Christian Pre-School May Get State Aid Without Complying With Non-Discrimination Rules Which Violate Its Beliefs

In Darren Patterson Christian Academy v. Roy, (D CO, Oct. 20, 2023), a Colorado federal district court issued a preliminary injunction barring Colorado from excluding a private Christian pre-school from its Univeral Pre-School Program. The state requires participating schools to agree that they will not discriminate on the basis of gender, race, ethnicity, religion, national origin, age, sexual orientation, gender identity, citizenship status, education, disability, socio-economic status, or any other identity.” The court said in part:

... [T]he Department’s non-discrimination policy likely violates Plaintiff’s rights by interfering with the school’s selection of key employees in accordance with its religious convictions under the “ministerial exception.” ...

Second, Plaintiff has the right to expressive association which the State’s hiring rules likely violate.... The freedom to associate with others also includes the freedom not to associate with others if doing so would compromise the associating group’s expression of beliefs....

Third, the Department’s rules also force Plaintiff to choose between adhering to religious beliefs and risking exclusion from the program or complying with the Department’s rules. In the specific context of excluding religious schools from participation in educational benefits programs, the Supreme Court has thrice held that a state may not exclude religious observers from receiving otherwise available educational funding because of a school’s religious status or practice....

Plaintiff seeks to hire only coreligionists, and to continue internal policies related to gender distinctions rooted in religious beliefs. These polices violate the Department’s non-discrimination standards for participating preschools.... The First Amendment forbids imposing such a choice.

Fourth, the State’s rules are likely not neutral and generally applicable..... They allow both categorical and individualized exemptions that would undermine the government asserted interests, and thereby trigger strict scrutiny.... See Fulton v. City ...

Plaintiff is also likely to succeed on the merits of its Free Speech claim, at least to the extent that the state would require Plaintiff and its staff to use a student’s or employee’s preferred pronouns as a condition of participating in the program.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

State May Regulate Health Care Sharing Ministries

In Gospel Light Mennonite Church Medical Aid Plan v. New Mexico Office of the Superintendent of Insurance, (D NM, Oct. 13, 2023), a New Mexico federal district court refused to enjoin New Mexico's insurance superintendent from regulating Health Care Sharing Ministries. The court held that the state's Insurance Code is a neutral, generally applicable statute, saying in part:

Individual Plaintiffs argue that the Superintendent’s March 26, 2020, press release, --- which cautions consumers about HCSMs and stating that these plans are unauthorized insurance products—is not neutral because it “sends a signal of official disapproval” of Individual Plaintiffs’ religious beliefs.... The Court disagrees....

Applying rational basis review, the court said that it "has little difficulty concluding that state laws mandating compliance with the Insurance Code constitute a legitimate area of governmental concern."

Court Gives Limited Relief to Native Americans Who Object to Park Improvements Project

 In Perez v. City of San Antonio, (WD TX, Oct. 11, 2023), a Texas federal district court held that members of the Native American Church should be given access for religious services to a point on the San Antonio River which is a Sacred Site for them.  Access is limited to 15 to 20 people for no more than an hour on astronomical dates that coincide with their spiritual beliefs.  The court deferred ruling on whether access for all-night peyote ceremonies will be allowed. The court refused to grant plaintiffs' request that the proposed improvements to the park in which the Sacred Site is located be limited so that the spiritual ecology of the Sacred Area would be preserved by minimizing tree removal and allowing cormorants to nest. The court said in part:

The most important part of Plaintiffs’ spiritual ecology is the confluence of the shape of the Mother Waters at the bend of the San Antonio River with the shape of the Eridanus constellation of stars.

Given the current extended drought, the lack of water flow from the Blue Hole Springs and other natural sources, there would be no San Antonio River/Mother Waters but for the City artificially assisting the river by pumping recycled waste water, presumably from the sewer reclamation system.... This creates something of a secular/religious symbiotic relationship between Plaintiffs and Defendant until it rains, the springs come to life and until the reformation and resurrection of the Project Area is complete. Amen.

... [T]he Court heard credible testimony of thousands of egrets, herons, and cormorants and their excrement nesting in the Project Area during their migrations at different times of the year. Once nested, the Migratory Bird Treaty Act precludes removal. The Court finds the bird deterrent operation is in the realm of public health and safety....

... [T]he Court finds the City has met its burden of proving a compelling government interest for public health and safety....

Moreover, Plaintiffs desire possibly to save trees by ordering the City to “reevaluate the Bond Project to develop alternative plans” would, given the lengthy redesign and re-permitting processes, exponentially extend Plaintiffs’ and the public’s presently fettered ability to enjoy the area. The temporary closing becomes semi-permanent. Instead of months, access would likely remain limited for years, as is the case of the faithful who find the Notre Dame Cathedral to be their sacred place and who for several years will have to use alternative places of worship. By its Order, it is the Court’s intent to make the fettered unfettered as soon as reasonably possible. It will be up to the parties to decide how long they wish to delay the unfettered with continuing litigation.

UPDATE: On Oct. 25, 2023, the Texas federal district court denied plaintiffs' emergency motion for an injunction pending appeal. 2023 U.S. Dist. LEXIS 192796.

 

Ban on California's Publicly Funded Home School Program Covering Faith-Based Instruction Challenged

California's public charter school program includes schools that fund independent study home schooling. Parents may use state funds for secular educational materials, but not for religious materials.  A school staff member must approve materials purchased with state funds and must periodically review work samples to assure that state educational standards are met. California Constitution Art. IX, Sec. 8 prohibits the teaching of religious doctrine in public schools, and the California Education Code requires charter schools to be non-sectarian. Suit was filed this week in a California federal district court seeking an injunction that will allow parents to spend instructional funds for faith-based materials and will require schools to accept work samples that derive from a faith-based curriculum.  The complaint (full text) in Woolard v. Thurmond, (ED CA, filed 10/11/2023), alleges that applying state law to prevent disbursement of instructional funds for faith-based materials and refusal to accept faith-based work samples violates plaintiffs Free Exercise and Free Speech rights. First Liberty Institute issued a press release announcing the filling of the lawsuit.

Kansas AG Asks 10th Circuit To End Required Use of Preferred Pronouns

Kansas Attorney General Kris Kobach in an Oct. 6 letter (full text) to the Chief Judge of the U.S. 10th Circuit Court of Appeals asks the court to end the practice of some district and circuit court judges to require references to counsel, parties and witnesses by use of their preferred pronouns.  The letter says in part:

There are lawyers in my office who, for both religious and non-religious reasons, reject the idea of individuals dictating their own applicable pronouns....

The idea that a person can dictate his or her own pronouns based on internal feelings and then expect others to go along with that choice is a quite recent development....  But regardless of the merits of this idea as an abstract matter, enlisting the power of the state to force others to affirm such individual choices or feelings crosses a line and raises major questions regarding compelled speech and the First Amendment.

Many people have religious beliefs that would prevent them from using pronouns that do not correspond to a person’s sex. In Christianity (the most common religion in the United States), this position generally proceeds from interpretations of Genesis 1:27 and other scriptures that speak of a male/female dichotomy among persons. Other major world religions likewise have doctrines that point in the same direction.... To force these individuals to violate their religious beliefs in order to be heard in court is a restriction on their free exercise of religion....

Indeed, “gender identity” is the subject of growing wave of legislation and litigation. So requiring those appearing in court to use (or refrain from using) certain pronouns may reveal a prejudgment on issues in litigation.

The Attorney General's office also issued a press release summarizing the letter.

Reservist Challenges Military's Admonition of Him for His Remarks at Retirement Ceremony

Suit was filed this week in a Texas federal district court by Jace Yarbrough, a Major in the Air Force Reserve, challenging a Letter of Admonition issued to him by the military for the content of remarks he made while speaking, in uniform, at a retirement ceremony for Senior Master Sergeant Duane Fish, an Air Force flight superintendent with whom he worked closely and with whom he shared religious beliefs and values.  The complaint (full text) in Yarbrough v. United States Space Force, (ED TX, filed 10/3/2023), asserts that Yarbrough's Christian faith is central to his worldview, conduct and speech. The complaint describes the remarks at issue as encouraging people to practice the courage and virtue exemplified by SMSgt Fist.  It goes on:

92. In keeping with that theme, [Yarbrough] expressed his personal concerns about the negative impact of politicization within the military.... He worried that “radical” factions in “our wider culture” have “brought the culture war inside the DoD,” and that politicization of the military would be “a death knell for courage and competence.” 

93. To support his views, he drew on the teachings and thought of Eastern Orthodox Christian and writer Aleksandr Solzhenitsyn ... regarding the corrosive cultural consequences of dishonesty and self-deception.... 

94. Mr. Yarbrough gave two examples of objective realities he believes are known intuitively to all persons as persons: 1) “men can’t birth babies” and 2) “boys should not be allowed in girls’ locker rooms.” 

95. He expressed his faith-based belief that forcing people to deny such self-evident beliefs “requires constant . . . self-deception,” which can “habituate [us] to dishonesty” and cause us to lose our “grip on objective reality,” making us “less capable and less effective in our world.... 

96. As part of his warning against politicization, he referenced “recent DoD-wide extremism training” that he had attended, in which he “was relieved to see that [his] teammates recognized that training for what it was, a thinly veiled flex of political power.”...

The suit alleges that the Letter of Admonition, among other things, violated the Religious Freedom Restoration Act, as well the Free Exercise, Free Speech and Establishment Clauses.

First Liberty Institute issued a press release, including a link to the full text of plaintiff's remarks at the retirement ceremony.

Potential Candidate Challenges Religious Oath On New Jersey Candidate Petition Forms

Suit was filed this week in a New Jersey federal district court challenging the New Jersey requirement that candidates filing to run for public office sign an oath that ends with the phrase "so help me God." The complaint (full text) in Tosone v. Way, (D NJ, filed 10/3/2023), alleges that plaintiff, who wishes to run for public office, is unable as a matter of conscience to sign an oath which is religious. Alleging that the current version of the oath violates Article VI of the Constitution, as well as the free speech, free exercise and Establishment Clauses, plaintiff seeks a court order requiring the Secretary of State to provide a form that allows him to run for public office without his swearing "so help me God." New Jersey Monitor reports on the case.

11th Circuit: Buddhist Organization Prevails Under Alabama State Constitution in Zoning Fight

In Thai Meditation Association of Alabama, Inc. v. City of Mobile, Alabama,(11th Cir., Oct. 2, 2023), the U.S. 11th Circuit Court of Appeals partly reversed the summary judgments entered in favor of the city of Mobile at the district court level.  At issue is Mobile's denial zoning approval for a Buddhist organization to use a house in a residential district for religious purposes. The appeals court held that neither party is entitled to summary judgment under RLUIPA because of factual disputes.  It held that the district court correctly dismissed plaintiff's Free Exercise claim because the zoning designation process is neutral and generally applicable. It held however, that the Buddhist organization is entitled to an injunction under the Alabama Religious Freedom Amendment to the state constitution, saying in part:

To begin, we have never held that neighborhood character or zoning are compelling government interests sufficient to justify abridging core constitutional rights....  ... [A]mici also note that generalized, high-level invocations of “zoning” are often used to target minority faith’s land use applications.... These concerns underscore why it is necessary to hold government entities to their burden to state and support a well-defined government interest. 

Here, the City has failed to carry its burden to demonstrate a compelling government interest. The generalized invocations of neighborhood character and zoning fail as a matter of law under our precedents. The City’s invocation of traffic concerns fare slightly better..., but they are unsubstantiated in the record....

Faith-Based Foster Care Agency May Limit Clients to Those with Compatible Religious Beliefs

 In two decisions issued last week, a South Carolina federal district court rejected Establishment Clause challenges to waivers from federal anti-discrimination requirements granted faith-based child placement agencies.  In Rogers v. U.S. Department of Health & Human Services, (D SC, Sept. 29, 2023), plaintiff challenged an Executive Order issued by the governor of South Carolina allowing licensing of religious child placement agencies that worked only with clients who shared their religious beliefs. At issue in the case was the rejection by Miracle Hill Ministries of a foster-parent application submitted by a same-sex couple who belonged to the local Unitarian-Universalist Church. The court rejected plaintiffs' Equal Protection claim because plaintiffs had not identified any state action involved.  It rejected their Establishment Clause claim, saying in part:

Plaintiffs’ legal premise is based on the now abandoned framework of the “Lemon Test” by focusing their argument on the third factor in Lemon regarding an “excessive government entanglement with religion.” ... Instead, based on historical practices and understandings which Kennedy requires, Establishment Clause protections are more likely triggered “when the government use[s] the established church to carry out certain civil functions, often by giving ‘the established church a monopoly over a specific function.’” ...

Plaintiffs identify but misstate three “hallmarks” of “founding-era religious establishments” that “reflect[] ‘forms of coerc[ion]’ regarding ‘religion or its exercise.’”... Stated in full, they are: 1) “the government punished dissenting churches and individuals for their religious exercise,” 2) “the government provided financial support for the established church, often in a way that preferred the established denomination over other churches,” and 3) “the government used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function[.]” ...

Plaintiffs fail to meet their burden to show that these “hallmarks” exist here...

In Madonna v. U.S. Department of Health & Human Services, (D SC, Sept. 29, 2023), plaintiff was rejected by Miracle Hill because she did not share its evangelical-Christian beliefs and could not affirm its statement of faith. Rejecting plaintiff's Establishment Clause claims, the court said in part:

Defendants did not compel Maddonna to sign Miracle Hill’s statement or leave her without an adequate alternative to signing it. To the contrary, Maddonna could foster the same children at any of twenty-six other private agencies in the State... or with the State itself....  Accordingly, Maddonna has not shown “a historically disfavored establishmentarian practice” based on a claim of “subtle and indirect pressure.”...

Maddonna’s attempt to implicate an impermissible religious accommodation is foreclosed by Fulton v. City of Philadelphia, an analogous case in which the Supreme Court found the denial of a similar religious accommodation for foster care agencies burdened the Free Exercise Clause.

Becket issued a press release announcing the decisions.

School Board Member Sues to Vindicate Her Reading of Bible at Board Meetings

Suit was filed this week in an Arizona federal district court by Heather Rooks, a member of the Peoria, Arizona school board, seeking a declaratory judgment to vindicate her practice of quoting Scripture during the period of each Board meeting devoted to members making their own comments.  Advocacy organizations had complained about Rook's practice, and legal counsel to the Board furnished an opinion that reading Scripture during Board meetings violates the Establishment Clause. The complaint (full text) in Rooks v. Peoria Unified School District, (D AZ, filed 9/26/2023) seeks a judicial ruling that plaintiff's practice does not violate the Establishment Clause or the Arizona Constitution, that punishment for her practice violates her free speech and free exercise rights, and that she is entitled to absolute legislative immunity for her recitation of Scripture. Fox News reports on the lawsuit.

Michigan Supreme Court Adopts New Rule Requiring Use of Preferred Pronouns, or Respectful Alternative

In Amendment of Rule 1.109 of the Michigan Court Rules, (MI Sup. Ct., Sept. 27, 2023), the Michigan Supreme Court by a vote of 5-2 adopted a Rule requiring Michigan courts to use the name and personal pronouns listed by parties and attorneys on pleadings in the case when addressing, referring to or identifying a party or attorney orally or in writing. Alternatively, the court may use "other respectful means of address not inconsistent with the individual’s designated salutation or personal pronouns." Two Justices filed opinions concurring in the adoption of the Rule, and two other Justices filed dissents. Justice Welch, concurring, said in part:

[P]eople object to honoring a person’s specified pronouns on the basis that they do not personally agree with the notion that someone can switch genders or be nonbinary. This was the subject of a great deal of the input we received after publishing the proposed amendments. Whether for religious or other reasons, many comments reflected a personal belief that gender could not change. But the rule provides that “other respectful means” can be used to address a party who makes a specific pronoun request. Certainly, asking our judges to be respectful to litigants using other general neutral means (such as addressing a party as “Attorney Smith” or “Plaintiff Smith”) does not force anyone to violate their beliefs.

Justice Bolden concurring said in part:

Some commenters have raised First Amendment concerns, arguing that the amendment compels speech and/or infringes upon religious liberty. However, Code of Judicial Conduct, Canon 2(A) ...requires judges to “accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and [they] should do so freely and willingly.”... Similarly, the United States Supreme Court has explained that government employees have certain limitations on their freedom that they must accept in the workplace....

Justice Zahra, dissenting, said in part:

Some believe that the use of preferred pronouns is simply a matter of courtesy and that those who oppose it are stubborn, perhaps even bigoted. Others, however, believe they should not be compelled, especially under oath and/or in conflict with their deeply held religious beliefs, to affirm a person’s preferred pronouns that are inconsistent with the biological gender on that person’s birth certificate. All told, this is a fluid political debate into which our judicial branch of state government should not wade, let alone dive headfirst and claim to have resolved. Such hubris has no place within the operation of a judicial branch of state government. As aptly stated by the Catholic Lawyers Society of Metropolitan Detroit, “[t]he Court should decline to insert itself into one of the most controversial social issues of our time, declare a winner, dismiss objections as mere products of bigotry, and threaten to punish dissenters whilst ignoring their constitutional rights.” I am deeply troubled by the Court’s willingness to do so.

Justice Viviano, dissenting, said in part:

... [A]ll the arguments that the concurrences employ against the constitutional concerns with the present action could in turn be employed to support the opposite rule. I have my doubts that the majority would be so cavalier about the First Amendment implications of their actions if the shoe was on the other foot.

CBS Detroit reports on the new rule.

Employees Failed to Show Sincere Religious Beliefs for Vaccine Exemptions

In Gardner-Alfred v. Federal Reserve Bank of New York, (SD NY, Sept. 25, 2023), a New York federal district court dismissed RFRA, Title VII and First Amendment claims by two Federal Reserve Bank employees who were denied religious exemptions from the FRB's Covid vaccine mandate.  The court, in a 52-page opinion, concluded that neither Lori Gardner-Alfred nor Jeanette Diaz had demonstrated that their objections to the vaccine were based on sincere religious beliefs. The court said in part:

Gardner-Alfred claims to be a member of the Temple of Healing Spirit, which is a belief system that she describes as “oppos[ing] the invasive techniques of traditional Western medicine.” ...

Defendant argues that no reasonable jury could find that Gardner-Alfred’s objections to the vaccine were grounded in sincerely held religious beliefs.,,,  Defendant argues that there is no evidence Gardner-Alfred enjoyed any relationship with the Temple of Healing Spirit beyond paying for a vaccination exemption package and that her medical history, both before and after she made her request for a religious accommodation, is inconsistent with her alleged religious beliefs....

 No reasonable jury thus would be able to conclude that her claimed religious beliefs were anything other than contrived....

... [T]here is undisputed evidence that Diaz would have a motive to “fraudulently hid[e] secular interests behind a veil of religious doctrine.”... Diaz submitted her accommodation request days after attending a secular anti-vaccination webinar featuring materials entitled “White Paper—Experimental Covid Vaccines,” and “Review of Ivermectin Efficacy.”...  [S]he subscribed to at least eight newsletters, which sent her several hundred emails, from sources opposing the vaccine on secular grounds.... 

There also is evidence of Diaz acting in a manner inconsistent with her claimed religious views.... Diaz concedes that she has on many occasions taken medications and received injections without first checking whether they contain or were made or manufactured with aborted fetal cell lines...

Diaz further does not dispute that the views that she now claims to hold are different from those held by the church of which she claims to be a member..... 

... She bases her objection on the letter she received from the Colorado Catholic Conference, an organization with which she had no prior affiliation and has no current affiliation.... The letter is available for download from the internet from anyone who seeks it....

Physician Assistant Can Move Ahead with Challenges to Her Dismissal for Her Views on Gender Identity

In Kloosterman v. Metropolitan Hospital, (WD MI, Sept. 20, 2023), a Michigan federal district court refused to dismiss a physician assistant's free exercise, equal protection and Title VII religious discrimination and failure to accommodate claims against a hospital that dismissed her for her unwillingness, on religious grounds, to refer gender transitioning patients for various drugs and procedures, or to use pronouns that do not correspond to a patient’s biological sex. Plaintiff asserted that as a Christian she believes that one’s sex is ordained by God and that one should not attempt to erase or to alter his or her sex.

The court concluded in part that:

Plaintiff plausibly alleges that Defendants’ hostility toward her religious beliefs motivated them to terminate her employment.

The court however dismissed certain other claims by plaintiff, including her free speech claim. 

First Liberty Institute issued a press release announcing the decision. 

New Decisions on Covid Vaccine Religious Objection Claims

Decisions have been handed down in the past few days in several cases in which employees who were denied a religious exemption or accommodation from an employer's Covid vaccine mandate have sued:

In Dicapua v. City of New York, (Richmond Cty. NY Sup. Ct., Sept 18, 2923), 16 employees of the Department of Education brought suit.  A New York state trial court held that ten of the employees should have been granted a religious exemption, saying in part:

This Court sees no rational basis for not allowing unvaccinated classroom teachers in amongst an admitted population of primarily unvaccinated students.

In Mora v. New York State Unified Court System, (SD NY, Sept. 19, 2023), a New York federal district court dismissed a suit by a Poughkeepsie City Court Judge, saying in part:

Here, the Vaccine Mandate has been repealed, and plaintiff has been reinstated to his full in-person duties. Therefore, plaintiff has not alleged an ongoing violation of federal law, or a need for prospective relief...

Damage claims were  dismissed in part on the basis of 11th Amendment immunity and in part because Title VII does not apply to government appointees on the policymaking level. His Free Exercise claim was denied because the vaccine mandate was a neutral, generally applicable rule. Retaliation and equal protection claims were also rejected.

In Trusov v. Oregon Health & Science University, (D OR, Sept. 20, 2023), an Oregon federal district court dismissed some of the claims brought by a registered nurse who was denied a religious accommodation, and deferred consideration of another of her claims.  The court said in part:

Regarding Defendants’ challenge to Plaintiff’s First Claim, alleging religious discrimination in employment, the Court finds that OHSU’s arguments about undue hardship must await a motion for summary judgment, at which time the Court may consider matters outside the pleadings and, if necessary, motions to exclude expert testimony. Regarding Defendants’ challenge to Plaintiff’s second claim brought under § 1983 against the individual Defendants, the Court dismisses that claim under the doctrine of qualified immunity. Regarding, Defendants’ challenge to Plaintiff’s request for prospective declaratory relief, the Court dismisses that request for lack of standing.

In Mathisen v. Oregon Health & Science University, (D OR, Sept. 19, 2023), an Oregon federal district court rejected claims brought by a research laboratory manager who was denied a religious exemption as well as a medical exemption. The court said in part:

In support of their motion to dismiss, Defendants argue that Plaintiff’s Title VII claim fails because OHSU offered to accommodate Plaintiff’s religious beliefs by offering an accommodation—masking—to which Plaintiff has alleged no objection based on religion....

Plaintiff’s assertion that masking would not promote safety is a secular objection, not a religious one. That objection, therefore, does not establish that the offered accommodation to her religious objection was not reasonable for purposes of her claim of religious discrimination.

Other of Plaintiff's claims were dismissed on qualified immunity and standing grounds.

Teachers Get Religious Exemption from School Policy Barring Disclosure to Parents of Gender Identity Changes

In Mirabelli v. Olson, (SD CA, Sept. 14, 2023), a California federal district court granted a preliminary injunction prohibiting the Escondido Union School District from taking any adverse employment action against two teachers who have religious objections to the school district's policy of faculty confidentiality when communicating with parents about a student's change in gender identity. The court said in part:

The result of the new EUSD policy is that a teacher ordinarily may not disclose to a parent the fact that a student identifies as a new gender, or wants to be addressed by a new name or new pronouns during the school day – names, genders, or pronouns that are different from the birth name and birth gender of the student. Under the policy at issue, accurate communication with parents is permitted only if the child first gives its consent to the school....

The plaintiffs in this action are two experienced, well-qualified, teachers. The teachers maintain sincere religious beliefs that communications with a parent about a student should be accurate; communications should not be calculated to deceive or mislead a student’s parent....

... Mirabelli believes that the relationship between parents and children is an inherently sacred and life-long bond, ordained by God, in which the parents have the ultimate right and responsibility to care for and guide their children..... In a similar vein, West believes that the relationship between parents and their child is created by God with the intent that the parents have the ultimate responsibility to raise and guide their child. Both Mirabelli and West believe that God forbids lying and deceit...

EUSD contends that the government purpose of protecting gender diverse students from (an undefined) harm is a compelling governmental interest and the policy of non-disclosure to parents is narrowly tailored.... This argument is unconvincing. First, both the Ninth Circuit and the Supreme Court have found overly broad formulations of compelling government interests unavailing.... Second, keeping parents uninformed and unaware of significant events that beg for medical and psychological experts to evaluate a child, like hiding a gym student’s soccer concussion, is precisely the type of inaction that is likely to cause greater harm and is not narrowly tailored. ....

In the end, Mirabelli and West face an unlawful choice along the lines of: “lose your faith and keep your job, or keep your faith and lose your job.”... The only meaningful justification the District offers for its insistence that the plaintiffs not reveal to parents gender information about their own children rests on a mistaken view that the District bears a duty to place a child’s right to privacy above, and in derogation of, the rights of a child’s parents....

[Thanks to Jeffrey Trissell for the lead.]

9th Circuit En Banc: California School District Must Recognize Fellowship of Christian Athletes Clubs

In Fellowship of Christian Athletes v. San Jose Unified School District board of Education, (9th Cir., Sept. 13, 2023), the U.S. 9th Circuit Court of Appeals sitting en banc, in a set of opinions spanning 134 pages, held that Fellowship of Christian Athletes (FCA) is entitled to a preliminary injunction requiring the school district to restore recognition to FCA chapters as student clubs. Because FCA requires its officers to affirm a Statement of Faith and abide by a sexual purity policy, i.e. because a homosexual student could not be an officer of FCA, the District had revoked FCA's recognition. The court said in part:

While it cannot be overstated that anti-discrimination policies certainly serve worthy causes—particularly within the context of a school setting where students are often finding themselves—those policies may not themselves be utilized in a manner that transgresses or supersedes the government’s constitutional commitment to be steadfastly neutral to religion. Under the First Amendment’s protection of free exercise of religion and free speech, the government may not “single out” religious groups “for special disfavor” compared to similar secular groups.... 

The District, rather than treating FCA like comparable secular student groups whose membership was limited based on criteria including sex, race, ethnicity, and gender identity, penalized it based on its religious beliefs. Because the Constitution prohibits such a double standard—even in the absence of any motive to do so—we reverse the district court’s denial of FCA’s motion for a preliminary injunction....

Plaintiffs are likely to succeed on their Free Exercise claims because the District’s policies are not neutral and generally applicable and religious animus infects the District’s decision making.

Judge Forrest filed a concurring opinion contending that the case should be seen as a free-speech care more than a religious freedom case.

Judge Smith filed an opinion concurring in part and dissenting in part, with two other judges partially joining his opinion. Judge Sung filed an opinion concurring in part and dissenting in part. Chief Judge Murguia filed a dissenting opinion, joined in part by Judge Sung.

National Review reports on the decision.

CT Supreme Court Upholds Refusal to Enforce Ketubah in Divorce Action

In Tilsen v. Benson, (CT Sup. Ct., Sept. 5, 2023), the Connecticut Supreme Court upheld a trial court's refusal to enforce the provisions of the parties' ketubah (Jewish marriage document) in setting alimony in a marital dissolution action. The husband, a rabbi, sought enforcement of the ketubah as a prenuptial agreement.  The ketubah provided that any divorce would be "according to Torah law."  Husband contended that meant a 50/50 division of property and no obligation to pay alimony, but conflicting interpretations of Jewish law were presented to the trial court.  The Supreme Court said in part:

... [W]e conclude that the plaintiff’s desired relief violates the establishment clause under the neutral principles of law doctrine. Most significant, the parties’ ketubah is facially silent as to each spouse’s support obligations in the event of dissolution of the marriage, thus leaving the court to determine those obligations from external sources as to Jewish law, namely, the parties’ expert witnesses, whose proffered opinions differed in this case, instantly alerting the court as to the establishment clause dilemma....

The court also rejected husband's argument that refusal to enforce the ketubah violated his free exercise rights by preventing him from divorcing according to Jewish law and denying him the generally available benefit of enforcing a prenuptial agreement only because of the agreement's religious nature.  The court said in part:

... [E]nforcement of this vaguely worded ketubah in the guise of protecting the plaintiff’s free exercise rights would have put the trial court on the horns of an establishment clause dilemma.

Second, the trial court did not deny the plaintiff access to the court or otherwise exact some kind of penalty in connection with his religious beliefs or practices; its decision simply meant that this dissolution action would be governed by generally applicable principles of Connecticut law as expressed in our alimony and equitable distribution statutes. Parties who desire specific tenets of their religious beliefs to govern the resolution of marital dissolution actions remain free to contract for that relief via a properly executed antenuptial, postnuptial, or separation agreement that is specifically worded to express those beliefs in a way that avoids establishment clause concerns under the neutral principles of law doctrine.

8th Circuit Rejects Satanic Temple's Complaint Over Closing Park to Its Display

 In The Satanic Temple v. City of Belle Plaine, Minnesota,(8th Cir., Aug. 30, 2023), the U.S. 8th Circuit Court of Appeals held that the district court was correct in dismissing free speech, free exercise, equal protection, and RLUIPA claims brought by The Satanic Temple (TST) against the City of Belle Plaine.  As summarized by the court:

In March 2017, the City gave two groups permits [to place monuments in Veterans Memorial Park]: the Belle Plaine Veterans Club and the Satanic Temple. The Veterans Club returned the kneeling soldier statue to the Park in April, but the Satanic Temple’s display wasn’t ready yet. While the Satanic Temple’s display was being built, people objected to it being placed in the Park. In June, the Satanic Temple told the City that its display was ready. The City Council then passed a “Recission Resolution,” closing the Park as a limited public forum, terminating both permits, and instructing the Veterans Club to remove its statue.

The court held:

The City closed the limited public forum to everyone, not just speakers with certain views. The Satanic Temple has not plausibly alleged that closing the Park as a limited public forum was unreasonable or viewpoint discriminatory....

...The Satanic Temple has not alleged any facts showing that its religious conduct was targeted for “distinctive treatment.”...

... The Satanic Temple has not plausibly alleged that the City’s resolutions burden its religious conduct or philosophy....

The Satanic Temple has not plausibly alleged that it and the Veterans Club were similarly situated or that it was treated differently. Nor has it plausibly alleged that the Rescission Resolution was discriminatory on its face or had a discriminatory purpose or impact. The City gave a permit to both groups, had no control over the fact that the Veterans Club placed its statue first, and closed the Park as a limited public forum to everyone. So the Satanic Temple has not plausibly alleged an equal protection claim.

Title VII Claim for Denying Religious Exemption from Vaccine Mandate Moves Ahead

In MacDonald v. Oregon Health & Science University, (D OR, Aug, 28, 2023), an Oregon federal district court refused to dismiss a Title VII claim by a former nurse in a hospital's Mother and Baby Unit who was denied a religious exemption from the hospital's Covid vaccine mandate. The hospital argued that because plaintiff's job duties required her to interact with vulnerable pregnant mothers and newborn babies, any accommodation would pose an "undue hardship" on the hospital.  The court pointed out that on a motion to dismiss, unlike on a motion for summary judgment, the court is generally not permitted to consider evidence outside of the pleadings, saying in part:

Accordingly, this Court finds that, at this stage, it is unable to properly consider the extrinsic evidence on which Defendants rely to show either that there were no other viable accommodations to Plaintiff’s vaccination, or that any accommodations would have created an undue hardship consistent with Groff....

... [O]n a fuller evidentiary record, Defendants may be able to satisfy their burden to show that any accommodation would indeed have resulted in a substantial cost to OHSU. But Defendants have not met that burden at this stage.

The court however dismissed plaintiff's 1st Amendment free exercise claim, concluding that defendants had qualified immunity.

Religious or Parental Rights Not Violated By School Classroom Discussion of LGBTQ-Themed Books

In Mahmoud v. McKnight, (D MD, Aug. 24, 2023), a Maryland federal district court refused to issue an injunction to allow parents to opt their public-school children out of classroom reading and discussion of books with LGBTQ themes. Parents claim that the books' messages violate parents' sincerely held religious beliefs.  The court said in part: 

In essence, the plaintiffs argue that by being forced to read and discuss the storybooks, their children will be pressured to change their religious views on human sexuality, gender, and marriage. The Court interprets this argument as an indoctrination claim.... 

The plaintiffs have not identified any case recognizing a free exercise violation based on indoctrination....

Here, the plaintiffs have not shown that the no-opt-out policy likely will result in the indoctrination of their children....

Separate from any indoctrination claim, Mahmoud and Barakat contend their son would be forced to violate Islam’s prohibition of “prying into others’ private lives” and its discouragement of “public disclosure of sexual behavior” if his teacher were to ask him to discuss “romantic relationships or sexuality.”... Forcing a child to discuss topics that his religion prohibits him from discussing goes beyond the mere exposure to ideas that conflict with religious beliefs. But nothing in the current record suggests the child will be required to share such private information. Based on the evidence of how teachers will use the books, it appears discussion will focus on the characters, not on the students.....

The parents assert that their children’s exposure to the storybooks, including discussion about the characters, storyline, and themes, will substantially interfere with their sacred obligations to raise their children in their faiths.... [T]he parents’ inability to opt their children out of reading and discussion of the storybooks does not coerce them into violating their religious beliefs....  The parents still may instruct their children on their religious beliefs regarding sexuality, marriage, and gender, and each family may place contrary views in its religious context. No government action prevents the parents from freely discussing the topics raised in the storybooks with their children or teaching their children as they wish.

In a press release on the decision, Becket Fund announced that the case will be appealed to the 4th Circuit.