Covid Era Mask Mandate Did Not Violate Free Exercise

In Robol v. City of Columbus, (OH App., March 20, 2025), an Ohio state appellate court affirmed the dismissal of plaintiff's claims that the city infringed his free exercise rights when during the Covid pandemic it required individuals to wear a mask in public spaces.  The court said in part:

Ordinance 1643-2020, the City’s mask ordinance, required all persons to wear a mask in public spaces.  The ordinance did not regulate, or even mention, any religious activity, religious creed, or religious affiliation.  Thus, the face mask policies Mr. Robol challenges are both neutral and generally applicable....

Despite the general applicability and neutrality of the mask ordinance, Mr. Robol nonetheless asserts the City violated his rights under the Free Exercise Clause because the ordinance violated his Christian beliefs, forced him to worship a false god, and had the effect of mocking the tenets of his faith.  Though we do not question the sincerity of Mr. Robol’s interpretation of his religion, we are mindful that a government action is not unconstitutional merely because it incidentally burdens religious practices.

Mr. Robol also brought a religious exercise claim under 42 U.S.C. 2000bb, the Religious Freedom Restoration Act....

Not every imposition on religious exercise is a substantial burden....

Without doubting the sincerity of Mr. Robol’s belief that wearing a face mask violates his religious beliefs, we note that Mr. Robol does not allege, much less demonstrate through Civ.R. 56 evidence, that the face mask policies imposed any more than a mere inconvenience to his religious beliefs.....

Mr. Robol argues the City’s face mask requirement violated his freedom of speech and expression because the choice not to wear a face mask is a form of expressing his opposition to the City’s response to the COVID-19 pandemic.  The City’s mask ordinance is content-neutral, and nothing in the terms of the ordinance suggests the purpose is to regulate speech.  And we agree with appellees the face mask policy promotes an important governmental interest in controlling the spread of COVID-19 that is unrelated to the suppression of speech.....

Wyoming Enacts State RFRA

Last week, Wyoming Governor Mark Gordon signed HB 0207, the Wyoming Religious Freedom Restoration Act (full text). The Act requires strict scrutiny of state action that substantially burden's a person's right to the exercise of religion. Wyoming is the 29th state to enact a similar statute. Catholic World Report covers these developments.

6th Circuit: Public Official Engaging in State Action Cannot Assert 1st Amendment Defense

In Emold v. Davis, (6th Cir., March 6, 2025), the U.S. 6th Circuit Court of Appeals upheld a $100,000 damage award to a same-sex couple who were refused a marriage license by Rowan County, Kentucky Clerk Kim Davis who had religious objections to same-sex marriage. The court said in part:

Government officials “have private lives and their own constitutional rights.” ...  But when a public official wields the “authority of the state,” she “engage[s] in state action,” which, by definition, cannot be protected by the First Amendment....

Davis alternatively argues that her Free Exercise rights were violated by a different state action:  Kentucky’s delay in granting her a religious accommodation.  But Plaintiffs had nothing to do with the timing of the accommodation, and Davis’s argument is irrelevant to Plaintiffs’ claim.  Either way, Davis has been found liable for state action—not private conduct—so she cannot raise a First Amendment defense...

 As Davis sees it, a public official can wield the authority of the state to violate the constitutional rights of citizens if the official believes she is “follow[ing] her conscience.” ...  That cannot be correct.  “The very purpose of a Bill of Rights” is to place certain freedoms “beyond the reach of . . . [government] officials.”  ...  Thus, when an official’s discharge of her duties according to her conscience violates the constitutional rights of citizens, the Constitution must win out.  The Bill of Rights would serve little purpose if it could be freely ignored whenever an official’s conscience so dictates....

Davis also argues that Kentucky’s RFRA shields her from liability.  But that statute does not apply here....

Judge Readler filed an opinion concurring in part and concurring in the judgment.  Louisville Courier Journal reports on the decision.

Utah RFRA Protects Psilocybin-Using Religious Sect

In Jensen v. Utah County, (D UT, Feb. 20, 2025), a Utah federal district court issued a preliminary injunction under Utah's Religious Freedom Restoration Act barring law enforcement personnel from interfering with the sincere religious use of psilocybin by members of a new religious group known as Singularism. The court also ordered return of items that had been seized from the group. The court said in part:

Plaintiffs seek a preliminary injunction barring enforcement of the Utah Controlled Substances Act as applied to their psilocybin ceremonies....

Based on the evidence in this case, Plaintiffs have established that the government has substantially burdened their sincere religious exercise. Simply put, Plaintiffs offer a sacramental psilocybin tea to their voyagers, who then embark on a spiritual journey by which they write their own scripture. A law that categorically prohibits the possession and use of the psilocybin sacrament—thereby preventing Singularism’s adherents from pursuing their spiritual voyages and hindering them from producing their sacred scripture—substantially burdens the free exercise of Singularism and its adherents....

Defendants observe that Singularism “does not claim special access to divine truths,” instead encouraging its practitioners to more deeply “discover and define their own beliefs,” and explicitly states that “no organization, including [it], has all the answers to life’s most difficult questions.” In Defendants’ view, these features weaken Singularism’s claim to be a religion because they show that Singularism’s beliefs are not comprehensive....  As the court sees it, however, these features less so detract from Singularism’s religious nature than they illustrate Singularism’s commitment to existential humility...

From all the evidence in the record, the court is hard-pressed to find, as Defendants urge, that Singularism is essentially a drug-dealing business cloaked in a minister’s robe. To the contrary, the court is convinced that Singularism is a legitimate religion and that Plaintiffs are sincere practitioners of it. This is not a case where a group of people claim a religious right to do little more than use and distribute large quantities of drugs.... By establishing the sincerity of their religious beliefs, Plaintiffs have fulfilled their responsibility of establishing a prima facie case under the Utah RFRA, shifting the burden to the government to demonstrate that the Utah Controlled Substances Act accomplishes a compelling state interest using the least restrictive means....

Whatever legal regime a society chooses, however, it must apply its protections equally to unpopular or unfamiliar religious groups as to popular or familiar ones if that commitment to religious liberty is to mean anything. As sang Jonas Gwangwa, a South African jazz musician who was exiled by the apartheid government, “Freedom for some is freedom for none.” Indeed, the very founding of the State of Utah reflects the lived experience of that truth by members of the Church of Jesus Christ of Latter-day Saints. Perhaps it is ironic then that not long after enacting its RFRA to provide special protections for religious exercise, the State of Utah should so vigorously deploy its resources, particularly the coercive power of its criminal-justice system, to harass and shut down a new religion it finds offensive practically without any evidence that that religion’s practices have imposed any harms on its own practitioners or anyone else. 

7th Circuit: Visa Regulations for Temporary Religious Workers Do Not Violate RFRA or 1st Amendment

In Society of the Divine Word v. U.S. Citizenship and Immigration Services, (7th Cir., Feb. 24, 2025), the U.S. 7th Circuit Court of Appeals held that USCIS regulations that makes the process for obtaining a immigrant worker status and subsequent permanent residence more difficult for temporary religious workers than other categories of temporary workers does not violate the Religious Freedom Restoration Act or the 1st Amendment.  The court said in part:

Plaintiffs do not identify a belief or set of beliefs they have to violate because of the regulation. Instead, they offer a broader, structural argument—that the regulation places a substantial burden on their religious exercise because it allows for “undue Government interference” with their ability to “select and employ their own ministers.” Taking this claim on its own terms, it does not rise to the level of a substantial burden for purposes of stating a RFRA violation. There is no assertion that the regulation prevents Plaintiffs from practicing their religion. It does not require them to select or refrain from selecting any particular minister. And it does not otherwise pressure or coerce Plaintiffs into violating any tenet of their religion, as far as we can tell from the complaint and declarations. We agree with the district court that, at most, the regulation “requires employers to plan the timing of employment decisions based on immigration status, and potentially limits the pool of qualified applicants that plaintiffs can choose from if they fail to plan accordingly.” ... That is not a substantial burden on religious beliefs or practice....

Court Preliminarily Enjoins Enforcement Against Plaintiffs of New Guidelines for Immigration Raids at Churches

In Philadelphia Yearly Meeting of the Religious Society of Friends v. U.S. Department of Homeland Security, (D MD, Feb. 24, 2025), a Maryland federal district court issued a preliminary injunction barring immigration authorities from enforcing against the Society of Friends, Baptist, and Sikh plaintiffs the January 2025 policy change on immigration enforcement at sensitive locations such as places of worship. Instead, they must comply with the previous 2021 Guidelines. The court found that plaintiffs were likely to succeed on their 1st Amendment Freedom of Association claim as well as their claim under the Religious Freedom Restoration Act. It concluded that enforcement of the new policy would likely significantly burden both plaintiffs' right to expressive association and their religious exercise. The court said in part:

... Plaintiffs have provided facts showing that, in light of their religious beliefs and practices relating to immigrants, they can reasonably expect to face immigration enforcement actions at their places of worship pursuant to the 2025 Policy, that such actions will likely result in declines in attendance at their worship and ministry services, and that such declines are, in fact, already occurring.... They have further demonstrated that, as a result ..., certain core religious beliefs and practices will be significantly burdened, including the beliefs that each of the Plaintiffs' religions require regular, communal worship; that at least CBF requires, as part of its religious exercise, that its congregations engage in services to support immigrants and refugees; and that, for the Quaker Plaintiffs in particular, the presence of any firearms in worship services, such as those of armed law enforcement officers, violates their faith.

CBS News reports on the decision.

Title VII Applies to Liberty University's Firing of Transgender Employee

In Zinski v. Liberty University, Inc., (WD VA, Feb. 21, 2025), a Virginia federal district court refused to dismiss a Title VII sex discrimination lawsuit against Liberty University brought by a former employee whose employment as an IT Apprentice was terminated because she underwent a male to female sex transition. In an extensively reasoned 70-page opinion, the court rejected several defenses asserted by the University. First the University contended that §§702 and 703 of the 1964 Civil Rights Act allow a religious employer to discriminate on the basis of transgender status when that is consistent with the employer’s religious belief. Those section allow a religious employer to discriminate "with respect to the employment of individuals of a particular religion." The court said in part:

Having determined that no source of law—from statutory text to legislative history to precedent—answers the question before us, the Court is left to weigh the imperfect arguments above, alongside the potential legal and social consequences of our decision. Drawing upon all of these considerations, we conclude that Sections 702 and 703 must be narrowly construed so as to permit discrimination only on the basis of an employee’s espoused religious belief or practice, such that religious employers have no license to discriminate on the basis of any other protected class. Where a religious employer discriminates on the basis of any other protected class in a but-for fashion, a statutory violation occurs, even if the decision was religiously motivated....

To decide that sex discrimination is acceptable so long as it is religiously motivated would allow employers to achieve all manner of discrimination under the banner of religion. So long as the religious institution can show that its view—despite directly implicating sex, race, or national origin—is a sincerely held religious belief, the religious institution would have free license to discriminate at will and evade the scrutiny of civil law. Not only would this subject potentially thousands of people to discrimination..., but it would supply religious institutions with a power not afforded to secular institutions, thereby generating favorites under the law and raising Establishment Clause questions....

The court also rejected the University's RFRA defense, concluding first that RFRA applies only to suits in which the government is a party. It added:

And even if Liberty were entitled to raise RFRA as a defense, we find that Title VII likely passes strict scrutiny....

On the record before us, enforcing this statute in Zinksi’s case merely requires Liberty to maintain an employee who has not followed the university’s Doctrinal Statement to the letter, i.e., an employee who has sinned. It does not require Liberty to change its belief, to endorse Zinksi’s behavior, or to allow Zinksi to spread a new message within the organization.... The minimal inroad on religious liberty here is easily justified by the exceedingly compelling governmental interest in eradicating sex discrimination in employment. Accordingly, we find that Liberty’s brief argument as to burden is insufficient to show substantial burden at this stage of litigation. Thus, strict scrutiny does not apply, and our analysis can come to an end.....

The court rejected the ministerial exception defense, saying in part that "nothing in the record suggests that Zinski was a minister." The court also rejected the University's freedom of expressive association claim, saying in part:

... [W]e must defer Liberty’s claim that it opposes transgender identification and seeks to avoid any promotion of transgender status as an appropriate form of behavior. However,... we cannot conclude that Zinksi’s presence at Liberty would “force the organization to send a message” that Liberty accepts transgender conduct as a “legitimate form of behavior.”... Zinksi is an IT employee who has limited to no interactions with students, has no role in influencing or promoting Liberty’s value system, and has no role in Liberty’s religious curriculum or programming. The only inference that we can draw for Liberty is that Liberty may be seen as a hypocrite for employing a transgender person when it opposes transgender identity; but the same could be said for Liberty’s employment of any other type of person who “sins” despite Liberty’s opposition to sin in general....

Finally, the court rejected the University's ecclesiastical abstention defense, saying in part:

Zinski’s complaint asks the Court to determine whether Title VII prohibits a religious institution from firing a transgender person, not whether a religious institution, like Liberty, has properly interpreted its religious doctrine when determining that a transgender person violates religious law and must be fired.

27 Religious Denominational Groups Sue DHS Over Rescission of Sensitive Locations Policy

Yesterday, 27 Christian and Jewish denominational bodies and organizations filed suit in a D.C. federal district court challenging the rescission by the Department of Homeland Security of its "Sensitive Locations Policy." The policy severely limited the situations under which immigration enforcement actions could take place at churches, synagogues, mosques and other institutions of worship, as well as at various other locations. The complaint (full text) in Friends General Conference v. U.S. Department of Homeland Security, (D DC, filed 2/11/2025), says in part:

1. [Plaintiffs] bring this suit unified on a fundamental belief: Every human being, regardless of birthplace, is a child of God worthy of dignity, care, and love. Welcoming the stranger, or immigrant, is thus a central precept of their faith practices....

7. ... Consistent with their call to welcome and serve all people, many have undocumented congregants and many offer social service ministries— such as food and clothing pantries, English as a Second Language (“ESL”) classes, legal assistance, and job training services—at their churches and synagogues that serve undocumented people.  An immigration enforcement action during worship services, ministry work, or other congregational activities would be devastating to their religious practice. It would shatter the consecrated space of sanctuary, thwart communal worship, and undermine the social service outreach that is central to religious expression and spiritual practice for Plaintiffs’ congregations and members.

8. The rescission of the sensitive locations policy is already substantially burdening the religious exercise of Plaintiffs’ congregations and members.  Congregations are experiencing decreases in worship attendance and social services participation due to fear of immigration enforcement action.  For the vulnerable congregants who continue to attend worship services, congregations must choose between either exposing them to arrest or undertaking security measures that are in direct tension with their religious duties of welcome and hospitality. Likewise, the choice that congregations currently face between discontinuing social service ministries or putting undocumented participants at risk of arrest is no choice at all: Either way, congregations are forced to violate their religious duty to serve and protect their immigrant neighbors.

The suit alleges that the rescission of the policy violates plaintiffs' free exercise rights under RFRA as well as their 1st Amendment rights to expressive association.

The Institute for Constitutional Advocacy and Protection issued a press release announcing the lawsuit.

DC Circuit Revives Contempt Proceedings in RFRA Suit Against Fire Department

In Calvert v. Potter, (DC Cir., Jan. 28, 2025), the U.S. Court of Appeals for the D.C. Circuit remanded to the district court a suit by a group of D.C. firefighters who claim that the D.C. Fire Department violated an injunction issued in 2007 vindicating their rights under the Religious Freedom Restoration Act. The injunction required the Department to allow firefighters who wore beards for religious reasons to work in field operations. However, 13 years later the situation became more complex, as the D.C. Circuit explained:

As COVID-19 spread in March 2020, the Department implemented a new facial hair policy and mandated the use of masks during patient contact. The Department transferred the four bearded firefighters it still employed to administrative roles “due to concerns about their ability to properly wear N95 respirators with facial hair.”...

The district court denied the motion for civil contempt.... The court declined to hold the Department in contempt because it “acted in a reasonably cautious way, under unprecedented and extraordinary circumstances, to keep plaintiffs and the public it served as safe as it could.”...

The Court of Appeals rejected the district court's conclusion: 

Good-faith compliance may be relevant to mitigation at the remedies stage, but the court lacks discretion to excuse civil contempt based on the contemnor’s good faith. ... 

The firefighters had a private right to enforcement of the original injunction, which protected their religious freedom and permanently forbade the Department from enforcing the 2005 facial hair policy against them. The district court had no general discretion to excuse civil contempt.... 

Instead, the court was required to determine whether the Department violated the firefighters’ rights under the 2007 injunction.... Even if the Department’s behavior was reasonable in light of the pandemic, good faith and lack of willfulness is not a defense to civil contempt....

First Liberty Institute issued a press release announcing the decision.

Quaker Organizations Sue Over New Immigration Enforcement Policy

Yesterday three organizations of Quaker congregations along with two individual congregations filed suit in a Maryland federal district court challenging the Department of Homeland Security's recent change in policy that allows immigration agents to conduct enforcement operations in houses of worship and at religious life-cycle ceremonies.  The complaint (full text) in Philadelphia Yearly Meeting of the Religious Society of Friends v. U.S. Department of Homeland Security, (D MD, filed 1/27/2025), alleges that the policy change violates the Religious Freedom Restoration Act, the 1st Amendment's protection of expressive association and the Administrative Procedure Act.  The complaint alleges in part:

89. A diversity of worshippers is an essential component of the Quaker value of “experience[ing] God in a broader, more encompassing way,” as “one’s life experience affects how one hears the spirit and what conclusions one might draw.”... Deterring immigrants from worshipping in-person with a Quaker meeting would therefore directly interfere with Plaintiffs’ religious exercise by lessening their “ability to hear God and what God is trying to tell [them].” ...

90. Moreover, Plaintiffs’ Quaker beliefs make it essential that they “encourage others for whom [that] path is meaningful to join.”... But DHS’s new policy, by opening meeting houses to immigration-enforcement activities, inhibits Plaintiffs from doing just that.... Knowingly putting a person in harm’s way or subjecting them to the possibility of a violent encounter with an armed law-enforcement officer would violate Quaker beliefs in peace and nonviolence....

91. Quakers have held a religious commitment against violence for hundreds of years.... For many Quakers, “[t]he presence of a weapon in a Quaker meeting would be absolutely unacceptable.”... The presence of armed immigration officers at meeting houses—which the new policy allows—would thus significantly hamper Plaintiffs’ ability to exercise their faith.... Importantly, even the threat of armed government agents at meeting houses—which has existed since the moment DHS announced its new policy—does the same.

Axios reports on the lawsuit.

No Qualified Immunity Defense to RFRA Claim Is Available

In Swanson v. Flores, (SD CA, Jan. 6, 2025), a California federal district court refused to dismiss a suit for damages brought under the Religious Freedom Restoration Act by plaintiff who was a civilian employee of the Marine Corps against her former supervisor. She contends that defendant first ordered her to stop her faith-based discussions with coworkers in her office. Subsequently he ordered her to remove a Bible and religious calendar that she kept on her desk. Plaintiff contends that she maintains her religious beliefs by sharing them with others who have similar religious views and that these orders substantially burdened her ability to practice her sincerely held religious beliefs. The court held that plaintiff sufficiently stated a claim for relief.

The court also rejected defendant's claim of qualified immunity, saying in part:

With no binding authority, this Court finds that the only RFRA defense Congress intended is that stated in the statute, i.e., the defense that the government was acting to further a compelling interest and was doing so by the least restrictive means.

Catholic Doctors Sue HHS Over Interpretation of EMTALA's Impact on State Abortion Bans

Suit was filed last week in a Tennessee federal district court by an organization of Catholic physicians challenging a July 2022 Memorandum and accompanying Letter from the Department of Health and Human Services that stated that the Emergency Medical Treatment and Active Labor Act pre-empts state abortion bans when an abortion is needed for emergency care. The complaint (full text) in Catholic Medical Association v. U.S. Department of Health and Human Services, (MD TN, filed 1/10/2025) alleges in part:

2. The Memorandum and Letter ... exceed Defendants’ statutory authority, were promulgated without procedure required by law, and are arbitrary and capricious, all in violation of the Administrative Procedure Act (APA). The Mandate also violates the rights of doctors under the Religious Freedom Restoration Act (RFRA) and the First Amendment....

169. CMA’s members exercise their religious beliefs in practicing medicine by caring for patients generally, and in caring for patients in situations subject to EMTALA. CMA’s members exercise their religious beliefs in treating pregnant women and their unborn children with respect and dignity, and in opposing involvement in the direct and intentional killing of unborn children in abortion. 

170. The Mandate substantially burdens the exercise of CMA’s members’ sincerely held religious beliefs. 

171. The Mandate imposes significant pressure on CMA’s members to practice medicine in way that would violate their beliefs because of the threat of investigations, fines, and other punishments and impairments.

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

Indiana Supreme Court Lets Preliminary Injunction Against Abortion Ban When It Violates Religious Beliefs Stand

Last week, the Indiana Supreme Court, by a vote of 3-2, refused to review at this stage in the litigation a preliminary injunction entered by lower courts in a suit claiming that the state's Religious Freedom Restoration Act is violated when plaintiffs are prohibited by Indiana's abortion law from obtaining an abortion that their religious beliefs direct them to obtain. (See prior posting.) In Individual Members of the Medical Licensing Board of Indiana v. Anonymous Plaintiff 1, (IN Sup. Ct., Dec. 10, 2024), the Order denying the petition to transfer the case to the Supreme Court was not accompanied by a majority opinion. However, Justice Molter joined by Justice Rush filed a concurring opinion saying in part:

This case involves an unusual preliminary injunction—the trial court temporarily enjoined state officials from enforcing the State’s abortion law, but only for a particular group of women who are not pregnant and therefore are not seeking an abortion. The Court of Appeals concluded that the trial court didn’t exceed its discretion by entering a preliminary injunction while the case continues to be litigated. But the panel also directed the trial court to narrow the preliminary injunction on remand. So thus far, this case is not stopping the defendants from doing anything. And we don’t yet know if it ever will, including because the defendants may ultimately prevail in the lawsuit....

I conclude the more prudent course is for the Court to review the case after a final judgment rather than following a preliminary injunction, which remains a work in progress and subject to more deferential appellate review. In essence, it is better that we review the trial court’s final answer rather than its first guess....

Justice Slaughter, joined by Justice Massa, filed a dissenting opinion, saying in part:

Our denial of transfer means the trial court’s “final answer” will lack the benefit of our current thinking. By saying nothing, we may leave the misimpression that the injunction’s only vulnerability is its scope. As my colleagues acknowledge, this case “presents transfer-worthy issues with previously undecided questions of statewide importance”.

Indiana ACLU issued a press release announcing the decision.

2nd Circuit: FBI Agents Had Qualified Immunity From RFRA Damages When Muslim Plaintiffs' Religious Objections Were Undisclosed

In Tanvir v. Tanzin, (2d Cir., Oct. 29, 2024), the U.S. 2nd Circuit Court of Appeals dismissed on qualified immunity grounds a case in which the U.S. Supreme Court in 2020 held (see prior posting) that the Religious Freedom Restoration Act permits suits for damages against federal officials. The 2nd Circuit said in part:

... [E]ach of the three Appellants in this case encountered various FBI agents who asked him to serve as an informant in Muslim communities, and each was illegitimately placed or retained on the No Fly List when he declined. Each Appellant possessed a belief, allegedly shared by some other Muslims, that precluded him from serving as an informant in a Muslim community. But no Appellant ever disclosed that view to any agent. Instead, each stated that he: (1) refused to work as an informant because being an informant would endanger himself or his family, or (2) would agree to work as an informant under the right circumstances....

Appellees had no reason to know that their actions encroached on the Appellants’ religious beliefs. As noted above, “[e]ven when we find a right clearly established,” officials are still immune from damages liability if “reasonable persons in their position would not have understood that their conduct was within the scope of the established prohibition.”...

We recognize the Appellants’ view that Muslims in America have been unfairly targeted. But we disagree with their conclusion that a Christian or Jewish plaintiff in like circumstances would have greater success in a RFRA damages suit. No doubt, many would find any effort to recruit informants to infiltrate religious congregations, including Muslim, as well as Christian or Jewish congregations, offensive. We have no reason to assume, however, that a reasonable government official would know that a Christian or Jew could not work with government agents to expose terrorists in her religious community without violating her religious norms. It is far from obvious – indeed, it cannot be the case – that an adherent of either of those (or any) religions could hold an undisclosed religious belief, of which an official had no other reason to know, and then successfully sue the official for monetary damages for pressuring them to act in tension with that undisclosed belief.

Nothing in this ruling should be construed as approving the conduct alleged in the complaint. At its core, the complaint alleges that government agents pressured individuals to serve as informants – at risk to their own and their families’ safety – and to report on the activities of their neighbors and community members by falsely and in bad faith accusing them of terrorism to deny them significant liberties under a program designed to protect lives from genuine terrorists. That is improper behavior, regardless of whether the agents knew of the Appellants’ particular religious beliefs. But in this case, the Appellants’ only remaining legal claim is that the Appellee agents are personally liable in damages for violating their free exercise of religion under RFRA. On the facts alleged, for the reasons discussed above, that claim fails.

Texas Judicial Conduct Commission Withdraws Reprimand of Judge Who Refused to Perform Same-Sex Weddings

As previously reported, in 2019 the Texas State Commission on Judicial Conduct issued a Public Warning to Justice of the Peace Dianne Hensley because she refused on religious grounds to perform same-sex weddings, while continuing to perform other weddings. The Commission stated that her conduct cast doubt on her capacity to act impartially to persons appearing before her as a judge.  Hensley sued contending that the Commission's action violated the Texas Religious Freedom Restoration Act as well as her free speech rights. In July 2024, the Texas Supreme Court held that the suit could move forward. (See prior posting.) Now, in Public Statement PS-2024-1, (Sept. 9, 2024), the Commission on Judicial Conduct has withdrawn the prior Public Warning "in light of the decision handed down by the Texas Supreme Court and the underlying facts and evidence...." However, according to a report yesterday by KWTX News, Hensley will continue her lawsuit. Quoting her attorneys, First Liberty Institute:

Unfortunately, Judge Hensley has incurred damages and attorney fees fighting for religious liberty, the Constitution, other judges who feared coming forward and her own reputation. We intend to complete the mission. Other judges who feared retaliation from the Commission and hid in the shadows may now be able to step forward and file their own cases seeking damages up to $10,000, plus costs and fees.

State RFRA Bars Taxpayer Suit Challenging Church's Property Tax Exemption

 In In re Calvary Chapel Iowa, (IA Adm. Hearings Div., Sept. 17, 2024), an Iowa Administrative Law Judge held that the state's Religious Freedom Restoration Act protects churches from taxpayer suits challenging their property tax exemptions.  The ALJ said in part:

The issue in this case is whether as a matter of statutory (not constitutional) law individuals can use the taxpayer-standing provision of Iowa Code section 427.1 to force a religious organization into litigation and spend the time and resources to prove its entitled to its property-tax exemption already claimed by it.  Prior to the enactment of the Iowa Religious Freedom Restoration Act (“RFRA”) the answer was an unequivocal yes (with individuals having done precisely this for at least a generation); however, with the passage of RFRA, the answer now appears to be no at least under the circumstances of this case. 

As discussed below, this is because this type of litigation imposes a substantial burden on the exercise of religion and because the State’s compelling interest in the appropriate administration of tax law can be met with the lesser restrictive means of having the State (with its constitutional and statutory constraints) enforce tax law.  To hold otherwise would be to allow the unaccountable political opponents of a church the option to use the power of the State to target and/or retaliate against the religious organization for the organization’s activities, thereby creating a chilling effect not only on that specific religious group but also all other similarly oriented religious organizations.  This is precisely the type of religious interference that RFRA was designed to prevent, and until the judiciary provides different guidance on the scope of RFRA, this case must be dismissed.

Christian Post reports on the decision.

Tribe Seeks Supreme Court Review of Transfer of Sacred Site to Mining Company

A petition for certiorari (full text) was filed this week with the U.S. Supreme Court in Apache Stronghold v. United States, (Sup. Ct., filed 9/11/2024). In the case, the U.S. 9th Circuit Court of Appeals sitting en banc, by a vote of 6-5, refused to enjoin the government from transferring to a copper mining company federally-owned forest land that is of significant spiritual value to the Western Apache Indians. (See prior posting.) The petition for review raises issues under both RFRA and the 1st Amendment's Free Exercise clause. Becket Fund issued a press release announcing the filing of the petition seeking Supreme Court review.

Connecticut Supreme Court: Constitutional (But Not Statutory) Challenges to Removal of School Vaccination Religious Exemptions Barred by Sovereign Immunity

In Spillane v. Lamont, (CT Sup. Ct., July 30, 2024), the Connecticut Supreme Court in a complicated opinion held that the doctrine of sovereign immunity bars constitutional claims asserted in a class action suit by school parents against the governor, the commissioners of education and of public health, and two boards of education. Plaintiffs were challenging the legislature's removal of previously available religious exemptions from school vaccination requirements. Under Connecticut law, sovereign immunity for constitutional claims is waived only when actions for declaratory relief or an injunction allege a substantial claim that the state or a state official has violated plaintiffs' constitutional rights. Here plaintiffs did not have a substantial claim that their free exercise or equal protection rights under the federal constitution were violated, nor that their right to education under the Connecticut constitution was violated.

However, the Supreme Court agreed with the trial court that plaintiffs' statutory claim under the Connecticut Religious Freedom Restoration Act was not barred by sovereign immunity. Connecticut's RFRA waived sovereign immunity for violations and applying the Act here does not violate the principles that one legislature may not bind the authority of a later one or that enactments are presumed to repeal inconsistent portions of prior legislation.

(See prior related posting.) WTNH News reports on the decision.

Religious College Loses RFRA Challenge to SBA's Loan Forgiveness Rules

 In Gordon College v. U.S. Small Business Administration, (D DC, July 18, 2024), the D.C. federal district court dismissed claims by a religious nonprofit college that its rights under RFRA as well as the 1st and 14th Amendments were infringed when it was denied forgiveness of a $7 million loan that it received under the Covid era Paycheck Protection Program. Loan forgiveness was available to qualifying small businesses. Gordon College's loan forgiveness application was denied because it had over 500 employees and thus did not meet the SBA's small-business size standard. Rejecting plaintiff's RFRA claim, the court said in part:

... [P]laintiff fails to identify a “sincere religious belief” that has been infringed by application of the PPP’s 500-employee cap to plaintiff.... Absent here ... is any articulated connection between plaintiff’s asserted need to have more than 500 employees and its exercise of religion.  Plaintiff, for example, does not allege that “any religious group” has “as one of its tenets” the requirement that an associated religious institution have more than 500 employees ... or that it has treated having more than 500 employees to “ris[e] to [any] level of significance in [its] religion.”...

As to plaintiff's Constitutional challenges, the court said in part: 

... [T]he application of the PPP’s 500-employee cap to plaintiff is neutral and generally applicable, thereby triggering rational basis review, rather than strict scrutiny.  Plaintiff has failed to bring a rational-basis challenge by not plausibly alleging that no reasonable set of facts could provide a rational basis for the PPP’s 500-employee cap.  Accordingly, plaintiff’s Free Exercise and Equal Protection claims are dismissed....

Here, plaintiff alleges that “[d]efendants have interfered with the autonomy of [plaintiff] to define its own doctrine, membership, employment, staffing, affiliation, and other internal requirements” by “insisting on certain requirements [sic] for determining staffing and employment.... [P]laintiff has failed ... to explain why the PPP’s 500-employee cap... interfered with any “matters of faith and doctrine.”  Plaintiff’s religious autonomy claim is thus dismissed.

School's Exclusion of Fellowship of Christian Athletes Violates RFRA and 1st Amendment

 In Fellowship of Christian Athletes v. District of Columbia, (D DC, July 11, 2024), a D.C. federal district court issued a preliminary injunction requiring D.C.'s Jackson Reed High School to reinstate Fellowship of Christian Athletes as a recognized student organization for the school year 2024-2025. FCA's recognition had been suspended because it required its student leaders to affirm its Statement of Faith which bars sexual relations outside of heterosexual marriage and bars any sexually immoral act including homosexuality. This was seen as a violation of the school's anti-discrimination policy. The court concluded that applying the anti-discrimination policy in this manner violates the Religious Freedom Restoration Act because it substantially burdens FCA's exercise of religion. The court said in part:

[T]he District’s interest is unjustifiably speculative.  It seeks to “protect[] the safety and well-being of its students by promoting an equitable environment free of discrimination.”... [T]he District readily admits that a student in noncompliance with FCA’s Statement of Faith—whether an atheist, Jewish, gay, or lesbian student—is unlikely to seek a leadership position....  The District can thus offer “only speculation” that FCA’s reinstatement would pose an actual threat of discrimination against any Jackson-Reed student based on a protected characteristic.... Such a speculative goal does not pass muster under strict scrutiny.  

Moreover, the District’s exclusion of FCA as a means of eliminating discrimination is “fatally underinclusive.”... [T]he District permits student groups besides FCA to continue operating at Jackson-Reed even though they restrict membership on the basis of protected characteristics and/or ideological alignment....  The District’s “interest” in nondiscrimination “cannot justify” a nondiscrimination policy “that requires only religious” groups to “bear [its] weight.” ...

The court also concluded that the school had violated the First Amendment's Free Exercise Clause, concluding that the school's policy was not generally applicable and thus was subject to strict scrutiny. It said in part:

[T]he District permits secular groups to limit their membership to ideologically aligned students while denying the same right to FCA with respect to its leadership. The Court can find “no meaningful constitutionally acceptable distinction between the types of exclusions at play here.”