Chabad's Long-Running Suit Over Land Use Dismissed In Part

In Lubavitch of Old Westbury, Inc. v. Incorporated Village of Old Westbury, New York, (ED NY, Jan. 31, 2023), a New York federal magistrate judge recommended that the district court dismiss on various procedural and jurisdictional grounds (including statute of limitations) a number of the claims in a long-running suit by an Orthodox Jewish Chabad organization that has been unable to obtain permission to use some seven acres of property for religious education, worship and related activities. The magistrate judge began his lengthy Report and Recommendation as follows:

Presently before the Court is a motion to partially dismiss this action, which has been pending for more than fourteen years and involves factual allegations going back to 1994. In the years since the initial complaint was filed on December 17, 2008, this case has been assigned (and then reassigned) to four District Judges ... and four Magistrate Judges.... Furthermore, numerous law firms and attorneys have come and gone on behalf of the parties over this lengthy time span. As a reminder to the parties, they have an affirmative obligation under Federal Rule of Civil Procedure ("Rule") 1 "to secure the just, speedy, and inexpensive determination of every action and proceeding."...

A 237-page Second Amended Complaint in the case asserted 17 causes of action under the 1st, 4th, 5th and 14th Amendments, RLUIPA and the state Constitution.

Federal Reserve Bank Can Be Sued Under Both Title VII and RFRA

In Gardner-Alfred v. Federal Reserve Bank of New York, (SD NY, Jan. 18, 2023), a New York federal district court held that two former employees of the Federal Reserve Bank of New York may bring Title VII as well as RFRA and Free Exercise claims against FRBNY for denying them a religious exemption from the Bank's COVID vaccine mandate. It distinguished cases holding that other governmental entities can be sued only under Title VII. It held however that New York City and New York state anti-discrimination laws are pre-empted by federal law giving NYFRB the power to dismiss employees.

NY Governor Vetoes Bill on Notifying Defendants of Right to Secular 12-Step Programs

On Dec. 23, New York Governor Kathy Hochul vetoed New York Senate Bill 7313A which would have required courts, in imposing alcohol or substance abuse treatment on a defendant, to inquire if the defendant has religious objections to the program, and if the defendant does, to identify an alternative nonreligious treatment program for the defendant.  As reported by Only Sky, the veto was met with substantial criticism.  In her Veto Memo, Governor Hochul explained her veto in part as follows:

While I support the right to a substance use treatment program that will be most effective, codifying the right to object to mandated attendance at a religious substance use treatment program sets an uncomfortable precedent in that it may invite future selective legislative efforts to inject a similar burden upon judges to inform litigants of their rights to opt out of other court mandates. This process may raise questions whether litigants enjoy rights to opt out of other mandates on religious grounds where the underlying statutes have not been amended to codify those rights. Given that defendants already have the right to request nonreligious treatment, this bill is unnecessary and imposes an overly rigid burden on courts and judges.

Jewish Congregation Sues for Return of Deeds To 5000 Burial Plots

 An unusual suit was filed this week in a New York state trial court by a Bukharian Jewish religious organization which is seeking to recover nearly 5,000 burial plot deeds that the organization says belong to it. The complaint (full text) in Bukharian Jewish Community Center v. Nektalova, (NY County Sup. Ct., filed 12/6/2022) alleges that United Bukharian Congregation holds cemetery documents in trust for members of the Bukharian Jewish community in New York. One of its members, 92-year old Roman Nektalov, was in charge of providing the relevant deeds to cemeteries and families when funerals of members were being arranged.  During COVID, Nektalov took the deeds to his home so he could distribute them from there. A domestic dispute arose between Nektalov and his wife. His wife obtained a protective order which prevents Nektalov from accessing the deeds in his home. She later filed for divorce and refuses to turn the deeds over to the religious organizations, claiming that they are marital property. The Jewish organizations ask the court to hold that they are the rightful owners of the deeds, and to order them turned over to them or to a receiver. AMNY reports on the lawsuit. [Names in post corrected]

Suit By Law Prof and Internet Site Challenges NY Statute on Online Hate Speech

 In May, the New York legislature enacted A7685-A requiring social media networks to provide a means for its users to report postings which vilify, humiliate or incite violence group on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.  They must also have a policy on responding to and addressing such postings.  Yesterday-- two days before the law is to go into effect-- suit was filed in a New York federal district court by law professor and blogger Eugene Volokh and the social media platform Rumble challenging the law on free speech as well as overbreadth and vagueness grounds. The complaint (full text) in Volokh v. James, (SD NY, filed 12/1/2022), alleges in part:

New York cannot justify such a sweeping regulation of protected speech. The Online Hate Speech Law violates the First Amendment because it burdens the publication of speech based on its viewpoint, unconstitutionally compels speech, and is overbroad. It is also vague in violation of the Fourteenth Amendment....and preempted by Section 230 of the Communications Decency Act. Given well-settled Supreme Court precedent, the New York’s law must be enjoined and struck down.

Foundation for Individual Rights and Expression issued a press release announcing the filing of the lawsuit.

New York Governor Announces Steps to Combat Hate Crimes

Earlier this week, New York Governor Kathy Hochul announced a number of steps to combat hate crimes. On Nov. 22, the Governor signed A1202 (full text) which makes mandatory rather than just permissive the requirement that sentences for hate crimes include an appropriate program, training session, or counseling session directed at hate crime prevention and education. She also signed A5913A (full text) which requires the state Division of Human Rights to develop and implement a campaign to promote acceptance, inclusion and tolerance of the state's diverse population with the purpose of combatting bias, hatred and discrimination based on religion, race, color, creed, sex, ethnicity, national origin, age, disability, sexual orientation, and gender identity or expression. She also announced plans for a Unity Summit and emphasized grant funding available to strengthen safety measures to protect against hate crimes.

NY Child Victim Act Revives Claim Even Though Prior Order of Dismissal Did Not Specify Statute of Limitations Grounds

In D.P. v. Riverside Church in the City of New York, (NY Cnty. Sup. Ct., Nov. 14, 2022), a New York state trial court refused to dismiss on res judicata grounds a suit against Riverside Church alleging abuse of a teenage player by the founder of a Harlem basketball program sponsored by the church. A federal court lawsuit making similar allegations was dismissed in 2008 after plaintiff filed a stipulation of dismissal.  While the federal court's order of dismissal did not state the grounds for dismissal, plaintiff in this case filed an affidavit saying that the rationale was the statute of limitations.  The New York state court held that since the Child Victim Act revived causes of action that had previously been dismissed on limitations grounds, it would allow plaintiff to move ahead with the suit, saying in part:

As the Federal case was discontinued in 2008 and makes no mention as to why same occurred this court must give every deference to the party seeking an opportunity to proceed with this case under the CVA on the merits.

2nd Circuit Remands Challenge to Emergency Ban of Unvaccinated Children from Public Places

In M.A. v Rockland County Department of Health, (2d Cir., Nov. 9, 2022), the U.S. 2nd Circuit Court of Appeals sent back to the trial court a free exercise challenge to Rockland County, New York's Emergency Declaration barring children who were not vaccinated against measles from places of public assembly.  Children with medical exemptions were exempt from the ban. The court said in part:

Because there are factual issues relevant to whether the Emergency Declaration was neutral and generally applicable, the district court erred in granting summary judgment in favor of Defendants on Plaintiffs’ claim that the Emergency Declaration violated their rights under the Free Exercise Clause. While a reasonable juror could conclude that [County Executive] Day’s statements evinced religious animus, rendering the Declaration not neutral, a reasonable juror could also conclude the opposite. Similarly, there are disputes of fact regarding whether the Declaration, in practice, primarily affected children of religious objectors or whether there was a sizable population of children who were unvaccinated for a variety of non-medical and non-religious reasons. There are also disputes as to whether the County’s purpose in issuing the Declaration was to stop the spread of measles or to encourage vaccination. Given these fact-intensive issues, the district court’s grant of summary judgment on Plaintiffs’ Free Exercise Claim was erroneous.

Judge Park filed a concurring opinion, saying in part:

In the spring of 2019, Rockland County quarantined children who were unvaccinated for measles for religious reasons— prohibiting them from entering any public place—but not children who were unvaccinated with medical exemptions. County officials did not even try to hide their reasons for engaging in this “religious gerrymander[ing],” which served to isolate, target, and burden Plaintiffs’ religious practices.... To them, Plaintiffs were “anti-vaxxers” who were “loud, very vocal, [and] also very ignorant.”...

Court Upholds NY Law Banning Bars from Opening on New Year's When It Falls on Sunday

In Eris Evolution, LLC v. Bradley, (ED NY, Nov. 8, 2022), a New York federal district court rejected an Establishment Clause challenge to a provision in New York's liquor laws that allows bars to apply for permits to stay open all night on New Year's except when New Year's falls on a Sunday. The court concluded that the U.S. Supreme Court's 1961 decision in McGowan v. Maryland upholding Sunday closing laws forecloses plaintiff's claim.  The court said in part:

McGowan holds that a law with a secular purpose does not violate the Establishment Clause; it does not hold that providing a uniform day of rest is the only such purpose. Indeed, the Supreme Court enumerated the exceedingly broad categories of “health, safety, recreation and general well-being.” ... The only available legislative history states that the law at issue was amended in 1950 “to protect the health of the people.”...

Eris must do more than show that the law is irrational; it must also show that its real purpose is to advance a particular religion or religion in general. This it has failed to do.

Suit Challenges New York Ban on Firearms in Houses of Worship

Suit was filed this week in a New York federal district court challenging the constitutionality of New York's ban on carrying firearms in houses of worship. The complaint (full text) in His Tabernacle Family Church, Inc. v. Nigrelli, (WD NY, filed 11/3/2022) alleges that the ban violates the free exercise, Establishment Clause, Second Amendment, and equal protection rights of a church and its pastor.  The complaint says in part:

S51001 forbids Pastor Spencer and the Church’s members, under threat of criminal penalties, from exercising their religious conviction to carry firearms into the Church to protect themselves and other congregants.....

[S51101]  subjects houses of worship to disfavored treatment while treating comparable secular organizations, such as retail stores or restaurants, more favorably than those offering religious exercise....

A church’s authority over who may enter the sanctuary and under what circumstances lies at the very heart of “the general principle of church autonomy” protected by the Establishment Clause.....

First Liberty issued a press release announcing the filing of the lawsuit. Last month, in another case, the same court issued a temporary restraining order barring enforcement of this statutory provision. (See prior posting.)

Buffalo Catholic Diocese Reaches Settlement With New York AG In Suit Over Handling of Sex Abuse Claims

The Catholic Diocese of Buffalo announced yesterday in a press release and a Letter to the Faithful that it has reached a settlement with the New York Attorney General in the suit brought against it and two of its former bishops alleging that they mishandled complaints of sexual abuse of minors and vulnerable adults. (See prior posting.) The provisions of the Stipulated Final Order (full text) in People of the State of New York v. Diocese of Buffalo, (SD NY, Oct. 24, 2022) were described by Bishop Michael Fisher in part as follows:

The settlement that the Diocese and the New York Attorney General have agreed to confirms that the rigorous policies and protocols the Diocese has put in place over the past several years are the right ones to ensure that all young people and other vulnerable persons are safe and never at risk of abuse of any kind by a member of the clergy, diocesan employee, volunteer, or member of a religious order serving in the Diocese of Buffalo.  At the same time, we have strengthened our Safe Environment policies with the Priest Supervision Program which I implemented in June of last year to account for priests removed from active ministry, and with the additional appointment of a new Child Protection Policy Coordinator. We hope that these initiatives, along with our commitment to producing an additional detailed annual compliance audit by an independent auditor, will provide further evidence of our commitment to the level of accountability and transparency that all Catholic faithful and the broader public rightly deserve and require.

NY Gun Ban at Places of Worship Violates 2nd Amendment

In Hardaway v. Nigrelli, (WD NY, Oct. 20, 2022), a New York federal district court issued a temporary restraining order barring enforcement of the provision in New York law that prohibits possession of firearms at "any place of worship or religious observation." The suit was filed by two clergy who allege that as leaders of their churches they want to carry firearms on church premises to keep the peace. The court concluded that the state restriction violates the Second Amendment, saying in part:

Here, the state cites to a handful of enactments in an attempt to meet its "burden" to demonstrate a tradition of accepted prohibitions of firearms in places of worship or religious observation.... The notion of a "tradition" is the opposite of one-offs, outliers, or novel enactments....

[T]he Nation's history does not countenance such an incursion into the right to keep and bear arms across all places of worship across the state. The right to self-defense is no less important and no less recognized at these places.

Volokh Conspiracy has more on the decision. [Thanks to Steven H. Sholk for the lead.]

Vaccine Objector Loses Challenge

In Marte v. Montefiore Medical Center, (SD NY, Oct. 12, 2022), a New York federal district court dismissed claims by a former Medical Center employee who sued after the Medical Center refused to provide her a reasonable accommodation when she refused to receive a COVID-19 vaccine which was required for all employees.  The court rejected her Title VII claim saying in part:

Plaintiff does not allege that she informed Defendant that she had a religious objection to the COVID-19 vaccination, or even that Defendant was aware that she has a religious objection to the vaccine; she pleads only that she told her employer she did not want the vaccine and asked for "a reasonable accommodation as defined by law." ... Defendant could not have discriminated against Plaintiff on the basis of her religious beliefs if Defendant was unaware of those beliefs....

Even if Plaintiff had pleaded a prima facie claim for religious discrimination, her argument is foreclosed by the Second Circuit's decision in We The Patriots. Defendant correctly argues that Plaintiff's requested accommodation would qualify as an undue hardship because it required Defendant to violate the law.

The court also rejected her free exercise, equal protection and other challenges.

New York Yeshivas Sue Over Substantial Equivalency Guidelines

In New York, a group of yeshivas and two organizations have sued challenging the state Board of Regents recently adopted guidelines implementing NY Education Law §3204(2) which requires instruction in nonpublic schools to be at least "substantially equivalent" to that in public schools in the same city or district. The complaint (full text) in In re Parents for Educational and Religious Liberty in Schools, (Albany County Sup. Ct., filed 10/9/2022), alleges in part:

... [T]he New York State Education  Department... has spent the last half decade seeking to impose greater requirements and heightened oversight on these schools than are imposed on other schools in New York, whether public or private....

First, the New Regulations violate the New York State Administrative Procedures Act ... because the public comment process was a sham.... Here, NYSED received more than 300,000 comments in opposition to the proposed regulations but did not truly consider them and did not make any substantive revisions....

Second, the New Regulations violate SAPA by imposing on yeshivas obligations and restrictions not found in other schools. Only yeshivas ... will be prohibited from offering instruction ... in a student’s home language....

Third, the New Regulations create an impermissible de facto licensing requirement through the review and determination process....

The New Regulations frustrate the Petitioners’ constitutionally protected rights to the free exercise of religion and free speech, and violate their due process rights and right to equal protection. 

Hamodia reports on the lawsuit.

COVID Vaccine Mandate Without Religious Exemption Is Upheld

In Does v. Hochul, (ED NY, Sept. 30, 2022), a New York federal district court dismissed challenges to New York's COVID vaccine mandate for healthcare workers brought by five employees with religious objections to the vaccine. In evaluating plaintiffs' free exercise claims, the court concluded that the regulation, which contains no religious exemption, is subject only to rational basis review, saying in part:

The plaintiffs argue that the mandate is not neutral because it includes a medical exemption, and thus “treats religious exemptions less favorably than some nonreligious exemptions;” in the plaintiffs’ words, this “double standard is not a neutral standard.”... 

Section 2.61 is neutral on its face. It does not refer to religion at all, and applies to “all persons employed or affiliated with a covered entity” who could “potentially expose other covered personnel, patients or residents to” COVID-19; the only exception is for employees with medical conditions that qualify for a medical exemption...

The rule at issue in this case involves no “singling out” of religious employees. Indeed, Section 2.61 applies equally to all employees who can be vaccinated safely, regardless of their religious beliefs or practices, whether they have political objections to the vaccine, or question their efficacy or safety, or any of the many other reasons that people choose not to get vaccinated....

The court also rejected plaintiffs' Title VII challenge, saying in part:

The sole “accommodation” the plaintiffs seek—a religious exemption from the vaccine requirement— would impose an undue hardship on the Private Defendants because it would require them to violate state law.

Village Residents Lack Standing In Establishment Clause Challenge To Zoning Law

In Citizens United to Protect Our Neighborhoods v. Village of Chestnut Ridge, New York, (SD NY, Sept. 30, 2022), a New York federal district court dismissed for lack of standing a suit by a civic organization and Village residents alleging that the Village's new zoning code violated the Establishment Clause by favoring one religious group, Orthodox Jews.  The Code created new categories of religious uses and houses of worship, including "residential gathering places" so that single-family homes could be opened for religious activities, subject to additional parking requirements. This facilitated small-scale worship services often used by Orthodox Jews who for religious reasons cannot drive on the Sabbath and holidays. The court said in part:

Plaintiffs claim the new zoning amendments “target religious uses with special favorable treatment over secular uses.” (Id.) However, Plaintiffs have not identified any injury, nonetheless a particularized and concrete one. The law is clear that generalized grievance is insufficient to establish standing....

Individual Plaintiffs claim they have direct exposure standing because the New Zoning Law was rushed into law and gives preferential treatment to OJC and religious uses over secular uses, such that “the construction of an untold number of houses of worship” will serve as “constant reminders of the law and its endorsement of religion.” ... This is an insufficient basis ... for finding direct exposure standing....

NY Board Of Regents Adopts "Substantial Equivalency" Guidelines For Private And Religious Schools

As reported by JTA, the New York Board of Regents yesterday approved the Final Substantial Equivalency Regulation (full text) (summary) which implements NY Education Law §3204(2) requiring instruction in nonpublic schools to be at least "substantially equivalent" to that in public schools in the same city or district. Originally proposed in March (see prior posting), the Regulation provides multiple pathways for private and religious schools to demonstrate compliance. The Regulation garnered increased attention after the New York Times on Sunday published a lengthy article setting out the findings of its study of the inadequacies of secular instruction in a number of Hasidic Jewish schools. (It also posted the article in Yiddish on its website.) The Forward also has background on the new rule.

New York Violates Speech Rights of Adoption Agency By Requiring Placement With Unmarried and Same-Sex Families.

In New Hope Family Services, Inc. v. Poole, (ND NY, Sept. 6, 2022), a New York federal district court issued a permanent injunction prohibiting the state of New York from requiring New Hope, a religiously affiliated social service agency, to provide adoption services to unmarried or same-sex couples. The state Office of Children and Family Services contended that New Hope's policy of referring such clients to other agencies violated its anti-discrimination rules. Citing a previous holding by the Second Circuit, the court concluded that "by compelling it to place children with unmarried and same-sex couples, OCFS is necessarily compelling New Hope to engage in the speech required for that conduct...." While agreeing that the state has a compelling interest in avoiding discrimination and increasing the pool of potential adopting families, the court held that OCFS's rule is not narrowly tailored to advance those interests:

New Hope's "recusal-and-referral" practice was a more narrowly tailored means of avoiding discrimination than the closure of New Hope's adoption operation.

Eminent Domain Violated Rights of Chabad

In Chabad Lubavitch of the Beaches, Inc. v. Incorporated Village of  Atlantic Beach, (ED NY, Sept. 6, 2022), a New York federal district court granted a preliminary injunction, concluding that an attempt to acquire the property of a Jewish religious group by eminent domain likely violated the group's 1st Amendment free exercise rights. Chabad acquired the property in order to build a center on it. Eminent domain proceedings were initiated shortly after Chabad held a Menorah lighting ceremony on the property. The court explained:

[T]he Village’s acquisition decision was made in a manner intolerant of Chabad’s members’ religious beliefs and which would restrict Chabad’s practices because of its religious nature. Thus, the Village’s acquisition decision was targeted and not done neutrally, thereby requiring the Court to apply strict scrutiny in deciding whether that decision is constitutionally permissible. 

... The Village never inquired from the Property’s prior owner whether he was interested in selling the Property ... notwithstanding it being adjacent to and/or in very close proximity to Village-owned and controlled properties and it having sat vacant for three years, with a prominent “For Sale” sign having been erected in front of the Property for the last two of those three years.... Instead, for vague reasons, not strongly supported by direct evidence ... the Village’s apparent urgency to acquire the Properties intensified during the same time when Chabad purchased the Property....

Further, the several anti-Semitic comments posted to the FB Group page after the January 10 open meeting, i.e., community member comments, add to the suspicion caused by the timing of events and call into question the Village’s stated motivation for acquiring the Property by eminent domain....  [O]ne of the Village Trustees, was an administrator/monitor of the FB Group; thus, it is difficult not to conclude that at least one member of the Village Board was aware of several strong opponents to Chabad’s presence in the Village, based upon impermissible religious animus.

Jewish School Lacks Standing In Suit Claiming Religious Discrimination

In Ateres Bais Yaakov Academy of Rockland v. Town of Clarkston, (SD NY, July 12, 2022), a New York federal district court dismissed for lack of standing a suit under RLUIPA and federal civil rights laws brought by an Orthodox Jewish school ("ABY") against a New York town and a citizens group.  The suit alleged that the defendants, motivated by discrimination against Orthodox Jews, prevented the school from closing the purchase of a building owned by Grace Baptist Church. The court said in part:

... ABY fails to sufficiently establish that its claims based on the denial of the building permit application are ripe such that it suffered an “actual, concrete injury” because the ZBA never issued a final decision on ABY’s appeal and variance application. In other words, the ZBA’s nonfinal decision here does not “give rise to an injury that is sufficiently concrete and particularized to satisfy Article III.”...

... ABY fails to sufficiently allege how the Town Defendants’ conduct “constrained or influenced” GBC’s decision to stop agreeing to amend the contract and to terminate it on May 16, 2019.... Accordingly, the Court concludes that ABY has failed to sufficiently establish standing for its second alleged injury in fact with respect to the Town Defendants’ conduct. Consequently, the Court dismisses all of ABY’s claims against the Town Defendants and its § 1985 conspiracy claim against all Defendants....