Hawaii Chabad Rabbi Sues Over Zoning Law

Suit was filed this week in a Hawaii federal district court by a Chabad rabbi contending that Hawaii County's residential zoning Code violates the First Amendment, the Hawaii Constitution and RLUIPA. The complaint (full text) in Chabad Jewish Center of the Big Island v. County of Hawaii, (D HI, filed 2/13/2024), alleges in part:

 Hawai‘i County Code § 25-5-3(a)(9) allows “[m]eeting facilities” to operate “in [a] RS district” sans any restriction.  Conversely, Hawai‘i County Code § 25-2-61(b)(3) permits “[c]hurches, temples and synagogues” to operate in a RS district “only if a use permit is obtained for use.”  And, critically, use permits are required not only for “[c]hurches, temples and synagogues” themselves but also for the “meeting facilities for churches, temples, synagogues and other such institutions[] in RS . . . districts.” ...  In other words, in residential use districts in Hawai‘i County, meeting facilities are permissible so long as they’re secular....

It is the County’s policy and practice to prosecute supposed violations of Hawai‘i County Code § 25-2-61 only when the violating party hosts Jewish gatherings.  The County’s enforcement decisions are neither neutral nor generally applicable, as other religious and non-religious meetings of comparable size have occurred unmolested in the zoning district of Rabbi Gerlitzky’s home.  The County’s policy of selective enforcement against the Plaintiffs, if left unchecked, will effectively shutter one of the now only two orthodox Jewish gathering spaces on the Big Island.  This policy is enabled by the County’s practice of ratcheting up recurring fines against the Plaintiffs.

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

Expressed Hostility to Religious Belief of Vaccine Exemption Applicant Did Not Violate 1st Amendment

 In Hancock v. Oregon Health and Science University, (D OR, Feb. 8, 2024), an Oregon federal district court dismissed without prejudice a claim by a lecturer at the University that her 1st Amendment rights were violated in the process of denying her claim of a religious exemption from the University's Covid vaccine mandate.  Plaintiff claimed that various of the defendants:

... expressed overt hostility to the religious beliefs of Plaintiff by declaring Plaintiff's religious beliefs 'personal moral choices and/or conscientious objection rather than a tenet of a religious faith,' merely her 'right to have religious freedom or conscientiously object to the vaccine' rather than a sincerely held religious belief and 'concerns over vaccine safety or content' not a sincerely held religious belief but rather a 'religious argument' and 'inconsistent with proven facts.'

The court held that mere expression of hostility toward plaintiff's religious beliefs does not create tangible harm that can be remedied, and so plaintiff lacks standing. It went on to hold that even if plaintiff had standing, she did not adequately allege that defendants substantially burdened her religious beliefs. The court said in part:

At best, the Court identifies only two allegations that could plausibly be related to coercion: (1) "Defendant OHSU's request for additional information was meant to belittle and shame Plaintiff for her religious beliefs and convince her she did not possess the religious beliefs she possessed"; and (2) "Board Defendant's [sic] placed pressure on Plaintiff to conform to the prevailing approved religion by proclaiming which religious beliefs were worthy of religious exceptions and which were not."...

... [N]either allegation addresses what effect this alleged pressure had on plaintiff.

Finally, the court concluded that defendants are entitled to qualified immunity. 

Satanic Temple Loses Challenge to Idaho Abortion Bans

In The Satanic Temple v. Labrador, (D ID, Jan. 31, 2024), an Idaho federal district court dismissed several challenges to Idaho's statutes criminalizing abortion filed by The Satanic Temple which has created its own Abortion Ritual.  The court describes plaintiff's claims:

The Satanic Temple (“TST”) filed the instant case arguing Defendants actions have: (1) effected a regulatory taking of the economic value of a pregnant woman’s womb in violation of the Fifth Amendment; (2) effectively made pregnant women into slaves in violation of the Thirteenth Amendment; (3) given unconstitutional preferences to rape victims in violation of the Fourteenth Amendment; and (4) violated Idaho’s religious freedom statutes.

After finding that TST lacks standing to bring the suit, the court goes on to also reject TST's first three claims on the merits and concludes that TST, which asked to file an amended complaint to substitute a free exercise claim for its claim under Idaho's Exercise of Religious Freedom Act, should do this by fining a new lawsuit rather than an amended complaint.

Idaho Attorney General Labrador issued a press release announcing the decision which he titled "Attorney General Labrador Defeats Satan." LifeNews reporting on the decision said that lawyers for TST plan an appeal to the 9th Circuit.

2nd Circuit: Delivering Inmate's Ramadan Meals Too Early Burdened His Free Exercise Rights

In Long v. Sugai, (2d Cir., Feb. 5, 2024), the U.S. 2nd Circuit Court of Appeals held that a Hawaii prison sergeant may have violated plaintiff inmate's free exercise rights by delivering his Ramadan meals 4 hours before sundown.  The court said in part:

The question in the case before us is not whether serving cold, unappetizing, and possibly unsafe food is cruel and unusual punishment.  Rather, it is whether serving such food unconstitutionally burdened Long’s free exercise of his religion....

... [B]y the time Long could eat his evening meal at about 7:30 p.m., the food was often inedible and potentially unsafe, and, if eaten, exacerbated his stomach ulcers.  We take judicial notice of the fact that some food cannot safely sit at room temperature for four hours....

... [D]elivery of Long’s evening meal at 3:30 p.m. during Ramadan substantially burdened his free exercise of religion.  The district court should have evaluated the four Turner factors to determine whether the burden was justified.  Because the court did not conduct that analysis, we remand to allow it to do so.  The district court also did not conduct a qualified immunity analysis.  If the court concludes, after conducting the Turner analysis, that the burden was not justified, our remand allows the court to conduct a qualified immunity analysis. ...

The court affirmed the district court's dismissal of free exercise claims against another sergeant.

Good News Clubs Sue for Access to Hawaii Schools

Suit was filed two weeks ago in a Hawaii federal district court against the Hawaii Department of Education and four school districts in which schools have denied permission for Good News Clubs to use various school facilities for after-school programs. The complaint (full text) in Child Evangelism Fellowship of Hawaii, Inc. v. Hawaii State Department of Education, (D HI, filed 1/23/2024), alleges that the denials violate plaintiff's free speech, free exercise, Establishment Clause and equal protection rights. Plaintiff has also filed a Motion for Preliminary Injunction accompanied by a Memorandum of Law supporting the Motion (full text). Liberty Counsel issued a press release announcing the filing of the lawsuit.

Questions of Fact Remain in Challenge to Application Process for Prison Chaplaincy Supervisor

 In Bridges v. Prince Georges County, Maryland, (D MD, Feb. 1, 2024), a Maryland federal district court refused to grant summary judgment for either plaintiff or the defendants in a suit by a Muslim chaplain alleging that his 1st Amendment rights were violated by the application process for a paid supervisory position at the county detention center.  At issue was a "Statement of Applicant's Christian Faith" that was part of the application form created by Prison Ministry of America (PMA) which, under contract with the county, was to provide a non-denominational chaplain supervisor for the jail.  After finding that plaintiff had standing and that PMA was a state actor during the hiring process, the court said in part:

Because a reasonable jury could find the Statement of Christian Faith to be “a religious test” ..., summary judgment cannot be granted in favor of Defendants on this count.  However, Defendants’ assertion that the Statement was optional creates a sufficient dispute of material fact as to render summary judgment inappropriate in Plaintiff’s favor, as well....

Regardless of whether the Statement of Christian Faith was mandatory or not, the inclusion of such a statement, especially given that it appeared on its face to be required, clearly employed a non-neutral policy as it specifically allowed for participation by Christians and no others.  This non-neutral practice, then, could be viewed by a reasonable jury as placing a burden on Plaintiff’s religious expression by denying him the ability to apply for a job that he otherwise would have been able to seek, due to his religion....  As such, a reasonable jury could find that this burdened Plaintiff’s freedom of expression and that the policy was not narrowly tailored to meet a compelling government interest, and thus summary judgment cannot be granted in favor of Defendants.  However, the question of whether the inclusion of the Statement of Christian Faith in the application burdened Plaintiff’s religious exercise, given Defendants’ assertion that the Statement of Christian Faith was not actually required, creates a genuine dispute of material fact, and, therefore, summary judgment cannot be granted in favor of Plaintiff, either.

European Court: Azerbaijan's Ban on Foreign Educated Imams Violates European Convention

In Babayev v. Azerbaijan, (ECHR, Feb. 1, 2024), the European Court of Human Rights held that Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) is violated by Azerbaijan's law prohibiting citizens of the country who obtained their religious education abroad from conducting Islamic religious rites and rituals in Azerbaijan. In awarding petitioner, who had been sentenced to three years in prison for violating the law, damages of 6000 Euros, plus costs and expenses, the court said in part:

75.... The Court notes that there is no indication whatsoever that the Islamic religious rites and rituals that the applicant conducted contained any expressions or constituted any actions, such as, for example, seeking to spread, incite or justify hatred, discrimination or intolerance, or otherwise undermine the ideals and values of a democratic society....

76.... The Court is aware of the fundamental importance of secularism in Azerbaijani statehood and the respondent State’s attachment to religious tolerance. However, it cannot accept the Government’s argument that the applicant’s criminal conviction was necessary in a democratic society on account of the State’s fight against religious extremism and its protection of democratic values....

78.... [I]t is apparent that in so far as the restrictions did not regulate the content of the religious expression or the manner of its delivery, they were not fit to protect society from religious extremism or any other forms of intolerance...

Mother Sues School for Socially Transitioning Her Daughter

Suit was filed yesterday in a New York federal district court by the mother of a middle school student who contends that her free exercise and due process rights were violated when the school began to socially transition her daughter by using a masculine name and plural pronouns in referring to her without informing the mother of the school's action.  The complaint (full text) in Vitsaxaki v. Skaneateles Central School District, (ND NY, filed 1/31/2024), alleges in part:

233. Mrs. Vitsaxaki was raised in a Catholic household, but after marrying Mr. Vitsaxakis, joined the Greek Orthodox Church...

262. Mrs. Vitsaxaki’s free-exercise rights include the right to raise her children in accordance with her religious beliefs and the right to direct her children’s education and upbringing consistent with her religious beliefs, including on identity, sex, gender, and fundamental questions of existence like how her children should identify themselves.... 

263. By referring to Jane with a masculine name and incorrect pronouns without notifying Mrs. Vitsaxaki or seeking her consent and by concealing these actions from Mrs. Vitsaxaki, Defendants substantially burdened Mrs. Vitsaxaki’s ability to exercise her religion....

266. During the three-month (at a minimum) period that Defendants were concealing from Mrs. Vitsaxaki the actions taken to socially transition Jane, Mrs. Vitsaxaki was unable to exercise her religion by choosing to educate Jane in an environment that would not have undermined her religious beliefs.

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

Court Rules On Class Action Certification of Claims by Religious Objectors to Covid Vaccine

 In Chavez v. San Francisco Bay Area Rapid Transit District, (ND CA, Jan. 28,2024), a California federal district court refused to certify as a class action a suit on behalf of employees of the Transit District (BART) who were denied a religious exemption or accommodation from BART's Covid vaccine mandate. The court concluded that the disparate factual issues underlying the claims under Title VII and California's Fair Employment and Housing Act means that common issues of law or fact do not predominate. The court said in part:

Plaintiffs submitted nearly as many systems of belief and grounds for objection as they did applications. Whether or not any one request rests on a bona fide religious belief presents an individual inquiry that requires the consideration of evidence pertaining only to the response in question....

BART’s undue hardship showing—likely to be the dispositive issue in this action—also rests on individual factual issues....

It similarly concluded that common issues did not predominate in plaintiffs' First Amendment Free Exercise Claim, saying in part:

Plaintiffs cite myriad scripture and personal experiences, CDC VARS data and concerns regarding health consequences ... among others, as grounds for objection. Many identify non-vaccination as a core religious tenant, some characterize their decision as a “personal choice,” a number discuss medical concerns.... [T]he need to determine whether plaintiffs have met the bona fide religious belief threshold generates “an unmanageable variety of individual . . . factual issues,” and forecloses on class certification....

Finally, the court concluded that plaintiffs also failed to meet the requirement that a class action is the superior way to adjudicate the claims.

In UnifySCC v. Cody, (ND CA, Jan. 29, 2024), a different Northern District of California judge certified a class action (except as to damages) on behalf of 463 individuals who obtained a religious exemption from the Covid vaccine mandate of San Jose County but who, because they were in high risk roles, were placed on administrative leave until reassignments or transfers to lower risk positions became available.  The court ruled:

This Class is certified with respect to the following common questions regarding Defendants’ liability: 

1. Whether Defendants violated Plaintiffs’ right to free exercise and equal protection of the law by prioritizing medical exemptions over religious exemptions in high-risk settings; 

2. Whether Defendants’ Risk Tier System violated the Free Exercise Clause and Equal Protection Clause because it relegated Plaintiffs and the Class members to unpaid leave but allowed some unvaccinated or non-boosted employees to continue to work; 

3. Whether the County’s religious exemption and/or accommodation procedure was either non-neutral or not generally applicable such that it constitutes an individualized assessment ... and is thereby subject to strict scrutiny; 

4. Whether Defendants provided Individual Plaintiffs and the Class members with reasonable accommodation as required under FEHA and Title VII; and 

5. Whether Defendants violated the Establishment Clause by demonstrating hostility towards religion. 

The Class is NOT certified with respect to questions of damages.

Church Sues City Over Operation of Ministry for Homeless

Suit was filed yesterday in an Ohio federal district court seeking to enjoin the city of Bryan, Ohio from enforcing its zoning ordinances in an attempt to prevent a Christian church that ministers to the homeless from remaining open 24-hours a day. The complaint (full text) in Dad's Place of Bryan, Ohio v. City of Bryan, (ND OH, filed 1/22/2024), contends that the city has begun "a coordinated effort to exclude ministries from operating downtown." The city has charged the church's pastor with 18 criminal counts for allowing homeless to reside on the property for an extended amount of time in violation of zoning rules. The Church in its complaint contends that the city has violated the 1st and 14th Amendments, RLUIPA, the Fair Housing Act and the Ohio Constitution. First Liberty Institute issued a press release announcing the filing of the lawsuit.

UPDATE: Friendly Atheist has additional background on the city's concerns regarding the church's activities.

Sign Ordinance Restricting Anti-Abortion Protester Does Not Violate 1st Amendment

In Roswell v. Mayor and City Council of Baltimore, (D MD, Jan.19, 2024), a Maryland federal district court dismissed a suit by an anti-abortion sidewalk counselor who communicates with women entering and exiting a Planned Parenthood Clinic. A city ordinance prevented plaintiff from using A-frame signs in front of the clinic to communicate his religious convictions about abortions as well as information about alternatives to abortion. A permit to erect such signs can be obtained only by the owner of the property or an agent of the owner. Finding that the city ordinance did not violate plaintiff's free speech rights, the court said in part:

Plaintiff asks this Court to find that zoning ordinances cannot distinguish between the owners and tenants of adjacent properties utilizing A-frame signs for non-residential uses and those with no such property interest without running afoul of First Amendment principles. Fatal to Roswell’s position is the simple fact that the regulations do not “target speech based on its communicative content.” ...

The court also rejected plaintiff's free exercise of religion challenge, saying in part: 

Here, the challenged ordinances are unconcerned with religious exercise. They neither prohibit nor compel religious conduct. And even if the ordinances did burden religious exercise, a law that “incidentally burden[s] religion” does not violate the Free Exercise Clause if it is “neutral and generally applicable.”

Denial of Vaccine Mandate Exemption for Nurse Is Upheld

 In St. Hillaire v, Montefiore Medical Center, (SD NY, Jan. 16, 2024), a New York federal district court rejected claims of religious discrimination brought by a hospital's Patient Safety Manager who was denied a religious exemption from a state Covid vaccine mandate and subsequently was fired. Plaintiff is an Apostolic Pentecostal Christian.  Denying Plaintiff's claim under Title VII, the court said in part:

As a New York hospital system, Defendant is legally obligated to comply with the DOH Mandate and is subject to stringent penalties for non-compliance, including loss of its license.... Defendant could not have accommodated Plaintiff’s request because Plaintiff was a registered nurse... and was a person covered by the DOH Mandate. Had Defendant granted Plaintiff’s request for an exemption, it would have been in direct violation of New York State law, thus suffering an undue hardship.

The court also rejected plaintiff's 1st Amendment free exercise claim because defendant is not a state actor. 

State Regulation of Catholic Childcare Program Upheld

In South Hills Catholic Academy v. Department of Human Services, (PA Commonwealth Ct., Jan. 11, 2024), a Pennsylvania appellate court rejected a Catholic school's challenges to regulatory requirements imposed on it.  The state asserted that the school's program allowing parents to drop students off 45 minutes early and pick them up 90 minutes late constitutes an uncertified child care center. The school contended that the Department's regulations violate the Free Exercise and Establishment Clauses of the 1st Amendment and the freedom of conscience and religious practices clause of the Pennsylvania constitution. The court said in part:

Private School believes the Department’s regulations impermissibly infringe upon a religious school’s ability to hire staff “based upon their religious beliefs and their ability to transmit those beliefs to the individuals they instruct.”...

The Department’s regulations continue to require only “compliance” with existing civil rights statutes and regulation, from which religious schools are exempt. Therefore, we reject Private School’s contention that reference in the regulations to various civil rights laws infringes upon a religious school’s employment decisions.

With regard to Private School’s other asserted concerns, ..., Private School “has not explained how the regulations at issue interfere with the facility’s ability to communicate Church teachings,” and has “failed to identify any actual or imminent infringement upon [its] right.”... Accordingly, Private School’s “constitutional claims necessarily fail.”

Inmate's Speech and Religion Challenges to His Execution Method Are Not Dismissed, But Execution Not Enjoined

In Smith v. Hamm, (MD AL, Jan. 10, 2024), plaintiff, who is scheduled for execution by nitrogen hypoxia on January 25, challenges the legality of his execution on several grounds.  Among these are his claims that his free speech rights as well as his free exercise rights are violated because masking him will interfere with his making an audible statement and praying audibly during his execution.  The court concluded that plaintiff had made plausible claims that the execution protocol violates his First Amendment free speech rights and his religious free exercise rights under RLUIPA, the First Amendment and the Alabama Religious Freedom Act (as well as his 8th Amendment rights).  Therefore, it denied defendants' motion to dismiss those claims.  The court went on, however, to conclude that plaintiff had not shown a substantial likelihood of success on the merits of those claims. Therefore, the court refused to issue a preliminary injunction to bar execution of plaintiff. At issue in the case is the state's second attempt to execute plaintiff. A previous attempt to execute him by lethal injection failed when after 90 minutes of trying, authorities were unable to access his veins.

Court Limits Discussion of Religion in Trial for Blocking Abortion Clinic Entrance

In United States v. Gallagher, (MD TN, Jan. 5, 2024), a Tennessee federal district court ruled on the extent to which defendants can refer to their religious activities or beliefs and to the First Amendment in their upcoming criminal trial for violation of the Free Access to Clinic Entrances Act. Defendants are charged criminally with barricading the entrance to a Mt. Juliet, Tennessee abortion clinic in a so-called "rescue" operation. The court said in part:

It does not appear to be disputed that these defendants’ actions were motivated, at least in part, by their religious objections to the intentional termination of pregnancies. The Government argues, however, that evidence of those motivations would be “totally extraneous” to the “nature of the” charged offenses and should, therefore, be excluded.... The Government’s argument, however, is in significant tension with the FACE Act itself, which affirmatively places the defendants’ states of mind at issue by criminalizing only “intentional” acts taken “because [the victim] is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.” 18 U.S.C. § 248(a)(1). The defendants’ subjective motivations are, therefore, an unavoidable aspect of this case, and it is not clear to the court that those motivations can be accurately represented without at least some incidental reference to the details of their beliefs—which happen, in this instance, to be based in religion....

The court has already ruled that, as a matter of well-settled law, religious motivations are not a defense to a violation of either the FACE Act or the conspiracy statute.... The court, however, will not go so far as to wholly forbid the discussion of the defendants’ religious beliefs for the limited purpose of establishing or refuting intent or purpose.... 

... The defendants cannot turn an ounce of relevance into a gallon of irrelevant political messaging. The court, however, will not bar discussion of the defendants’ views altogether.

... When the defendants prayed or discussed their religious views, those specific actions were protected by the First Amendment. But if, in the next breath, they turned to discussing a plan to unlawfully obstruct the entrance of a clinic, then that conspiracy was just as illegal as it would have been if it had been the sole topic of conversation. Similarly, if they engaged in activities that would, in isolation, be protected by the First Amendment, but they did so while also violating the FACE Act through physical obstruction or intimidation, then the non-criminal components of their actions are no shield against prosecution for the criminal ones. Any argument to the contrary would be improper and will be barred.

The court also ruled that defendants may not present evidence or arguments at trial on various other matters including jury nullification, selective prosecution, potential sentences and good character. (See prior related posting.)

City Could Not Require Pastor's Certificate as Condition of Vaccine Exemtpion

In Carrero v. City of Chicago, (ND IL, Jan. 2, 2024), an Illinois federal district court allowed a Chicago city employee who has been placed on unpaid leave for refusing to comply with the city's Covid vaccine mandate to move ahead with several claims.  The employee was denied a religious exemption from the vaccine mandate because he did not furnish a signed affirmation of belief from his pastor who had a policy of not signing such forms for his 15,000 mega-church members. Allowing plaintiff to move ahead with his 1st Amendment Free Exercise claim, the court said in part:

... At this point of the proceedings, it is reasonable to infer that the City denied Carrero’s application because his religious leader did not confirm the validity of his belief....

Carrero’s beliefs may not be sincerely held or religious in nature. The City is free to challenge those points in the exemption process and in this case....

But the City may not single out religious beliefs merely because they do not conform to the tenets of a religion as interpreted by a spiritual leader. Because that is what Carrero alleges the City’s Policy did to him, he has sufficiently pled that the Policy’s exemption language is not neutral as applied to him....

The court also allowed plaintiff to move ahead with claims under the Illinois Religious Freedom Restoration Act, the Illinois Human Rights Act and Illinois' Civil Rights Act.

Parents Sue School for Using Teen's Preferred Masculine Name and Pronouns

Suit was filed yesterday in a Michigan federal district court by parents of a 13-year-old biologically female child whose school concealed from the parents that the school was referring to the child by masculine name and male pronouns. The complaint (full text) in Mead v. Rockford Public School District, (WD MI, filed 12/18/2023), alleges in part:

7. These actions ... violated the Meads’ long-settled constitutional rights. The First Amendment protects their right to exercise their religion by directing G.M.’s education and upbringing, including on fundamental questions of existence like how G.M. identifies herself. And the Fourteenth Amendment guarantees their fundamental right to make decisions about her upbringing, education, and healthcare. 

8. By intentionally concealing from the Meads important information about their daughter’s education and health—on a subject as morally fraught as gender confusion—the District denied them these constitutional rights. Absent extraordinary circumstances, a school district’s concealment from parents of such information violates the Constitution.

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

Church Buses Used in Released-Time Programs Not Subject to School Bus Regulations

In CBM Ministries of South Central Pennsylvania, Inc. v. Commonwealth of Pennsylvania, (PA Commonwlth.. Ct., Dec. 18, 2023), the Pennsylvania Commonwealth Court in a 5-2 decision held that privately owned vehicles used by a Bible ministry to transport children from public schools to off-site locations for religious instruction during the school day in released-time programs are not subject to state standards for school buses. CBM operates 87 released-time programs in 8 Pennsylvania counties. It contended that requiring it to comply with the heightened standards for school buses would burden its religious exercise in violation of the Pennsylvania Religious Freedom Protection Act (RFPA). The majority concluded:

While CBM does transport children to and from public schools for the released time program, DOT’s regulations, by their plain language, do not apply to vehicles that are neither owned by nor contracted with a school. In other words, the text of the enabling statute expressly limits the reach of DOT’s regulatory power in this area.

President Judge Jubelirer, joined by Judge Wojcik dissented, saying in part:

I fear the Majority’s overly narrow reading of the enabling statute thwarts the legislature’s intent, pursuant to its police power, to empower PennDOT to keep children safe when they are being transported to and from public school during the school day.

The dissenters rejected plaintiff's religious freedom argument saying that Vehicle Code provisions that protect the public from unsafe operation of motor vehicles are explicitly excluded from coverage under the RFPA, and that "for a given regulation to violate RFPA, it must 'substantially den[y an organization] a reasonable opportunity to engage in activities . . . fundamental to its religion.'"

Virginia Supreme Court Rules For Teacher Who Refused To Use Student's Preferred Pronouns

In Vlaming v. West Point School Board, (VA Sup. Ct., Dec. 14, 2023), the Virginia Supreme Court, in a 4-3 decision, held that a teacher who was fired after refusing for religious reasons to use masculine pronouns in referring to a biologically female student has a claim for violation of the free exercise provisions of the Virginia state Constitution. The majority, in a 73-page opinion, held that the Virginia Constitution requires greater accommodation than does the First Amendment of the U.S. Constitution when a neutral law of generally applicability conflicts with a religious belief.  The majority said in part:

[W]e hold that in the Commonwealth of Virginia, the constitutional right to free exercise of religion is among the “natural and unalienable rights of mankind,” ... and that “overt acts against peace and good order,”  correctly defines the limiting principle for this right and establishes the duty of government to accommodate religious liberties that do not transgress these limits.

The majority also held that plaintiff had adequately stated a claim under the Virginia Religious Freedom Restoration Act as well as a claim for violation of the free speech and due process provisions of the Virginia Constitution. The majority said in part:

Because the gravamen of Vlaming’s free-speech claims involves an allegation of compelled speech on an ideological subject, we hold that the circuit court erred when it dismissed Vlaming’s free-speech claims....

At the time that the School Board fired Vlaming, no clearly established law — whether constitutional, statutory, or regulatory — put a teacher on notice that not using third-person pronouns in addition to preferred names constituted an unlawful act of discrimination against transgender students. If the government truly means to compel speech, the compulsion must be clear and direct.

Finally the majority concluded that plaintiff adequately alleged that the School Board had breached his contract.

Justice Powell, joined by Chief Justice Goodwyn concurred in part, saying in part:

I write separately to clarify that, in my opinion, the proper test to evaluate a free exercise claim under Article I, Section 16 of the Virginia Constitution is traditional strict scrutiny as expressed in Sherbert v. Verner.... I disagree with the majority’s conclusion “that ‘overt acts against peace and good order,’ ... correctly defines the limiting principle for this right [in Article I, Section 16] and establishes the duty of the government to accommodate religious liberties that do not transgress these limits.”

Justice Mann filed a 64-page opinion dissenting in part. He said in part:

I dissent from the majority’s analysis and interpretation of Article I, Section 16.... The majority’s proposed limiting principle for the free exercise provision ... is not supported by the plain words of our Constitution, its history, our legal precedent, or legislative action of the General Assembly. I also dissent with respect to the majority’s rulings on Vlaming’s free speech and due process claims. Regarding Vlaming’s free-exercise claim, the majority establishes a sweeping super scrutiny standard with the potential to shield any person’s objection to practically any policy or law by claiming a religious justification for their failure to follow either.,,, 

Where a claimant alleges that the government was hostile towards his religious free exercise or that the government did not neutrally apply the law, the reviewing court should apply strict scrutiny to determine whether the government’s enforcement was narrowly tailored to achieve a compelling state interest....

As for Vlaming’s free speech and due process claims, the facts speak for themselves. Under well-established federal precedent, Vlaming’s allegations as pleaded establish that Vlaming was (1) a public employee engaged in curricular speech pursuant to his official job duties, (2) not speaking as a private citizen on a matter of public concern; and (3) had ample notice that his refusal to use Doe’s preferred pronouns was a violation of the School Board’s policies, and the School Board provided him an opportunity to be heard on his discipline.... 

Justice Powell and Chief Justice Goodwyn joined the portions of Justice Mann's opinion that relate to the Virginia Religious Freedom Restoration Act, and the free speech and due process provisions of the Virginia Constitution.

4th Circuit: Nation of Gods and Earths May Qualify as a Religion

In Greene v. Lassiter, (4th Cir., Dec.13, 2023), the U.S. 4th Circuit Court of Appeals in a pro se suit by a prisoner held that the district court should not have dismissed plaintiff's RLUIPA and the 1st Amendment claims.  At issue is whether Nation of Gods and Earths ("NGE") qualifies as a "religion" for purposes of those provision. The court held that even though plaintiff's complaint said that NGE is a God-centered culture that should not be misconstrued as a religion, this should not be treated as a binding admission.  The court said in part:

Greene’s statement wasn’t an “intentional and unambiguous waiver[] that release[d] the opposing party from its burden to prove the facts necessary to establish the waived conclusion of law.”... To the contrary, Greene has consistently maintained that he asserts rights under RLUIPA and the First Amendment for being denied the ability to practice his faith or belief system, even if NGE eschews the label of “religion.” And in RLUIPA, Congress “defined ‘religious exercise’ capaciously” and “mandated that this concept ‘shall be construed in favor of a broad protection of religious exercise....

Our review of the record shows that there may be at least an open factual question about whether NGE qualifies as a religion for RLUIPA and First Amendment purposes, making summary judgment inappropriate.