New York Enjoined Over Elimination of Religious Exemptions In Vaccine Mandate

In Dr. A v. Hochul, (ND NY, Oct. 12, 2021), 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. The court concluded that the absence of an exemption conflicts with the anti-discrimination provisions of Title VII and with the Free Exercise clause.  The court said in part:

What matters here is not whether a religious practitioner would win or lose a future Title VII lawsuit. What matters is that plaintiffs’ current showing establishes that § 2.61 has effectively foreclosed the pathway to seeking a religious accommodation that is guaranteed under Title VII.....

The court also concluded that the law is neither neutral nor generally applicable. The state's original vaccine mandate included both medical and religious exemptions. Subsequently religious exemptions were eliminated. The court said in part:

This intentional change in language is the kind of “religious gerrymander” that triggers heightened scrutiny.

The court had previously issued a temporary restraining order in the case. (See prior posting.) Liberty Counsel issued a press release announcing the decision. AP reports on the decision.

 

Wyoming Supreme Court Rejects Nun's Claim That She Was Engaged In Ritual Of Mortification

In ASM v. State of Wyoming, (WY Sup. Ct., Oct. 12, 2021), the Wyoming Supreme Court rejected appellant's claim that the state violated her free exercise rights when it ordered her involuntary hospitalization after she began injuring herself while in detention on arson charges. Appellant (ASM) claimed that she is a Catholic nun and that she was engaged in the Catholic ritual of mortification when she scratched skin off her face. According to the Court, the psychiatrist who examined ASM explained her conduct in part as follows:

Dr. Schaaf was aware of ASM’s religious beliefs but believed that she “engage[d] [in] and promote[d] religious beliefs as a way to manipulate others around her.” He was also aware of some form of self-chastisement in Catholicism, but opined that it did not fit the way ASM chose to self harm.... Further, ASM’s self-harming behaviors correlated with many occasions when she contacted police officers to report being assaulted when she had in fact been hitting herself. He explained that “at some level [ASM] engage[d] in self[-]harm behaviors not as a way to express herself in a spiritual sense but to again manipulate.” That manipulation was due to her personality disorder.

The Court concluded:

... [E]ven assuming ASM held a sincere religious belief about the Catholic ritual of mortification, she failed to establish that she was engaged in such practice when she injured herself in the detention facility.

Police Officer Who Prayed Outside Abortion Clinic Sues Over Suspension From Duty

An officer in the Louisville, Kentucky police department this week filed suit in a Kentucky federal district court seeking damages for the Department's four-month suspension of him. The suspension was in effect during an extended investigation of the officer's praying outside an abortion clinic while in uniform, but before he went on duty for the day. He was ultimately cleared of any violation of rules.  The complaint (full text) in Schrenger v. Shields, (WD KY, filed 10/4/2021) alleges violations of the 1st and 14th amendments as well as of Title VII, and state civil rights laws. It also alleges a claim for intentional infliction of emotional distress. WDRB News, reporting on the lawsuit, says:

EMW staff said the officer intimidated patients and medical staff while wearing his uniform and gun.

Surveillance video from the clinic showed Schrenger in a marked police cruiser. He marched outside of the clinic for approximately 45 minutes, at one point holding a sign that read "pray to end abortion."

6th Circuit: Christian Student Athletes Wrongly Denied Exemption From COVID Vaccine Mandate

In Dahl v. Board of Trustees of Western Michigan University, (6th Cir., Oct. 7, 2021), the U.S. 6th Circuit Court of Appeals upheld, pending appeal, a district court's injunction barring Western Michigan University from enforcing its COVID vaccine mandate against 16 Christian student athletes who had applied for religious exemptions. The university requires student athletes to be vaccinated, but provides for medical and religious exemptions. Plaintiffs here however were denied a religious exemption. The court said in part:

[W]here a state extends discretionary exemptions to a policy, it must grant exemptions for cases of “religious hardship” or present compelling reasons not to do so....

True, the University did maintain plaintiffs’ athletic scholarships and did not formally dismiss them from their teams. But that is not the same thing as granting an exception from the University’s policy of conditioning “full involvement in the athletic department” on vaccination status. After all, the purported exception plaintiffs received did not allow them to play college sports. Yet playing on the team (and not just receiving a scholarship) is their goal, a point the University itself recognized....

Because the University’s policy is not neutral and generally applicable, we analyze the policy through the lens of what has come to be known as “strict scrutiny.” ... The University’s interest in fighting COVID-19 is compelling..... But the University falters on the narrow tailoring prong. For one, public health measures are not narrowly tailored if they allow similar conduct that “create[s] a more serious health risk.”... That is the case at the University, which allows non-athletes—the vast majority of its students—to remain unvaccinated. One need not be a public health expert to recognize that the likelihood that a student-athlete contracts COVID-19 from an unvaccinated non-athlete with whom she lives, studies, works, exercises, socializes, or dines may well meet or exceed that of the athlete contracting the virus from a plaintiff who obtains a religious exemption to participate in team activities....

Fox2Detroit reports on the decision.

Woman Required To Remove Hijab Loses Suit Against Security Guard and County

In Niblett v. Universal Protection Service, LP, (CD CA, Oct. 5, 2021), a California federal district court dismissed a damage action by a Muslim woman who was required by a security guard to remove her hijab in order to enter Los Angeles County's Department of Public Social Services building. The court dismissed on qualified immunity grounds the suit against the security guard and his employer that were hired to provide security for the county building, saying in part:

Assuming that Rodriguez and UPS were acting under color of state law when they exercised their authority to control access to a County building, which the Court does not decide, Plaintiff has not alleged a violation of any clearly established First Amendment right. Plaintiff ... cites no authority whatsoever holding that requiring someone to remove a hijab to pass through a metal detector violates the First Amendment.

Plaintiff's suit against the County was dismissed for failure to show a policy or practice of constitutional violations, saying in part:

Plaintiff does not allege that before her encounter with Rodriguez any County employee or agent had ever forced a Muslim woman to remove her hijab in any context, much less that County employees and agents had a widespread practice of requiring Muslim women to remove their hijabs in order to pass through security screenings at County buildings. Similarly, she does not allege facts suggesting that the County knew of such a practice and endorsed it or had reason to know further training was required about allowing hijabs to be worn through metal detectors.

Cert. Denied In COVID, Chaplaincy and Abortion Cases

Today the U.S. Supreme Court issued its lengthy (66-page) first-day-of-the-Term Order List denying review in several hundred cases. It includes the denial of certiorari in the following:

Calvary Chapel of Bangor v. Mills (Docket No. 20-1346): In the case, the 1st Circuit Court of Appeals dismissed a church's interlocutory appeal challenging the Maine governor's COVID Orders limiting attendance at faith-based events. (See prior posting.)

Chaplaincy of Full Gospel v. Department of Navy (Docket No. 20-1794): A case in litigation for over 20 years involving allegations by non-liturgical Protestant chaplains of discrimination against them by selection boards that control promotions and early retirements of Navy chaplains. (See prior posting.)

Schmitt v. Planned Parenthood (Docket No. 21-3): A challenge to Missouri  HB 126 imposing Down Syndrome and Gestational Age limits on abortions. The Supreme Court noted: "After this petition was filed, the United States Court of Appeals for the Eighth Circuit withdrew the panel opinion from which the petition sought certiorari. Accordingly, given the absence of any opinion for our review at this time, the petition is denied  without prejudice to the filing of a new petition by either party following the Eighth Circuit’s final disposition of the case."

Kentucky Governor Has Qualified Immunity From Church's Damage Suit Over COVID Orders

In Pleasant View Baptist Church v. Beshear, (ED KY, Sept. 30, 2021), a Kentucky federal district court held that Kentucky's governor has qualified immunity from a damage action against him brought by a church that objected to his COVID Orders that temporarily suspended in-person classes in public and private schools. Plaintiff sought compensatory and punitive damages. The court said in part:

After examining the applicable precedent, particularly in light of a global pandemic, Pleasant View cannot demonstrate that Governor Beshear’s issuance of Executive Order 2020-969 violated a clearly established constitutional right, and qualified immunity will be granted on that basis. In fact, courts across the country have addressed qualified immunity for government officials at the 12(b)(6) stage regarding Covid-19 measures and found government officials to be immune from suit in their personal capacities.

The court found that plaintiff's claims for declaratory relief are moot.

Rhode Island Vaccine Mandate, Silent On Religious Exemptions, Is Upheld

In Dr. T v. Alexander-Scott, (D RI, Sept. 30, 2021), a Rhode Island federal district court refused to issue a temporary restraining order to prevent enforcement of a Rhode Island Department of Health Emergency Regulation that requires all healthcare workers (except if medically exempt) to be vaccinated against COVID-19. Plaintiffs challenge the absence of a provision for religious exemptions.  Rejecting plaintiffs' 1st Amendment challenge, the court held that the regulation is a neutral law of general applicability. Responding to plaintiffs' claim that the Regulation is in conflict with Title VII, the court said in part:

Nothing in the language [of the Regulation] prevents any employer from providing a reasonable accommodation to an employee who seeks one in accord with their sincerely held religious beliefs. Indeed, the Regulation is silent on the issue of religious exemptions. Title VII requires employers to accommodate religious beliefs, practices, or observances only to the extent that doing so would not impose “undue hardship” on the employer.... While the Regulation may make it more difficult for employers to accommodate religious objections; it does not create a “physical impossibility.”

Limited Religious Exemptions From Vaccine Mandate Challenged

Suit was filed this week in a Colorado federal district court challenging provisions limiting religious exemptions from the University of Colorado Medical School's vaccine mandate.  The school offers a religious exemption only to those whose objections are based on a religious belief whose teachings are opposed to all immunizations. The complaint (full text) in Jane Doe, M.D. v. University of Colorado,(D CO, filed 9/29/2021), says in part:

[The policy] imposes two necessary conditions to ... any religious accommodation, namely:

a. ... [A] sincere religious belief that opposes acceptance of “all immunizations” and vaccines; and

b. That the person requesting a religious accommodation be a member of an organized religion whose tenets include a hierarchically promulgated, authoritative position on the moral liceity of “all immunizations” and vaccines....

Both conditions are clearly forbidden by the Establishment, Free Exercise, and Equal Protection clauses of the United States constitution and the Religious Freedom provisions of the Colorado constitution.... [They] privileg[e] hierarchically prescribed religious belief over autonomously prescribed (yet sincerely held) religious belief.

Thomas More Society issued a press release announcing the filing of the lawsuit.

Universal Life Church Can Move Ahead With Suit Over Nevada Marriage Solemnization Law

In Universal Life Church Monastery v. Clark County Nevada, (D NV, Sept. 19, 2021), a Nevada federal district court allowed the Universal Life Church (ULC) which ordains ministers online to move ahead with its equal protection challenge to the refusal of the county to allow its ministers to solemnize marriages. A law—which was in effect only during 2016-2017—required a religious organization to be incorporated, organized or established in the state in order for it to be able to certify its ministers to perform weddings. The court rejected the Church’s free exercise claims, saying in part:

[A]n entity, organization, or person has no First Amendment free exercise right to perform civil marriages….. The Court thus finds that Plaintiff ULC does not have standing to bring a First Amendment Free Exercise claim.

Similarly it rejected ULC’s free exercise claim under the state constitution, and its due process claim, saying in part:

The plain language of ... [the Nevada Constitution] is directed to the “religious profession and worship” and makes no mention of the civil law process of solemnizing marriages. Because this language does not explicitly or implicitly create a claim, there is no standing for a religious organization to bring a free exercise claim for not being included in a civil legal process.

The court also rejected ULC’s procedural due process argument. However it refused to dismiss ULC’s equal protection claim, saying in part:

ULC presented evidence that another similarly situated non-traditional church ... was able to satisfy requirements solely because its listing on the Nevada Secretary of State website contained a checkbox showing it was registered as a religious organization. Therefore, Plaintiff asserts that Defendants implemented its approval process in a discriminatory manner.... [W]hether ULC provided the requested documents ... is a genuine dispute of material fact. The Court therefore denies summary judgment as to both parties.

Right-Wing Catholic Group Sues Over Cancellation Of Its Protest Rally

Suit was filed yesterday in a Maryland federal district court by the right-wing Catholic group Church Militant against the city of Baltimore for requiring the cancellation of Church Militant's prayer rally scheduled to be held across from the U.S. Conference of Catholic Bishops Fall General Assembly. The rally was titled "Bishops: Enough Is Enough." The complaint (full text) in St. Michael's Media, Inc. v. City of Baltimore, (D MD, filed 9/13/2021), alleges that the cancellation violates the group's free speech, free exercise, free association and Establishment Clause rights, saying in part:

The purpose of the rally is to engage in protected speech criticizing elements of the power structure of the Catholic Church in a situation where the speech would reach the Church's leadership.

Baltimore Brew reports on the lawsuit.

Suit Challenges Absence Of Religious Exemptions In New York's Vaccine Mandate For Health Care Workers

Suit was filed Friday in a New York federal district court by New York health care workers challenging the absence of religious exemptions in New York state's mandate that all health care workers be vaccinated against COVID-19. The complaint (full text) in John Doe I v. Hochul, (ED NY, filed 9/10/2021) and the accompanying motion and memorandum of law (full text) seeking a temporary restraining order and preliminary injunction allege free exercise, equal protection and Title VII violations, among others. Plaintiffs allege in part:

Plaintiffs’ sincerely held religious beliefs, rooted in the above Scriptures, preclude them from accepting any one of the three currently available COVID-19 vaccines derived from, produced or manufactured by, tested on, developed with, or otherwise connected to aborted fetal cell lines.

The suit, filed by Liberty Counsel (press release) is similar to one filed by the same organization last month against the state of Maine. (See prior posting.) Yesterday's New York Times carried a lengthy article on the growing reliance on religious objections to COVID-19 vaccinations.

UPDATE: A similar suit was filed on Monday in the Northern District of New York on behalf of health care personnel, brought by the Thomas More Society.  Dr. A. v. Hochul, (ND NY, filed 9/13/2021) (full text of complaint).

Suit By Anti-Abortion Protesters Seeking To Chalk Slogan On DC Streets Is Dismissed

In Frederick Douglass Foundation, Inc. v. District of Columbia, (D DC, Sept. 1, 2021), the D.C. federal district court faced on a motion to dismiss the nearly identical questions that it decided in the case in March when it denied a preliminary injunction to anti-abortion protesters who wished to paint or chalk D.C. streets with the slogan "Black Pre-Born Lives Matter." Now the court dismissed plaintiffs' claims that enforcing ordinances prohibiting the defacing property against them but not against racial-justice protesters violated their free exercise and free speech rights. Discussing plaintiffs' RFRA claim, the court said in part:

Taking as true ... allegations that the individual Plaintiffs hold religious beliefs about abortion that motivate their organizing and other activities, Plaintiffs still do not allege any facts to support the claim that painting or chalking the street is needed to express those beliefs.

Moving to plaintiffs' 1st Amendment free exercise claim, the court said in part:

As with their RFRA claim, the individual Plaintiffs allege only that they “share sincerely held religious beliefs” about the preciousness of life and “engage in pro-life advocacy and witness as part of” those beliefs.... Taken as true, this statement does not establish that the inability to paint or chalk substantially burdened their religious exercise.

Mask Mandate Did Not Violate Jewish Student's Rights

In Zinman v. Nova Southeastern University, Inc., (SD FL, Aug. 30, 2021), a Florida federal magistrate judge recommended dismissing a suit by a law student against his law school and several other defendants challenging on religious grounds COVID-related mask mandates. The court described plaintiff's claim:

Plaintiff, who is Jewish, contends that the mask mandates require actions that run contrary to his religious beliefs. Specifically, he alleges that Judaism prohibits idolatry ... and that complying with mask mandates would be tantamount to worshiping false idols – i.e., the “so-called  ‘experts’ who claim to be able to save lives if people simply obey their commands without question.”

The magistrate judge ruled that Title VI of the 1964 Civil Rights Act only covers discrimination on the basis of race, color or national origin, and does not cover religious discrimination. He went on:

Even if the Court were to assume that one’s race or national origin can be “Jewish” for purposes of a Title VI claim, Plaintiff fails to include factual allegations to show that Nova’s mask mandate was discriminatory from a racial or national origin perspective. That is because Plaintiff implies that the issue with the mask mandate is that compliance with it is tantamount to worshiping false idols, and that it is impermissible for Jewish people to worship idols.... However, this issue pertains to a religious belief, not a racial characteristic. If the Court were to accept Plaintiff’s argument, then one who discriminates against a Jewish person would automatically be liable for discrimination based on race, religion, and national origin, without any regard to what the nature of the discriminatory act was. Such a broad and overgeneralized position, however, is untenable.

The magistrate also concluded that plaintiff's free exercise rights were not violated because the mask mandates were neutral and generally applicable requirements that are subject only to rational basis review. He also found no free speech violation, saying in part: "neither wearing or not wearing a mask is inherently expressive."

Suit Claims Mask Mandates Violate Free Exercise Rights and Establishment Clause

In a wide-ranging 128-page complaint, a woman who alleges that her medical conditions make it dangerous for her to wear a face mask filed suit in an Indiana federal district court earlier this month against 16 separate defendants challenging the legality of COVID- related mandates or recommendations to wear cloth face masks. Defendants include the CDC, the FDA, Dr. Anthony Fauci, the governor of Indiana, state and local health departments, local officials and several private businesses. Among the numerous challenges, the complaint (full text) in Reinoehl v. Centers for Disease Control and Prevention, (ND IN, filed 8/18/2021), includes these state and federal free exercise and federal Establishment Clause claims:

418. Non-medical masks have been used since ancient times in pagan religious ceremonies to ward of evil spirits and prevent illness....

421. Wearing talismans and other pagan, non-medical masks is against Plaintiff's religious beliefs.

422. Mandating everyone wear non-medical masks to prevent disease when the mask manufacturers cannot make claims they prevent disease transmission is the same as the State establishing a religion in which the Mask Deity prevents its wearers from becoming infected with disease.

423. The State cannot mandate the Plaintiff follows its religion. Plaintiff has the right to freely exercise her religion according to the dictates of her own conscience.

Friendly Atheist blog has more on the lawsuit.

Meanwhile, elsewhere in the country novel religious freedom arguments are being asserted to avoid mask mandates.  According to Fox47 News, a Mason, Michigan mother is seeking a religious exemption from a school mask requirement for her children based on a verse from 2 Corinthians, Chap. 3: "But when one turns to the Lord, the veil is removed..."

Washington Conversion Therapy Ban Upheld

In Tingley v. Ferguson, (WD WA, Aug. 30, 2021), a Washington federal district court dismissed First Amendment challenges by a family therapist to a Washington state statute that prohibits licensed counselors in treating minors from engaging in "conversion therapy" aimed at changing sexual orientation or gender identity. The court held that performing conversion therapy is "conduct", not speech. According to the court, the law still allows therapists to discuss the option of conversion therapy by someone else-- including someone within the exception for practitioners operating under the auspices of religious organizations. The court also rejected plaintiff's religious free exercise argument, saying in part:

[T]he object of the Conversion Law is not to infringe upon or restrict practices because of their religious motivation.... Plaintiff is free to express and exercise his religious beliefs; he is merely prohibited from engaging in a specific type of conduct while acting as a counselor.

Denial Of Religious Exemption From Vaccine Mandate OK'd

In Harris v. University of Massachusetts, (D MA, Aug. 27, 2021), a Massachusetts federal district court rejected student Cora Cluett's objections to the manner in which her request for a religious exemption from the school's COVID-19 vaccine requirement was handled. According to the court:

[Student Affairs Vice Chancellor DeVeau] denied her appeal, since he determined from the substance of her request that she was Roman Catholic and concluded from his research that the COVID-19 vaccine would not violate tenets of that faith.... In interpreting Cluett’s faith to be Roman Catholic, De Veau stated “[i]f this is incorrect, please let me know.”... De Veau then cited a statement from the United States Conference of Catholic Bishops that receiving the COVID-19 vaccines was “morally justified.”

The court held first that insofar as plaintiff was asserting state law claims against state officials, these are barred by the 11th Amendment because Ex parte Young only creates an exception for federal constitutional claims. As to Cluett's 1st Amendment Free Exercise claims, the court said in part:

... UMass is under no constitutional obligation to offer a religious exemption to its Vaccine Requirement. See Nikolao v. Lyon, 875 F.3d 310, 316 (6th Cir. 2017) ....  Certainly, once the university offers religious exemptions, it must not administer them in an unconstitutional way.... Here, however, Cluett has not alleged anything to suggest that Defendants have administered their religious exemption policy in a way that burdens some religions but not others, ... or that Defendants have coerced her in her religious practices....

Ban On Cockfighting Does Not Violate Pastor's Free Exercise Rights

 In Plumbar v. Landry, (MD LA, Aug. 26, 2021), a Louisiana federal district court rejected a free exercise challenge to Louisiana's ban on cockfighting. Plaintiff who challenged the law was pastor of Holy Fight Ministries, a church that believes cockfighting is an essential part of its faith.  The court held that the ban is a neutral, generally applicable statute whose purpose is to prevent animal cruelty.

Suit Challenges Vaccine Mandate Without Religious Exemption

Suit was filed yesterday in a Maine federal district court on behalf of over 2000 health care workers (all filing anonymously) challenging Maine Governor Janet Mills' order that all health care workers be vaccinated against COVID-19, without any accommodation or exception for religious objections. Medical exemptions are still available.  The complaint (full text) in Jane Does 1-6 v. Mills, (D ME, filed, 8/25/2021), alleges free exercise and religious discrimination violations, saying in part:

The dispute in this case is not about what accommodations are available to Plaintiffs or whether accommodation of Plaintiffs’ sincerely held religious objections can be conditioned on compliance with certain reasonable requirements....The dispute is about whether Defendants are required to even consider a request for reasonable accommodation of Plaintiffs’ sincerely held religious beliefs....

Plaintiffs all have sincerely held religious beliefs that preclude them from accepting or receiving any of the three available COVID-19 vaccines because of the connection 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 have all informed their respective employers that they are willing to wear facial coverings, submit to reasonable testing and reporting requirements, monitor symptoms, and otherwise comply with reasonable conditions that were good enough to permit them to do their jobs for the last 18 months with no questions asked.

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

6th Circuit Upholds Michigan's Classroom Mask Mandate

In Resurrection School v. Hertel, (6th Cir., Aug. 23, 2021), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, rejected free exercise, equal protection and due process challenges to Michigan's previous COVID-19 mask order for schools.  The court affirmed the denial of a preliminary injunction sought by a Catholic elementary school. All 3 judges agreed that the case is not moot because the mask requirement might be re-imposed.  The majority, however, held:

[T]he district court ... correctly concluded that because the requirement to wear a facial covering applied to students in grades K–5 at both religious and non-religious schools, it was neutral and of general applicability.

Judge Siler filed an opinion dissenting in part. Detroit News, reporting on the decision, says that the school will seek en banc review.