Supreme Court Denies Review In New York Vaccine Mandate Case

Last Thursday, the U.S. Supreme Court denied review in Dr. A v. Hochul, (Sup. Ct., certiorari denied 6/30/2022). This is another of the many cases that contend COVID vaccine mandates-- this time for New York healthcare workers-- with medical, but without religious, exemptions violate the Free Exercise clause. Justice Thomas, in an opinion joined by Justices Alito and Gorsuch, dissented from the denial of certiorari, saying in part:

[T]here remains considerable confusion over whether a mandate, like New York’s, that does not exempt religious conduct can ever be neutral and generally applicable if it exempts secular conduct that similarly frustrates the specific interest that the mandate serves. Three Courts of Appeals and one State Supreme Court agree that such requirements are not neutral or generally applicable and therefore trigger strict scrutiny. Meanwhile, the Second Circuit has joined three other Courts of Appeals refusing to apply strict scrutiny. This split is widespread, entrenched, and worth addressing.

This case is an obvious vehicle for resolving that conflict.

The Supreme Court last December, by the same 6-3 vote, had denied an injunction pending the Supreme Court's review of the certiorari petition. (See prior posting.)

New York Court Reaffirms Its Decision Upholding Required Coverage For Medically Necessary Abortions

In Roman Catholic Diocese of Albany v. Vullo, (NY App., June 2, 2022), a New York intermediate appellate court, in a case on remand from the U.S. Supreme Court, reaffirmed its holding rejecting a challenge by several religious organizations and other plaintiffs to a New York administrative regulation  requiring health insurance policies in New York to provide coverage for medically necessary abortion services. (See prior posting) The U.S. Supreme Court had vacated the original judgment and remanded the case for further consideration in light of Fulton v. Philadelphia. (See prior posting.)

NY School Districts Not Required To Provide Bussing For Religious Schools On Days Public Schools Are Closed

In In the Matter of United Jewish Community of Blooming Grove, Inc. v. Washingtonville Central School District, (NY App., June 2, 2022), a New York state appellate court held that under New York statutory law, school districts are not required (but are permitted) to provide bus transportation to non-public school students on days when those schools are in session but public schools are closed. The suit was brought seeking to require the school district to provide transportation to students in Jewish schools in Kiryas Joel on all days when those schools were open.

2nd Circuit: Rabbinical College's Zoning Challenge Is Not Ripe For Review

In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, New York, (2d Cir., May 27, 2022), the U.S. 2nd Circuit Court of Appeals affirmed the dismissal of a suit challenging two Village zoning laws that prevent plaintiffs from building a rabbinical college on its 100-acre property.  The court held that the challenge to the laws fails on ripeness grounds. It concluded that the Village Board of Trustees' refusal to consider plaintiffs' petition to repeal completely the two laws cannot be considered to be the Board's final decision on the particular building plans, since the petition did not set out any details of the plans. It also concluded that the U.S. Supreme Court's decision last year in Pakdel v. City and County of San Francisco did not change the ripeness rules for challenging a zoning denial. (See prior related posting.) Rockland/Westchester Journal News reports on the 2nd Circuit's decision.

New York Enacts One-Year Window To Bring Old Adult Sex Abuse Cases

Yesterday New York Governor Kathy Hochul signed S66A (full text), a bill which creates a one-year window to bring previously time-barred civil actions for sexual assaults that were committed on an adult. New York Post reports on the bill. Previously, in 2019, New York enacted the Child Victims Act applying to prior child sexual abuse. (See prior posting.)

Dispute Over Kosher Certification Agencies Dismissed On Ecclesiastical Abstention Grounds

In Chimichurri v. Vaad Hakashrusof the Five Towns Far Rockaway, (Sup Ct Nassau Cnty NY, May 17, 2022), a New York state trial court dismissed on ecclesiastical abstention grounds a suit by a restaurant owner against a kosher certification agency.  The monopoly of a community-wide certification agency was broken when two rabbis formed a competing agency.  53 rabbis issued a letter urging members of the community not to patronized establishments certified by the new agency.  A restaurant making use of the new agency sued, claiming the letter cost it $156,000 per year in revenue. In dismissing the suit, the court said in part:

Here, the dispute is essentially one that involves the religious principles concerning the Kashrut, or Jewish dietary laws. Cases have long recognized that such disputes are ecclesiastical in nature....

It is apparent that the Defendant represents the efforts of the Five Towns and Rockaway community to break away from the historical disagreement over the laws of Kashrut and to develop generally agreed upon standards for that particular community. The Plaintiff chose to deviate from that. This Court is precluded, by the First Amendment, from considering the merits of the Plaintiff’s contentions arising from these facts.

The Forward reports on the decision.

Cert. Denied In Challenge To NY Repeal Of Religious Exemption To School Vaccinations

The U.S. Supreme Court yesterday denied review in F.F. v. New York, (Docket No. 21-1003, certiorari denied 5/23/2022). (Order List). In the case, a New York state appellate court rejected parents' constitutional challenges to New York's repeal of the religious exemption from mandatory vaccination for school children. (See prior posting). SCOTUSblog's case page has links to the filings in the case.  Christian Post reports on the denial of certiorari.

Plaintiff Lacks Standing To Challenge No-Fault Divorce Law Under 1st Amendment

 In King v. State of New York, (2d Cir., May 9, 2022), the U.S. 2nd Circuit Court of Appeals held that plaintiff lacked standing to challenge New York's no-fault divorce law on free exercise or Establishment Clause grounds. The court said in part:

Ms. King alleges that this law and the resulting divorce violated her Free Exercise and Establishment Clause rights by requiring her to become divorced despite her religious belief in marriage until death..... Because Ms. King alleges only the termination of a civil contract, she has not plausibly alleged that the civil judgment of divorce entered against her “sever[ed] the holy marriage covenant made before God,” ... or “chang[ed] her status under . . . the laws of God”....

Plaintiff In Abuse Case May Discover Psychological Report In Priest's Personnel File

In Harmon v. Diocese of Albany, (NY App. Div., April 21, 2022), a New York state appellate court upheld a trial court's discovery order in a case alleging sexual abuse of  plaintiff by a Catholic priest in the 1980's.  The trial court ordered the Diocese to turn over to plaintiff a memo, a report and correspondence in the priest's personnel file from a psychologist who had been retained by the the Bishop to determine whether it would be appropriate for the priest to resume his ministry and the risk of recidivism. The court also upheld the trial court's order requiring disclosure to plaintiff of the personnel files of 48 former priests whose names are on the Diocese's list of credibly accused clergy. Albany Times-Union reports on the decision.

Lev Tahor Leaders Sentenced To Prison

The U.S. Attorney's Office for the Southern District of New York announced last Thursday that two leaders of extremist Jewish sect Lev Tahor have been sentenced to 12 years in prison, followed by 5 years of supervised release, for child sexual exploitation offenses and kidnapping.  According to the announcement:

In or about 2017, [NACHMAN] HELBRANS arranged for his then-12-year-old niece, Minor-1, to be “married” to a then-18-year-old man.  Though they were never legally married, they were religiously “married” the following year, when Minor-1 was 13 and her “husband” was 19.  Lev Tahor leadership, including HELBRANS and [MAYER] ROSNER, required young brides ... to have sex with their husbands, to tell people outside Lev Tahor that they were not married, and to lie about their ages....

After [Minor-1's] mother fled and settled in New York with her children, HELBRANS and ROSNER devised a plan to kidnap Minor-1, then 14 years old, to return her to Guatemala and to her then-20-year-old “husband.”  In December 2018, they kidnapped Minor-1 and her brother in the middle of the night from a home in upstate New York and transported them through various states and, eventually, to Mexico.... At the time of the kidnapping, Lev Tahor leadership was seeking asylum for the entire Lev Tahor community in the Islamic Republic of Iran.

Times of Israel reports on the sentencing.

NY AG Orders Anti-Muslim Group To Stop Spying On The Muslim Community

 In an April 1 press release, New York Attorney General Letitia James announced that the office's Civil Right Bureau has sent a Cease and Desist Notification (full text) to an "anti-Muslim hate group" warning it to stop its discriminatory surveillance of the Muslim community. The Notification says in part:

The New York State Office of the Attorney General (OAG) has reviewed reports alleging that your organization, the Investigative Project on Terrorism (IPT), used paid informants and infiltrators to spy on Muslim houses of worship, Muslim advocacy groups, and prominent Muslim leaders. You are advised that such conduct could violate the New York Civil Rights Law and other state and federal laws. You are hereby instructed to cease and desist any ongoing or contemplated unlawful espionage operations against Muslims and Muslim organizations within the State of New York. Discrimination has no place in New York. The OAG will use every tool at its disposal to protect Muslim New Yorkers against unlawful intimidation campaigns.

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

Mandatory LGBTQ Anti-Discrimination Training Did Not Violate Title VII

In Zdunski v. Erie 2-Chautauqua-Cattaraugus BOCES, (WD NY, Feb. 16, 2022), a New York federal district court dismissed Title VII and state law religious discrimination claims brought by Raymond Zdunski, an account clerk at the Board of Cooperative Educational Services.  BOCES required all of its employees to attend LGBTQ anti-discrimination training after one of its employees requested accommodation for gender transition.  Zdunski refused, contending that the training was aimed at changing his religious beliefs on gender and sexuality and that attending would violate his religious beliefs. He was fired for insubordination. The court said in part:

Mr. Zdunski has not presented any evidence that the trainings were directed toward him or other Christian employees in a discriminatory manner....

Here, Mr. Zdunski's proposed accommodation—that he be excused from the mandatory LGBTQ anti-discrimination training—amounts to more than a de minimis cost to his employer's business operations. BOCES is bound by New York State law to provide annual anti-discrimination trainings for all employees and to maintain "an environment free of discrimination and harassment." See N.Y. Educ. Law Tit. 1 Art. 2 §§ 10, 13. Allowing Mr. Zdunski's requested accommodation to forego anti-discrimination trainings would have put his employer in the position of violating the training requirements set forth in DASA. An accommodation that would require an employer to run afoul of state law constitutes a substantial hardship and would be more than a de minimis cost to the employer.

New York Releases New Proposed Curriculum Rules For Nonpublic Schools

On March 10, the New York Education Department announced the release of the third version of Proposed Regulations (full text) to assure substantially equivalent instruction for non-public school students. According to Hamodia:

These regulations, like the those previously proposed, require periodic reviews of every nonpublic school by their LSA (local school district or authority).

Where they differ is that they offer a few paths for a nonpublic school to avoid those reviews, at least initially. One such path is “registration” — which is the technical term for a high school that administers the Regents examinations. Another is “accreditation” by an agency that is approved by the State Education Department....

Our analysis is that all of the non-Jewish private schools will be exempt from LSA reviews while a majority of yeshivos will not be exempt. As a result, these regulations governing the substantial equivalency reviews by LSAs will be applied exclusively at yeshivos.

Questionnaire Upheld As Basis For Vaccine Religious Exemption

In Ferrelli v. State of New York Unified Court System, (ND NY, March 7, 2022), a New York federal district court upheld the system for determining whether employees are entitled to religious exemptions from the COVID vaccine mandate imposed on all judges and employees of the New York state court system. The court described the screening process for exemptions in part as follows:

[T]he two most common reasons for seeking a religious exemption were (1) concern about the connection between COVID-19 vaccines and fetal cells, and (2) concern about the sanctity or purity of the applicant’s body.... Because the committee often found the information in applicants’ personal statements insufficient to assess the basis for and sincerity of the belief, it created a supplemental form.... In particular, Section A inquires as to applicants’ use of other medications and vaccinations that were tested using fetal cell lines, and requests explanations of inconsistencies in past or present use of such products.... Section B requests information about other medicines, medical treatments, vaccines and/or foods from which the applicant abstains due to her religious beliefs; when she began abstaining; and why her faith requires such abstention.....

The court concluded that this exemption process was neutral and generally applicable, saying in part:

Defendants have not created a system of individualized exemptions and refused to extend it to religious hardships. Rather, they have created a system of religious exemptions and refused to extend it to Plaintiffs based on responses, or lack thereof, to a supplemental form.

Faculty Seek To Sever Ties With Their Union Because Of Its Anti-Semitic Positions

Suit was filed last week in a New York federal district court by six faculty members at City University of New York who are seeking to sever all ties with the faculty union known as the Professional Staff Congress. They contend that they are required to use PSC as their exclusive bargaining agent. The complaint (full text) in Goldstein v. Professional Staff Congress/CUNY, (SD NY, files 1/12/2022), alleges in part:

3. All but one of the plaintiffs are Jewish, and several of them resigned from PSC following its adoption in June 2021 of a “Resolution in Support of the Palestinian People” ... that Plaintiffs view as anti-Semitic, anti-Jewish, and anti-Israel. Since the Resolution, PSC has continued to advocate positions and take actions that Plaintiffs believe to be anti-Semitic, anti-Jewish, and anti-Israel, in a manner that harms the Jewish plaintiffs and singles them out for opprobrium, hatred, and harassment based on their religious, ethnic, and/or moral beliefs and identity....

JNS reports on the lawsuit.

NY Governor Vetoes Bill Aimed At Preventing Hasidic Jews Moving Into Neighboring Town

Last week (Dec. 22), New York Governor Kathy Hochul vetoed Senate Bill 1811 which would have authorized the Town of Blooming Grove to create community preservation funds that could acquire property needed to preserve the character of the community. (Full text of bill.)  According to JNS, the Governor's Veto Memorandum read in part:

There have been well-documented tensions in Orange County between local elected officials and members of the Hasidic community. Similar tensions in the nearby Town of Chester resulted in litigation. It would be inappropriate to sign this legislation at this juncture, while facts are still being gathered about the situation. Therefore, I am constrained to veto this bill.

JNS reports further:

Blooming Grove is less than 10 miles north of the Chassidic enclave of Kiryas Joel, which has a population of some 30,000 people, nearly all of them chassidim. In recent years, members of the Orthodox community have been moving to nearby towns, including Chester and Blooming Grove. Restrictions on home building and land development are seen by some as an attempt to limit the growth of the Orthodox community in the region.

According to the Agudath Israel of America, which had been lobbying against the legislation for several months, “the real purpose of the bill is to buy up open lands in order to keep Chassidic Jews from purchasing this land and building homes in Blooming Grove … .”

Abuse Victim's Claim Against The Vatican Dismissed Under FSIA

In Robles v. Holy See (State of Vatican City), (SD NY, Dec. 20, 2021), a New York federal district court dismissed a suit against the Vatican by plaintiff who was sexually abused by Catholic priest Barry Bossa from 1981 to 1986. Plaintiff claimed that the Vatican's policies contributed to the abuse, and asserted negligence and vicarious liability claims against the Vatican. The court held that under the Foreign Sovereign Immunities Act, it lacks jurisdiction over the Holy See on the claims as plead, saying in part:

At least at this stage ... the exception to the FSIA for tort liability based on the actions of an employee provides jurisdiction for claims of negligence, negligent training, supervision, and retention, and international law claims against the Holy See....

The Holy See’s alleged conduct, such as promulgating policies and supervising its employees and officials, occurred in large part at the Vatican.... As a result, the Holy See is immune from Plaintiff’s claims arising from the Holy See’s conduct that occurred outside the United States....

The Tortious Act Exception also excludes “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused.” 28 U.S.C. § 1605(a)(5)(A). It is at this last step of the analysis that the last of Plaintiff’s remaining claims against the Holy See — negligence, negligent training, supervision, and retention, and violations of customary international law, all pursuant to respondeat superior based on the alleged actions of its putative employees— fail....

Case-law is clear that decisions related to employment and supervision are exactly the kind of policy judgments that the discretionary exclusion was designed to shield.....

Plaintiff’s broader negligence claim against the Holy See pursuant to respondeat superior, including his failure-to-warn and failure-to-report allegations ... is dismissed without prejudice, because, although perhaps a steep uphill climb, Plaintiff could conceivably allege facts in an amended complaint demonstrating lack of discretion as to these actions....

Christian Wedding Photographer Loses Suit Against NY Public Accommodation Law

In Emilee Carpenter, LLC v. James, (WD NY, Dec. 13, 2021), a New York federal district court refused to enjoin the application of New York's public accommodation law to a Christian wedding photographer who refuses on religious grounds to photograph same-sex weddings. The court rejected plaintiff's Free Speech and Free Exercise claims, saying in part:

New York has a compelling interest in ensuring that individuals, without regard to sexual orientation, have “equal access to publicly available goods and services.”...

The crux of Plaintiff’s claims is that her photography is the product of her unique artistic style and vision. Thus, an exemption for Plaintiff’s unique, nonfungible services would necessarily undermine, not serve, the State’s purpose, as it would “relegate [same-sex couples] to an inferior market” than that enjoyed by the public at large....

Antisemitism Of Sellers Impacts Court's Decision On Breach Of Contract

In Extended CHHA Acquisition, LLC v. Mahoney, (NY County Sup. Ct., Dec. 3, 2021) a New York trial court granted buyers specific performance of a multi-million dollar contract to purchase a business which sellers attempted to repudiate in order to obtain a better price elsewhere later. The decision is unusual in that anti-Semitism of the sellers was condemned explicitly by, and figured prominently in, the court's opinion. The court said in part:

To be clear, not only did the Seller breach the Purchase Agreement ..., but also the Seller's principals and their agent-representative ... actively took glee ... in being gratuitously abusive and disrespectful of the Buyer's principals and their religious observance. The degree to which [sellers] ... taunted the Buyer's principals to their face and mocked them behind their back because they are Jewish is horrifying and cannot be overstated. Their bigotry is disgusting and shameful, representing the worst and most depraved behavior that has no place in civilized society....

The record also establishes that the Seller worked in bad faith to prevent the closing..... On March 26, 2021, three days prior to the closing, ... Mr. Shemia called to ask to close on Tuesday, March 30, 2021, rather than March 29, 2021, due to Passover.... Mr. Achilarre refused....

Additionally, the Seller is not entitled to dismissal of the Buyer's cause of action for breach of the covenant of good faith and fair dealing.... [T]he evidence of the insidious antisemitism fueling the breach by the Sellers also makes out a claim for breach of the covenant of good faith and fair dealing.

JD Supra has more on the decision.

Supreme Court Upholds NY Vaccine Mandate Without Religious Exemption-- This Time Over 14-Page dissent

In Dr. A v. Hochul, (Sup. Ct., Dec. 13, 2021), the U.S. Supreme Court today by a vote of 6-3, refused to enjoin enforcement of New York's COVID vaccine mandate which has no religious exemptions.  This is a companion case to We The Patriots USA v. Hochul which reached a similar result with no Justices filing opinions to accompany the Court's order. (See prior posting.) In Dr. A, Justice Gorsuch filed a 14-page dissent, joined by Justice Alito. The opinion reads in part:

Under the Free Exercise Clause, government “cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.” ...  As a result, we have said that government actions burdening religious practice should be “set aside” if there is even “slight suspicion” that those actions “stem from animosity to religion or distrust of its practices.”...

New York’s mandate is such an action. The State began with a plan to exempt religious objectors from its vaccine mandate and only later changed course. Its regulatory impact statement offered no explanation for the about-face. At the same time, a new Governor whose assumption of office coincided with the change in policy admitted that the revised mandate “left off ” a religious exemption “intentionally.” The Governor offered an extraordinary explanation for the change too. She said that “God wants” people to be vaccinated—and that those who disagree are not listening to “organized religion” or “everybody from the Pope on down.”

Justice Thomas dissented without an opinion. National Law Journal has more on the decision.