Oklahoma Supreme Court Says Creation of Religious Charter School Is Unconstitutional

In Drummond v. Oklahoma Statewide Virtual Charter School Board, (OK Sup, Ct., June 25, 2024), the Oklahoma Supreme Court held that the state Charter School Board's authorization of a Catholic sponsored publicly-funded charter school violates Oklahoma statutes, the Oklahoma Constitution and the First Amendment's Establishment Clause. The court said in part:

Although a public charter school, St. Isidore is an instrument of the Catholic church, operated by the Catholic church, and will further the evangelizing mission of the Catholic church in its educational programs. The expenditure of state funds for St. Isidore's operations constitutes the use of state funds for the benefit and support of the Catholic church. It also constitutes the use of state funds for "the use, benefit, or support of . . . a sectarian institution." The St. Isidore Contract violates the plain terms of Article 2, Section 5 of the Oklahoma Constitution....

Because it is a governmental entity and a state actor, St. Isidore cannot ignore the mandates of the Establishment Clause, yet a central component of St. Isidore's educational philosophy is to establish and operate the school as a Catholic school. St. Isidore will fully incorporate Catholic teachings into every aspect of the school, including its curriculum and co-curricular activities. It will require students to spend time in religious instruction and activities, as well as permit state spending in direct support of the religious curriculum and activities within St. Isidore--all in violation of the Establishment Clause....

... [W]hat St. Isidore requests from this Court is beyond the fair treatment of a private religious institution in receiving a generally available benefit, implicating the Free Exercise Clause. It is about the State's creation and funding of a new religious institution violating the Establishment Clause.12 Even if St. Isidore could assert free exercise rights, those rights would not override the legal prohibition under the Establishment Clause. Compliance with the Establishment Clause in this case is a compelling governmental interest that satisfies strict scrutiny under other provisions of the First Amendment.

Vice Chief Justice Rowe concurred in part and dissented in part, saying that he concurred only in the conclusion "that Article 1, Section 5 of the Oklahoma Constitution mandates that public charter schools are nonsectarian."

Justice Kuehn dissented, saying in part:

St. Isidore would not become a "state actor" merely by contracting with the State to provide a choice in educational opportunities. By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.

AP reports on the decision.

Suit Challenges Louisiana's Law Requiring Posting of 10 Commandments in Public Schools

Suit was filed yesterday in a Louisiana federal district court by a group of parents (some of whom are clergy) on behalf of their minor children challenging Louisiana's recently enacted statute that requires the posting of the Ten Commandments in every public-school classroom. Contending that the law violates the Free Exercise and Establishment Clauses, the complaint (full text) in Roake v. Brumley, (MD LA, filed 6/24/2024) alleges in part:

Permanently posting the Ten Commandments in every Louisiana public-school classroom—rendering them unavoidable—unconstitutionally pressures students into religious observance, veneration, and adoption of the state’s favored religious scripture. It also sends the harmful and religiously divisive message that students who do not subscribe to the Ten Commandments—or, more precisely, to the specific version of the Ten Commandments that H.B. 71 requires schools to display—do not belong in their own school community and should refrain from expressing any faith practices or beliefs that are not aligned with the state’s religious preferences. And it substantially interferes with and burdens the right of parents to direct their children’s religious education and upbringing.  

...The state’s main interest in passing H.B. 71 was to impose religious beliefs on public-school children, regardless of the harm to students and families. The law’s primary sponsor and author, Representative Dodie Horton, proclaimed during debate over the bill that it “seeks to have a display of God’s law in the classroom for children to see what He says is right and what He says is wrong.”

The advocacy groups bringing the suit (ACLU, Americans United, FFRF) issued a press release announcing the filing of the suit.

Certiorari Denied in Connecticut Repeal of Religious Exemptions from Vaccination Requirements

The U.S. Supreme Court yesterday denied review in We the Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (Docket No. 23-643, certiorari denied 6/24/2024). (Order List.) In the case, the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision, upheld the constitutionality of Connecticut's repeal of religious exemptions from its mandatory vaccination laws, while retaining medical exemptions. (See prior posting.) AP reports on the Supreme Court's action.

Court Says EEOC Exceeded Its Authority in New Rules Under Pregnant Workers Fairness Act

In State of Louisiana v. EEOC, (WD LA, June 17, 2024), a Louisiana federal district court granted a preliminary injunction to the states of Louisiana and Mississippi, as well as to the U.S. Conference of Catholic Bishops and two Louisiana dioceses, postponing the effectiveness of new EEOC rules under the Pregnant Workers Fairness Act that require employers to accommodate employees' elective abortions. The court said in part:

If Congress had intended to mandate that employers accommodate elective abortions under the PWFA, it would have spoken clearly when enacting the statute, particularly given the enormous social, religious, and political importance of the abortion issue in our nation at this time (and, indeed, over the past 50 years).  The Court is therefore not persuaded, on the record before it, that Congress could reasonably be understood to have granted the EEOC the authority to interpret the scope of the PWFA in a way that imposes a nationwide mandate on both public and private employers – irrespective of applicable abortion-related state laws enacted in the wake of Dobbs – to provide workplace accommodation for the elective abortions of employees.

In this sense, EEOC’s use of its regulatory power to insert the issue of abortion into a law designed to ensure healthy pregnancies for America’s working mothers squarely implicates the “major questions doctrine” as enunciated by the Supreme Court....  The major questions doctrine applies when an “agenc[y] assert[s] highly consequential power beyond what Congress could reasonably be understood to have granted.”...

Clearly, EEOC failed to include a broad religious exception in the Final Rule, and... EEOC’s interpretation of the PWFA religious exception – inasmuch as it mirrors the religious exception in Title VII, an antidiscrimination statute – does not square with the PWFA.

See prior related posting.

9th Circuit Reverses Dismissal of Suit Challenging Refusal to Grant Religious Exemptions to Vaccine Mandate

 In Bacon v. Woodward, (9th Cir., June 18, 2024), the U.S. 9th Circuit Court of Appeals in a 2-1 decision reversed a Washington federal district court's dismissal of a suit by firefighters who claim that their free exercise rights were infringed by the city of Spokane refusing to accommodate their religious objections to the Covid vaccine. The majority said in part:

The Complaint alleges that, once unvaccinated firefighters were terminated, Spokane would turn to firefighters from neighboring fire departments to fill the gaps left by the firefighters’ departure even though those fire departments granted religious accommodations to their employees.  In other words, Spokane implemented a vaccine policy from which it exempted certain firefighters based on a secular criterion—being a member of a neighboring department—while holding firefighters who objected to vaccination on purely religious grounds to a higher standard.  The Free Exercise Clause prohibits governments from “treat[ing] comparable secular groups more favorably.”...

 ... [T]he Complaint alleges at least three less restrictive ways that “[t]he Mayor, the Fire Chief, and the City could accomplish its same compelling purpose.”...

Judge Hawkins dissented, saying that rational basis review should apply:

The complaint alleges that the City Defendants applied the Proclamation to their employees uniformly and treated medical and religious objectors the same.  The complaint also alleges that other cities and entities adopted different policies and the City Defendants had pre-existing mutual aid agreements with some neighboring fire departments.  The complaint then predicts that, as a result of those pre-existing mutual aid agreements, some unvaccinated firefighters from neighboring departments may operate within the City of Spokane.  In my view, these allegations are insufficient to plausibly show that the Proclamation, as implemented by the City Defendants, is not neutral or generally applicable.

State Funding of Only Secular Home-School Materials Upheld

In Woolard v. Thurmond, (ED CA, June 10, 2024), a California federal district court rejected challenges by parents of children enrolled in home study programs through California public charter schools to the requirement that state funds be used only for secular instructional materials. Parents contended that refusing to fund faith-based curricular materials denied families equal access to state benefits solely because of their religious nature.  The court disagreed, saying in part:

The state action of failing to provide requested religious curriculum is not an infringement on Plaintiffs’ freedom of exercise.  As confirmed in Plaintiffs’ own cited case, Carson v. Makin, states are allowed to provide a strictly secular education in its public schools....  A strictly secular education does not substantially burden the Plaintiffs’ practice of religion....

This case involves California’s laws and regulations for state funded public schools, not private schools.  There are no “public benefits” in the form of grants or otherwise that the state is excluding Plaintiffs from....

UCLA Students Sue University For Failing to Protect Jewish Students

Three Jewish students at UCLA yesterday filed a civil rights lawsuit in a California federal district court alleging that the University, by tolerating widespread antisemitic behavior, has violated a lengthy list of state and federal statutory and constitutional provisions.  The complaint (full text) alleges in part:

1.  The University of California, Los Angeles ..., has deteriorated into a hotbed of antisemitism. This rampant anti-Jewish environment burst into view on October 8, 2023, the day after Hamas terrorists attacked Israel....

2. In the wake of these horrifying events, UCLA should have taken steps to ensure that its Jewish students were safe and protected from harassment and undeterred in obtaining full access to campus facilities. Instead, UCLA officials routinely turned their backs on Jewish students, aiding and abetting a culture that has allowed calls for the annihilation of the Jewish people, Nazi symbolism, and religious slurs to go unchecked....

4. Starting on April 25, 2024, and continuing until May 2, 2024, UCLA allowed a group of activists to set up barricades in the center of campus and establish an encampment that blocked access to critical educational infrastructure on campus....

6. With the knowledge and acquiescence of UCLA officials, the activists enforced what was effectively a “Jew Exclusion Zone,” segregating Jewish students and preventing them from accessing the heart of campus, including classroom buildings and the main undergraduate library....

11. Yet even as the activists continued to enforce the Jew Exclusion Zone, Defendants not only failed to marshal resources to intervene— they adopted a policy facilitating the Jew Exclusion Zone.....

19. The administration’s cowardly abdication of its duty to ensure unfettered access to UCLA’s educational opportunities and to protect the Jewish community is not only immoral—it is illegal.  

20. Specifically, it violates numerous federal and state constitutional guarantees, including the Equal Protection Clause, the Free Exercise Clause, and the freedom of speech.  

21. And it contravenes the basic guarantee of equal access to educational facilities that receive federal funding, as well as numerous other statutory guarantees of equality and fair treatment.

Fox 11 reports on the lawsuit. Becket Fund issued a press release announcing the filing of the suit.

 

Catholic Preschools Must Be Able to Conditionally Participate in Colorado Universal Preschool Program

In St. Mary Catholic Parish in Littleton v. Roy, (D CO, June 4, 2024), a Colorado federal district court in a 101-page opinion, held that Colorado cannot exclude from its Universal Preschool Program two Catholic schools that will not enroll LGBTQ children or children from LGBTQ families so long as the state continues to improperly grant an exemption from religious anti-discrimination requirements to faith-based pre-schools that limit their enrollment to members of their own congregations. The court said in part:

Defendants have established a compelling interest in denying an exemption from the sexual-orientation and gender-identity aspects of the equal-opportunity requirement for Plaintiff Preschools specifically....

In sharp contrast to the evidence Defendants presented to establish a compelling interest with respect to the sexual-orientation and gender-identity aspects of the equal-opportunity requirement, Defendants did not offer any evidence relating to discrimination on the basis of religious affiliation....

Defendants enable faith-based providers to effectively discriminate on the basis of religious affiliation in their admission of preschoolers but, at the same time, deny Plaintiff Preschools an explicit exemption from the related aspect of the equal-opportunity requirement. Defendants have provided no compelling interest for their course of conduct....

The application by Defendants ... acting in their official capacities on behalf of the Colorado Department of Early Childhood, of the religious affiliation aspect of the equal-opportunity requirement...violates Plaintiffs’ rights secured by the Free Exercise Clause of the First Amendment to the U.S. Constitution....

The Court immediately and permanently enjoins Defendants ... from requiring, as a condition for participation in the Colorado Universal Preschool Program, that the preschools operated by Plaintiffs St. Mary Catholic Parish ... and St. Bernadette Catholic Parish... agree to provide or provide eligible children an equal opportunity to enroll and receive preschool services regardless of religious affiliation for as long as Defendants allow exceptions from the religious affiliation aspect of the equal-opportunity requirement set out in Colorado Revised Statute § 26.5-4-205(2)(b) and in the Colorado Universal Preschool Program Service Agreement.

Becket Fund issued a press release announcing the decision. 

Suit Challenges Vermont Foster Care Rules on Sexual Orientation and Gender Identity

Suit was filed yesterday in a Vermont federal district court by two couples challenging a policy adopted by the state foster care agency relating to sexual orientation, gender identity/ expression (SOGIE). Plaintiffs allege that the policy is inconsistent with their Christian religious beliefs. The complaint (full text) in Wuoti v. Winters, (D VT, filed 6/4/2024) alleges in part:

According to the Department, to meet the “needs of each foster child” under Rule 301 (emphasized), all parents must demonstrate that they can support any hypothetical child’s SOGIE....

All foster families must show that they will unconditionally support and affirm a child’s desire to dress, cut their hair, or wear accessories to express their stated gender identity,,,,

Plaintiffs allege that as applied the policy violates their 1st Amendment free speech rights:

... [T]he Department’s Mandate requires applicants to agree to speak certain words, like inaccurate pronouns, and to engage in certain expressive activities, like pride parades, that express the Department’s preferred views on human sexuality, as a condition for accessing child-welfare services. 

... [T]he Department’s Mandate forbids applicants from expressing certain views, like the Plaintiffs’ religious views on human sexuality, and engaging in certain expressive activities, like attending church, as a condition for accessing child-welfare services....

They also allege that the policy violates their 1st Amendment religious free exercise rights:

... The Wuotis and the Gantts have certain sincerely held religious beliefs about the human body and human sexuality, and they are also religiously motivated to provide foster care and adoption. 

... The Department’s SOGIE Mandate conditions Plaintiffs’ ability to obtain a foster-care license on their willingness to speak and act contrary to these religious beliefs.

The complaint also alleges due process and equal protection claims. ADF issued a press release announcing the filing of the lawsuit. 

Obstructing Police Clearing Abortion Clinic Demonstrators Not Protected as Free Exercise

In People of the State of Michigan v. Connolly, (MI App., May 30, 2024), a Michigan state appellate court upheld convictions of four anti-abortion activists. Defendants had conducted a "red rose" rescue-- entering an abortion clinic, handing each client in the waiting room a rose and attempting to convince them not to proceed with abortions. When ordered by police to leave, defendants instead fell limp to the floor, and officers had to carry them out of the building. Defendants were convicted of resisting or obstructing a police officer, trespass and disturbing the peace. Defendants contended in part that the obstructing police conviction violated their First Amendment rights to the Free Exercise of religion because their actions were motivated by their Catholic faith. The court responded:

Defendants do not dispute that MCL 750.81d(1) is facially neutral because it does not refer to religion in any manner.  However, “[f]acial neutrality is not determinative.”... While a law plainly targeting a religion obviously is not neutral, “if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law [also] is not neutral[.]” ...

...  The language of MCL 750.81d is facially neutral, and defendants have not identified any possible legislative intent directed at individuals who practice Catholicism, or even those who oppose abortion on religious grounds.  Indeed, even a brief review of recent caselaw from this Court reveals MCL 750.81d is regularly used to prosecute individuals for reasons completely unrelated to religious beliefs.

The court also rejected vagueness and equal protection defenses.

Lifeguard Sues L.A. County Over Required Flag Raising for Pride Month

A suit was filed last week in a California federal district court by plaintiff who is employed as a lifeguard by Los Angeles County objecting to the requirement that he raise the Progress Pride Flag at his lifeguard station during June which has been designated as LGBTQ+ Pride month. The complaint (full text) in Little v. Los Angeles County Fire Department, (CD CA, filed 5/24/2024), alleges in part:

Captain Little is ... an evangelical Christian with beliefs on marriage, family, sexual behavior and identity that align with the traditional and orthodox biblical-social teachings....

... While Captain Little understands that the government can speak its own messages, and thus may promote Pride Month, he believes that he cannot personally do so by raising the Progress Pride Flag. Doing so would be to personally participate in, espouse, and promote messages contrary to his sincerely held religious beliefs, similar to how many courts have recognized that Jehovah’s Witnesses may not salute or pledge allegiance to the flag of any nation or state....

The complaint alleges that requiring him to raise the Pride Flag, refusing to provide him with a religious accommodation and taking retaliatory action against him violate Title VII of the 1964 Civil Rights Act, the California Fair Employment and Housing Law, the Free Exercise Clause of the U.S. and California Constitutions and the Free Speech clause of the U.S. Constitution.

Thomas More Society issued a press release announcing the filing of the lawsuit. Los Angeles Times has additional details.

UPDATE: According to a June 5. 2024 press release from the Thomas More Society, Los Angeles County has agreed to give plaintiff a partial accommodation by not requiring him to raise the Progress Pride Flag as part of his job for the remainder of June.

2nd Circuit: Former Hindu Inmate's Challenges to Mandated Treatment Program Dismissed

 In Tripathy v. McKoy, (2d Cir., May 29, 2024), the U.S. 2nd Circuit Court of Appeals affirmed the dismissal of a suit brought against prison officials by a former inmate who contended that his rights were violated when he was forced to enroll in a specific sex offender treatment program in order to get lighter parole and registration requirements. According to the court: 

A devout Hindu, Tripathy objected to this requirement on religious grounds, arguing that he was innocent of the crimes for which he was convicted and that accepting responsibility for his crimes would require him to make a false statement, in violation of the “core” Hindu “tenet[]” against lying.

The court summarized its holdings:

We agree with the district court that Tripathy’s claim for damages under RLUIPA is barred by our precedent holding that the statute does not permit individual capacity damages; we likewise agree that his demands for injunctive and declaratory relief became moot when his state convictions were vacated and he was released from prison.  With respect to his constitutional claims brought pursuant to 42 U.S.C. § 1983, the district court properly concluded that Tripathy’s free exercise claim under the First Amendment is barred by qualified immunity, that he lacks standing to seek damages for his due process claim under the Fourteenth Amendment, and that he fails to state a claim for retaliation in violation of the First Amendment.

Churches' Challenges To Day Care Licensing Dismissed

In Foothills Christian Ministries v. Johnson, (SD CA, May 20, 2024), a California federal district court dismissed challenges by three churches to the California Child Day Care Facilities Act. The churches wish to open day cares but object to the requirement that they obtain a license to do so. The opinion relates to plaintiffs' First Amended Complaint after a prior dismissal. (See prior posting.) The court said in part:

... [I]ndignation is not injury and Plaintiffs have provided no further grounds for standing to challenge the licensure requirement itself beyond that they do not want a preschool that operates at the pleasure of DSS through the State’s licensing scheme...

The court also dismissed claims relating to removal of a preschool director and actions against it for refusing to comply with a past masking mandate over the objection of parents to the mandate. Plaintiffs' Establishment Clause, free speech and due process claims were dismissed without prejudice.

New York's Top Court Says That Religious Employer Exemption from Abortion Coverage Mandate Is Not Too Narrow

In Roman Catholic Diocese of Albany v Vullo, (NY Ct. App., May 21, 2024), New York's highest appellate court rejected a claim that the "religious employer" exemption to the state's requirement that health insurance policies cover medically necessary abortion services is too narrow.  The exemption is available only to an employer that meets 4 criteria-- it is a non-profit organization whose purpose is the inculcation of religious values and it primarily employs and serves persons who share the entity's religious tenets. Plaintiffs, which are religiously affiliated entities, contend that their free exercise rights are infringed because they do not meet the criteria for the exemption, The court said in part:

... [B]oth the regulation itself and the criteria delineating a "religious employer" for the purposes of the exemption are generally applicable and do not violate the Free Exercise Clause. Neither the existence of the exemption in the regulation nor the defined criteria allow for "individualized exemptions" that are standardless and discretionary, nor do they allow for comparable secular conduct while discriminating against religious conduct.

Reuters reports on the decision.

Church Sues Town Over Zoning Objections to Temporary Shelter Ministry

Suit was filed last week in a Colorado federal district court by a non-denominational Christian church challenging a town's claim that the church's Temporary Shelter Ministry violates the town's zoning ordinance. The complaint (full text) in Church of the Rock, Inc. v. Town of Castle Rock, Colorado, (D CO, filed 5/13/2024) alleges that the church's rights under the First Amendment as well as the Religious Land Use and Institutionalized Persons Act are violated by the town's objections to the church's use of an RV and a trailer in the church's parking lot as temporary or emergency shelter for homeless families. The church also claimed unlawful retaliation by the town. Plaintiff additionally filed a Memorandum in Support of Its Motion for Preliminary Injunction (full text). First Liberty issued a press release announcing the filing of the lawsuit.

Civil Rights Commission Holds Briefing on Prisoners' Religious Freedom

Last Friday, the U.S. Commission on Civil Rights held a lengthy hearing on The Federal Role in Enforcing Religious Freedom in Prisons. A video of the full hearing is available on YouTube. In announcing the hearing, the Commission said:

The U.S. Commission on Civil Rights will hold a briefing on, Friday, May 17, 2024, on whether prisoners’ religious freedom rights are being protected and enforced in accordance with constitutional and statutory provisions. This is an update to the Commission’s 2008 statutory enforcement report, Enforcing Religious Freedom in Prison.

Specifically, the Commission will review the constitutional and federal statutory provisions of the First Amendment, the Civil Rights of Institutionalized Persons Act of 1980 (CRIPA), the Religious Freedom Restoration Act of 1990 (RFRA), the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), and the Prison Litigation Reform Act (PLRA).

At this public briefing, the Commission will hear from subject matter experts such as government officials, religious leaders, academics, prisoners’ rights advocates, religious liberty organizations, and legal experts. The Commission will accept written materials from the public for consideration as we prepare our report....

Longer Bus Routes for Parochial School Students Upheld

In Swiech v. Board of Education of the Sylvania City School District, (OH Com. Pl., March 19, 2024), an Ohio trial court dismissed a suit brought by parents of students attending a Catholic school. Plaintiffs complained that bus transportation furnished by the District to and from non-public schools involved much longer transportation times than bus service for public school students. While public school students were taken directly to school, non-public students were taken to a central transfer point and then transferred to other busses to get to their schools.  Among the court's holdings was that no Equal Protection violation was involved because the District only needed a rational basis for the differential treatment. Conservation of limited financial resources meets that test.  The court also rejected plaintiffs' Free Exercise challenge

Plaintiffs have offered no evidence of any coercive effects on their religious practice: there is no evidence that the transportation plan has compelled Plaintiffs to do anything forbidden by their religion or that it has caused them to refrain from doing something required by their religion. Plaintiffs have also not offered any evidence that the transportation plan has compelled them to affirm or disavow a belief forbidden or required by their religion.

4th Circuit: Denial of Opt-Out From LGBTQ-Friendly Books Did Not Violate Parents' Free Exercise Rights

In Mahmoud v. McKnight, (4th Cir., Maay 15, 2024), the U.S. 4th Circuit Court of Appeals in a 2-1 decision affirmed a Maryland federal district court's denial of a preliminary injunction in a challenge to a school board's refusal to allow parents to opt their children out of exposure to a group of LGBTQ inclusive books. The parents contended that refusal to provide an opt out alternative violates their religious free exercise rights. The majority said in part:

As an initial matter, there’s no evidence at present that the Board’s decision not to permit opt-outs compels the Parents or their children to change their religious beliefs or conduct, either at school or elsewhere....

The Parents do not really take issue with the foregoing conclusion; instead, they argue that the Board’s decision nonetheless coerces religious exercise by compelling them to expose their children to views that are at odds with their religious faith....

Supreme Court precedent requires some sort of direct or indirect pressure to abandon religious beliefs or affirmatively act contrary to those beliefs....

We understand the Parents’ contention that the Storybooks could be used in ways that would confuse or mislead children and, in particular, that discussions relating to their contents could be used to indoctrinate their children into espousing views that are contrary to their religious faith. But none of that is verified by the limited record that is before us....

Put simply, we cannot conclude that a policy requiring the presence of an individual in the classroom when these materials may be read ipso facto creates an impermissibly coercive environment....

Judge Quattlebaum dissented, saying in part:

 ... [W]hen the onion layers of the board’s argument are peeled back, the board seems to question the relative importance of the parents’ religious beliefs that their children should not be taught with the books the board required be used to promote diversity and inclusivity to the LGBTQ+ community. To explain, the board only denied opt-outs for instruction involving those books. So, despite disclaiming that it is doing so, the board’s arguments, which the district court adopted, really view the parents’ religious objections to the texts as less important than the board’s goals to improve inclusivity for the LGBTQ+ community. But this is the precisely the sort of value judgment about parents’ religious claims that courts must not make....

Bloomberg Law reports on the decision.

2nd Circuit Reverses Dismissal of Muslim Inmate's Complaint About Eid Meal

In Brandon v. Royce, (2d Cir., May 15, 2024), the U.S. 2nd Circuit Court of Appeals held that the district court erred in granting summary judgment dismissing a Muslim inmate's free exercise of religion claim against three Sing Sing prison officials. At issue was plaintiff's participation in a special meal for Muslim inmates and their guests around Eid al-Adha. Because the event was overbooked, prison officials offered inmates the special meal in their cells if they withdrew from attending the group event. Plaintiff withdrew but did not receive a meal.  On appeal, defendants argued, among other things, that they had a legitimate penological interest in not delivering the meal to plaintiff's cell-- a concern that civilian and inmate cooks who prepared meals for the event might place contraband in the meal trays. The court concluded:

In granting summary judgment to the defendants, the district court did not resolve the parties’ dispute as to whether the September 26 event was a religious event related to Eid al-Adha or an unrelated “family event.”  Rather, the district court relied on the defendants’ asserted penological interests and their view that there was an alternative means of Brandon exercising his First Amendment right: by attending the September 26 event and receiving the special meal there.  Neither ground supports granting judgment as a matter of law to the defendants at the summary judgment stage....

To be sure, we do not dispute that an increased possibility that a visitor would introduce contraband into a prison is a legitimate penological concern ....  We simply conclude that there is no unambiguous record support for the defendants’ claim that they denied Brandon a meal tray on September 26 because “the presence of outside guests increased the risk that contraband could be hidden in the food.”...  And we further conclude, based on the evidence before the district court, that the penological concerns relied on by the district court and raised on appeal cannot at this juncture support summary judgment in favor of the defendants....

10th Circuit: Vaccine Exemption for Only Some Religions Violates 1st Amendment

In Jane Does 1-11 v. Board of Regents of the University of Colorado, (10th Cir., May 7, 2024), the U.S. 10th Circuit Court of Appeals held that the policies for granting or denying a religious exemption from the Covid vaccine mandate on one of the campuses of the University of Colorado violated the 1st Amendment's Free Exercise and Establishment Clauses. As explained by the court:

The September 1 Policy declared that “[a] religious exemption may be submitted based on a person’s religious belief whose teachings are opposed to all immunizations.” ...  The Administration made clear that it would “only accept requests for religious exemption that cite to the official doctrine of an organized religion . . . as announced by the leaders of that religion.”  ....

...  Therefore, as the Administration explained to Anschutz students and employees, Christian Scientists and Jehovah’s Witnesses would qualify for an exemption under the Administration’s criteria.  However, the Administration would reject an application for an exemption if it deemed the applicant’s beliefs “personal,” not “religious,” or “not part of a comprehensive system of beliefs.”...  For example, the Administration decided that “it is ‘morally acceptable’ for Roman Catholics to take vaccines against COVID-19,” and that any Roman Catholic objections to the COVID-19 vaccine are “personal beliefs,” not “religious beliefs.” ... For similar reasons, the Administration refused to approve exemptions for Buddhist applicants.  Nor would the Administration approve exemptions for applicants who were members of the Eastern Orthodox Church.  The Administration also rejected exemption applications from Evangelical Christians, non-denominational Protestants, and applicants who did not specify whether they were affiliated with a particular religious organization....

The University adopted a modified policy on September 24 in the face of litigation, but, according to the majority, it was a mere pretext to continue its September 1 policy. The majority found that both policies were unconstitutional, summarizing its holding in part as follows:

We hold that a government policy may not grant exemptions for some religions, but not others, because of differences in their religious doctrines, which the Administration’s first policy did.  We further hold that the government may not use its views about the legitimacy of a religious belief as a proxy for whether such belief is sincerely-held, which the Administration did in implementing the first policy.  Nor may the government grant secular exemptions on more favorable terms than religious exemptions, which the Administration’s second policy does.  Finally, we hold that the policies at issue in this appeal were motivated by religious animus, and are therefore subject to strict scrutiny—which neither policy survives.  The district court concluded otherwise and, in so doing, abused its discretion.....

Judge Ebel filed a partial dissent, saying in part:

I agree the September 1 mandate should be enjoined preliminarily, although for reasons different from those relied upon by the majority.  However, I would not enjoin the September 24 mandate....  

... I see no evidence indicating that the University adopted either mandate out of an animus—that is, a hostility—toward religion generally or toward some religions in particular.  Second, Plaintiffs have not shown that the two inquiries the University posed to those applying for a religious exemption under the September 1 mandate infringed any First Amendment protection.  The University was entitled to ask applicants why they opposed being vaccinated in order to determine whether that opposition was based on religious beliefs and, if so, whether those religious beliefs were sincerely held and, if so, how those beliefs could be accommodated.

Thomas More Society issued a press release announcing the decision.