a storm of anti-Muslim bias.

ACLU of Mississippi issued a press release announcing the filing of the lawsuit.

Suit Seeking Permission For Sidewalk Proselytizing Moves Ahead

In Peters v. Metropolitan Government of Nashville & Davidson County, Tennessee, (MD TN, Nov. 1, 2021), a Tennessee federal district court allowed plaintiffs who were prevented from religious proselytizing in areas, including the plaza and sidewalks, outside Nashville's Bridgestone Arena to move ahead with most their 1st and 14th Amendment, and failure-to-train, claims. The court said in part:

Drawing all reasonable inferences in favor of the Plaintiffs, it is reasonable to infer that Metro police officers were enforcing the Arena Policies with the approval or direction of the Metro legal department. At the motion to dismiss stage, this is sufficient to allege plausibly the existence of a municipal policy or custom.

2nd Circuit Hears Arguments On New York Vaccine Mandate

The U.S. 2nd Circuit Court of Appeals yesterday heard oral arguments in Dr. A v. Hochul. (Audio of oral arguments (mp3 file download)). In the case, a New York federal district court issued a preliminary injunction to health care workers who object to the elimination of religious exemptions from New York's requirement that health care workers be vaccinated against COVID. (See prior posting.) The case was consolidated for oral argument with We the Patriots USA, Inc. v. Hochul which poses similar issues. (Memorandum of Law ).

Washington Vaccine Mandate Upheld Over Free Exercise Challenge

 In Wise v. Inslee, (ED WA, Oct. 25, 2021), a Washington federal district court refused to enjoin Washington state's COVID vaccine mandate for for educators, healthcare workers, and state employees and contractors. One claim was that the mandate violates free exercise rights. The mandate recognizes that individuals may be entitled to disability related or religious accommodations under various anti-discrimination statutes. According to the court:

Plaintiffs appear to argue Proclamation 21-14 is facially neutral but not generally applicable because it essentially creates “an unlawful faith-based barrier to gainful employment.”....

As Defendants rightly indicate, because there are no exemptions for political, personal, or other objections, if anything, the Proclamation encourages religious practice....   Plaintiffs cannot demonstrate a discriminatory application solely because they disagree with the availability of accommodations. Plaintiffs have failed to demonstrate how the Proclamation is not generally applicable....

Plaintiffs’ objections to the Proclamation relate primarily to their disagreement with Defendants’ judgment regarding public health, which is insufficient to overcome the constitutionality of Defendants’ actions in enacting and promulgating the Proclamation, regardless of which level of scrutiny is applied.

Center Square reports on the decision.

Christian Student Group Challenges University's Non-Discrimination Policy

Suit was filed this week in a Texas federal district court by a Christian student organization at the University of Houston challenging the University's non-discrimination policy that led to a denial of recognition of the group as a Registered Student Organization. The complaint (full text) in Ratio Christi at the University of Houston- Clear Lake v. Khator, (SD TX, filed 10/25/2021), contends that the University violated the 1st and 14th Amendments by:

a. Denying Ratio Christi registered status because it requires that its officers, who have religious responsibilities, share the organization’s religious beliefs and support its purposes;

b. Conditioning a student organization’s access to campus resources and student services fee funding on a system where UHCL officials have unbridled discretion... [and [c]] must consider multiple content- and viewpoint-based factors; and

d. Compelling Plaintiffs to pay student service fees into a system that is viewpoint discriminatory.

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

UPDATE: ADF announced on Oct. 29 that the University has now recognized Ratio Christi as a Registered Student Organization.

Home-Based Synagogue Sues Over Zoning Restrictions

Suit was filed this month in an Ohio federal district court by a home-based synagogue in a Cleveland suburb alleging that the city's land use regulations violate the Religious Land Use an Institutionalized Persons Act, as well as the federal and state constitutions. The complaint (full text) in Aleksander Shul v. City of University Heights, Ohio, (ND OH, filed 10/13/2021), alleges in part:

Since 2009, Rabbi Shnior Zalman Denciger ... has engaged in prayer services at his residence.... The Property has become known throughout the City as the “Aleksander Shul,” ... that offers Orthodox Jewish prayer services in the Polish Chassidic style, and according to the unique customs of the Aleksander Chassidic sect, which was decimated by the Nazis during the Holocaust.

The City for many years permitted the Aleksander Shul to operate informally at the Property. For many residents of the City, the Aleksander Shul is the only place for them to exercise their religion because, pursuant to their Orthodox Jewish beliefs, they do not travel in cars on the Sabbath....The City, however, has taken various actions to shut down Orthodox Jewish shuls, including the Aleksander Shul, and the City’s zoning scheme makes it impossible to locate any parcel within the City where a place of worship can legally operate.

News 5 Cleveland has additional background on the lawsuit.

Canadian Court Upholds Job Program Funding Limited To Groups Supporting Abortion Rights

In Right to Life Association of Toronto v. Canada , (Fed.Ct., Oct. 22, 2021), Canada's Federal Court in a 63-pagae opinion upheld a requirement in the 2018 Canada Summer Jobs program that required organizations applying for funding to attest that they respected individual human rights, Charter rights and reproductive rights. A right-to-life organization and individuals associated with it claimed that the attestation went beyond the Ministry's authority, was added at the behest of an abortion rights lobby, and infringes their freedom of religion and of speech. The court said in part:

[191] As found, the Attestation was a reasonable policy decision and within the Minister’s authority in accordance with the DESDA [Department of Employment and Social Development Act]. The decision to add the Attestation was not made with a closed mind, for improper purposes, or based on irrelevant considerations.

[192] The effect of the Attestation restricted or limited the Applicants’ rights to freedom of religion and protection against compelled speech, but only minimally and only in the context of the application for 2018 CSJ [Canadian Summer Jobs] funding. The limitation on the Applicants’ Charter rights reflects a proportionate balancing with the objectives of the DESDA and the CSJ program.

National Post reports on the decision.

Justice Breyer Refuses To Enjoin Maine Vaccine Mandate Pending Appeal

As previously reported, a Maine federal district court rejected claims by health care employees that Maine violated their free exercise rights when it eliminated religious exemptions from its COVID vaccine mandate for health care workers. The 1st Circuit refused to issue an injunction pending appeal, and plaintiffs sought similar relief from the U.S. Supreme Court through a filing with Justice Breyer. Yesterday in John Does 1-2 v. Mills, Justice Breyer issued an Order reading:

The application is denied without prejudice to applicants filing a new application after the Court of Appeals issues a decision on the merits of the appeal, or if the Court of Appeals does not issue a decision by October 29, 2021.

AP reports on developments.

Class Action Challenges Denials Of Religious Exemptions From Federal COVID Vaccine Mandate

A class action lawsuit was filed yesterday in a Florida federal district court on behalf of military personnel, federal employees federal civilian contractors who have been denied a religious exemption from the federal government's COVID vaccine mandate. The complaint (full text) in Navy Seal I v. Biden, (MD FL, filed 10/15/2021) alleges in part:

Plaintiffs ... face a deadline under the Federal COVID-19 Vaccine Mandate to receive a COVID-19 vaccine that violates their sincerely held religious beliefs, and have been refused any religious exemption or accommodation....

Plaintiffs all have sincerely held religious beliefs, rooted in Scripture, that preclude them from complying with the Federal COVID-19 Vaccine Mandate because of the connections between the various COVID-19 vaccines and the cell lines of aborted fetuses, whether in the vaccines’ origination, production, development, testing, or other inputs. Plaintiffs also have sincerely held religious beliefs, rooted in Scripture, that their bodies are temples of the Holy Spirit and that they cannot place anything into their Temples without confirmation and conviction from the Holy Spirit.

The suit seeks a temporary restraining order and preliminary and permanent injunctions, claiming violations of the Free Exercise Clause, RFRA and the Federal Food, Drug and Cosmetic Act. Liberty Counsel issued a lengthy press release announcing the filing of the lawsuit.

Maine's Vaccine Mandate Without Religious Exemption Upheld

In Jane Does 1-6 v. Mills, (D ME, Oct. 13, 2021), a Maine federal district court rejected claims by health care employees that Maine violated their free exercise rights when it eliminated religious exemptions from its COVID vaccine mandate for health care workers. The court, denying a preliminary injunction, said in part:

Here, the Rule does not compel the Plaintiffs to be vaccinated against their will, and the Plaintiffs have, in fact, freely exercised their religious beliefs by declining to be vaccinated. This is not to minimize the seriousness of the indirect consequences of the Plaintiffs’ refusal to be vaccinated, as it affects their employment. Nonetheless, the Rule has not prevented the Plaintiffs from staying true to their professed religious beliefs....

The medical exemption at issue here was adopted to protect persons whose health may be jeopardized by receiving a COVID-19 vaccination. The exemption is rightly viewed as an essential facet of the vaccine’s core purpose of protecting the health of patients and healthcare workers, including those who, for bona fide medical reasons, cannot be safely vaccinated. Because the medical exemption serves the core purpose of the COVID-19 vaccine mandate, it does not reflect a value judgment prioritizing a purely secular interest ...—over religious interests.

In addition, the vaccine mandate places an equal burden on all secular beliefs unrelated to protecting public health—for example, philosophical or politically-based objections to state-mandated vaccination requirements—to the same extent that it burdens religious beliefs....

The court rejected plaintiffs' Title VII failure to accommodate claim by concluding that plaintiffs had not exhausted their administrative remedies.

UPDATE: After the 1st Circuit refused to issue an injunction pending appeal, plaintiffs filed a Motion For Writ of Injunction Pending Appeal with the U.S. Supreme court on Oct. 15. (Liberty Counsel press release.)

Suit Uniquely Brings Together Issues of Abortion and Vaccines

Suit was filed this week in a California federal district court challenging California's recently enacted SB 742 which creates a 30-foot floating buffer zone to prevent harassment or interference with any person who is entering or exiting a vaccination site. The buffer zone applies to anyone within 100 feet from the vaccination site entrance. The complaint (full text) in Right To Life of Central California v. Bonta, (ED CA, filed 10/13/2021), raises the challenge in a unique factual context. Right to Life is an organization that attempts to dissuade women from having abortions and which provides support to pregnant women and those who have had abortions. Its Outreach Center is located next door to a Planned Parenthood clinic and its staff regularly approaches women who are entering Planned Parenthood. The new law prevents this-- even when outreach staff is on its own property-- because the contiguous Planned Parenthood Center offers HPV vaccine. The complaint alleges that the new law violates plaintiff's 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.

Suit Challenges Connecticut Regulation Of Limited Services Pregnancy Centers

Suit was filed this week in a Connecticut federal district court challenging a Connecticut Public Act 21-17 that prohibits deceptive advertising practices by limited services pregnancy centers which are facilities that do not provide or refer for abortions or emergency contraception. The complaint (full text) in Pregnancy Support Center, Inc. v. Tong, (D CT, filed 10/12/2021), alleges that the law violates plaintiff's free speech, expressive association, free exercise, equal protection and due process rights. It contends in part:

The Act ... is informed by hostility toward pregnancy services centers’ religious beliefs and pro-life viewpoint, and it targets pregnancy service centers’ disfavored religious beliefs for punishment.

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