RFRA and Title VII Claims for Refusing Religious Exemption from Covid Vaccine Mandate Can Proceed

In Snyder v. Chicago Transit Authority, (ND IL,  Nov. 6, 2023), an Illinois federal district court allowed plaintiff, who was denied a religious exemption from his former employer's Covid vaccine mandate, to move ahead with his claims under Title VII and under the Illinois Religious Freedom Restoration Act. The court however dismissed seven other claims brought under a number of other statutory and regulatory provisions.

Reservist Challenges Military's Admonition of Him for His Remarks at Retirement Ceremony

Suit was filed this week in a Texas federal district court by Jace Yarbrough, a Major in the Air Force Reserve, challenging a Letter of Admonition issued to him by the military for the content of remarks he made while speaking, in uniform, at a retirement ceremony for Senior Master Sergeant Duane Fish, an Air Force flight superintendent with whom he worked closely and with whom he shared religious beliefs and values.  The complaint (full text) in Yarbrough v. United States Space Force, (ED TX, filed 10/3/2023), asserts that Yarbrough's Christian faith is central to his worldview, conduct and speech. The complaint describes the remarks at issue as encouraging people to practice the courage and virtue exemplified by SMSgt Fist.  It goes on:

92. In keeping with that theme, [Yarbrough] expressed his personal concerns about the negative impact of politicization within the military.... He worried that “radical” factions in “our wider culture” have “brought the culture war inside the DoD,” and that politicization of the military would be “a death knell for courage and competence.” 

93. To support his views, he drew on the teachings and thought of Eastern Orthodox Christian and writer Aleksandr Solzhenitsyn ... regarding the corrosive cultural consequences of dishonesty and self-deception.... 

94. Mr. Yarbrough gave two examples of objective realities he believes are known intuitively to all persons as persons: 1) “men can’t birth babies” and 2) “boys should not be allowed in girls’ locker rooms.” 

95. He expressed his faith-based belief that forcing people to deny such self-evident beliefs “requires constant . . . self-deception,” which can “habituate [us] to dishonesty” and cause us to lose our “grip on objective reality,” making us “less capable and less effective in our world.... 

96. As part of his warning against politicization, he referenced “recent DoD-wide extremism training” that he had attended, in which he “was relieved to see that [his] teammates recognized that training for what it was, a thinly veiled flex of political power.”...

The suit alleges that the Letter of Admonition, among other things, violated the Religious Freedom Restoration Act, as well the Free Exercise, Free Speech and Establishment Clauses.

First Liberty Institute issued a press release, including a link to the full text of plaintiff's remarks at the retirement ceremony.

Employees Failed to Show Sincere Religious Beliefs for Vaccine Exemptions

In Gardner-Alfred v. Federal Reserve Bank of New York, (SD NY, Sept. 25, 2023), a New York federal district court dismissed RFRA, Title VII and First Amendment claims by two Federal Reserve Bank employees who were denied religious exemptions from the FRB's Covid vaccine mandate.  The court, in a 52-page opinion, concluded that neither Lori Gardner-Alfred nor Jeanette Diaz had demonstrated that their objections to the vaccine were based on sincere religious beliefs. The court said in part:

Gardner-Alfred claims to be a member of the Temple of Healing Spirit, which is a belief system that she describes as “oppos[ing] the invasive techniques of traditional Western medicine.” ...

Defendant argues that no reasonable jury could find that Gardner-Alfred’s objections to the vaccine were grounded in sincerely held religious beliefs.,,,  Defendant argues that there is no evidence Gardner-Alfred enjoyed any relationship with the Temple of Healing Spirit beyond paying for a vaccination exemption package and that her medical history, both before and after she made her request for a religious accommodation, is inconsistent with her alleged religious beliefs....

 No reasonable jury thus would be able to conclude that her claimed religious beliefs were anything other than contrived....

... [T]here is undisputed evidence that Diaz would have a motive to “fraudulently hid[e] secular interests behind a veil of religious doctrine.”... Diaz submitted her accommodation request days after attending a secular anti-vaccination webinar featuring materials entitled “White Paper—Experimental Covid Vaccines,” and “Review of Ivermectin Efficacy.”...  [S]he subscribed to at least eight newsletters, which sent her several hundred emails, from sources opposing the vaccine on secular grounds.... 

There also is evidence of Diaz acting in a manner inconsistent with her claimed religious views.... Diaz concedes that she has on many occasions taken medications and received injections without first checking whether they contain or were made or manufactured with aborted fetal cell lines...

Diaz further does not dispute that the views that she now claims to hold are different from those held by the church of which she claims to be a member..... 

... She bases her objection on the letter she received from the Colorado Catholic Conference, an organization with which she had no prior affiliation and has no current affiliation.... The letter is available for download from the internet from anyone who seeks it....

Denying Inmate Permission to Marry Was RFRA Violation

In Davis v. Wigen, (3d Cir., Sept. 19, 2023), the U.S. 3rd Circuit Court of Appeals reversed a district court's dismissal of a RFRA claim brought by a former federal inmate and his fiancée.  The suit was brought against a private prison that primarily houses alien inmates claiming that the prison denied all inmate marriage requests, even when the inmate met the criteria set out in Bureau of Prison policies for approval of the request.  The court, finding that plaintiffs adequately alleged that the denials imposed a substantial burden on religious exercise, said in part:

The District Court dismissed Plaintiffs’ RFRA claim because they failed to allege that Defendants pressured Plaintiffs to either refrain from conduct that their faith prescribed or participate in conduct that their faith prohibited....  Because neither Christian tradition nor doctrine requires adherents to marry, Defendants argue that the denial of Plaintiffs’ marriage request did not cause them to violate any religious precept or belief....

Here, Plaintiffs desired to marry because marriage “had profound religious significance for them” and because they “viewed their marriage as an expression of” their Christian faith.... Although marriage may not be required of every Christian, Plaintiffs allege that their desire to marry has significant religious meaning for them. They contend that marriage is an expression of their faith. By denying Plaintiffs’ marriage request, Defendants caused them to refrain from such religious expression and thereby “violate their beliefs.”...

... While not every government-imposed hurdle to the practice of sincere faith-based conduct will be a substantial burden, the more proximate the government action is to an outright bar, the more likely it is a substantial burden. We conclude, therefore, that Plaintiffs have adequately alleged a substantial burden on their religious beliefs. 

Suit Challenges Federal Terrorist Watchlist

Suit was filed yesterday in a Massachusetts federal district court challenging the federal government's terrorist watchlist system.  In a 185-page complaint, 12 Muslim plaintiffs sued 29 federal officials claiming violations of the 4th and 5th Amendments, the Religious Freedom Restoration Act and the Administrative Procedure Act.  The complaint (full text) in Khairullah v. Garland, (D MA, filed 9/18/2023), alleges in part:

3. Plaintiffs were placed on the federal terrorist watchlist by Defendants’ interagency watchlisting system, which evaluates individuals for inclusion under a vague, rubberstamp-at-best standard that is satisfied nearly 100% of the time. Plaintiffs were not notified of their nomination to or inclusion in the watchlist. They have no idea why the government considers them worthy of permanent suspicion, have no opportunity to dispute the government’s decision or confront the supposedly derogatory information on which their placement is based....

5. The stigma and harm of watchlisting placement lasts a lifetime, even if Defendants eventually ... remove an individual from the watchlist. Several agencies retain records of past watchlist status and continue to use that historic status to deny formerly-listed individuals ...  security clearances, employment, access to government buildings, and other licenses and permissions....

9. ... Over 98% of the names on leaked portions of the watchlist from 2019 are identifiably Muslim.... Defendants consider origin from Muslim-majority countries, travel to Muslim-majority countries, attending mosques and Islamic events, zakat donations to Muslim charities, the wearing of typical Muslim dress, Muslim-sounding names, the frequency of Muslim prayer, adherence to Islamic religious practices, Islamic religious study, the transfer of money to individuals residing in Muslim-majority countries, affiliations with Muslim organizations, and associations with Muslims in the United States or abroad to be suspicious, and routinely nominate Muslims to the watchlist on the basis of those characteristics and activities....

12. Defendants create, maintain, administer, and use the watchlisting system without congressional approval and oversight, targeting Plaintiffs and thousands of other American Muslims in the shadowy corners of federal agency power.

CAIR announced its filing of the lawsuit as well as the release of its 2023 Muslim Community Travel Discrimination Survey.   VOA also reports on the lawsuit.

Court Upholds Procedure for Obtaining Immigrant Religious Worker Classification

In Society of the Divine Word v. U.S. Citizenship & Immigration Services, (ND IL, July 20, 2023), an Illinois federal district court rejected RFRA, free exercise, Establishment Clause and equal protection challenges brought by more than a dozen religious institutions to the way in which federal law treats foreign-born ministers and international religious workers who the institutions seek to employ.  Current federal law does not allow them to file their application for a "green card" until after their employer has obtained a special immigrant religious worker classification for them. This is different than the rules for employees of secular organizations who may file for a green card concurrently with their employer's filing. The court said in part:

Plaintiffs counter that § 245.2(a)(2)(i)(B) violates the RFRA because their decisions regarding “when and where religious workers may be put into religious service” are protected by the First Amendment. They argue that § 245.2(a)(2)(i)(B) places “extreme and sometimes insurmountable burdens” on their ability to staff their religious missions. These burdens include processing delays, resource expenditure to follow up on and seek expedited adjudication of petitions, and lapses in employment authorization....

The court agrees with plaintiffs that § 245.2(a)(2)(i)(B) is still capable of substantially burdening their religious exercise even if they can use other employment-based immigration categories to hire their foreign-born religious workers. That being said, the court disagrees with plaintiffs that they have demonstrated that these alleged burdens (time, planning, and cost) have a substantial impact on their ability to determine when and where to hire and fire the religious ministers of their choice. Instead, § 245.2(a)(2)(i)(B) 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. Limiting the pool of available employees based on immigration status is not the same as interfering with a religious organization’s hiring decision by pressuring them to hire or fire a particular employee, as in Hosanna Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012)...

Plaintiffs’ next argument is that § 245.2(a)(2)(i)(B) violates the Equal Protection and Due Process Clauses because it discriminates against them on the basis of religion....

... [T]his court concludes that § 245.2(a)(2)(i)(B) is not based on religion; it is based on the demonstrated risk of fraud in the special immigrant religious worker program, which is not subject to other requirements that might avoid fraud in other employment-based categories. 

Court Rejects Muslim Americans' Challenge to Their Treatment at U.S. Borders

In Kariye v. Mayorkas, (CD CA, July 19, 2023), a California federal district court dismissed claims by three Muslim plaintiffs that their rights have been violated by ongoing religious questioning of Muslim Americans at ports of entry. The court rejected plaintiffs' Establishment Clause challenge, saying in part:

In light of the case law holding that the government has plenary authority at the border and that maintaining border security is a compelling government interest, the court finds that "reference to historical practices and understandings" weighs against finding an Establishment Clause violation based on religious questioning at the border.... Plaintiffs' allegations to the contrary—that American history and tradition protect religious belief—do not sufficiently address historical practices and understandings at the border.

Rejecting plaintiffs' Free Exercise claim, the court said in part:

[T]he ongoing harms alleged by Plaintiffs here—their modifications to religious practices during international travel— ... can ... be categorized as subjective chilling effects insufficient to constitute a substantial burden under the Free Exercise Clause....

... Plaintiffs have not plausibly alleged they were deprived of a government benefit or coerced to act contrary to their religious beliefs...

... Plaintiffs' allegations support the conclusion that the questioning alleged in this case would be a narrowly tailored means of achieving the compelling government interest of maintaining border security.

The court also rejected plaintiffs' freedom of association, retaliation, equal protection and RFRA claims.

Court Says Dobbs Decision Does Not Undercut Freedom of Access To Clinic Entrances Act

In United States v. Gallagher, (MD TN, July 3, 2023), a Tennessee federal district court became the first court to rule on whether the Supreme Court's Dobbs decision affects the constitutionality of the Freedom of Access to Clinic Entrances ("FACE") Act.  In the case, eleven co-defendants sought dismissal of their indictments for violating FACE. They first argued that since Dobbs held abortion is not entitled to heightened protection under the 14th Amendment, Congress' reliance in enacting the law on its 14th Amendment Section 5 enforcement powers is undercut. The court responded in part:

While the question of how section 5 applies to the FACE Act may be of some abstract or academic interest, however, it is of limited practical importance, given that section 5 is only one of two powers on which Congress relied in enacting the FACE Act, the other of which—the power to regulate interstate commerce—was not at issue in Dobbs.

Later in its opinion, the court rejected defendants' argument that Dobbs effectively created a carveout of abortion services from commerce clause coverage. It also rejected defendants' argument that they could not be prosecuted under 18 USC §241 for conspiring to prevent the exercise of a federal right. The court said "§ 241 does not require that the right in question be constitutional, only that it be federal. FACE is, of course, a federal statute...."

The court also rejected defendants' argument that the government is engaged in impermissible selective enforcement because it has not brought enough prosecutions under the FACE Act against individuals who have interfered in the operation of anti-abortion “crisis pregnancy centers.”

It went on to reject defendants' free speech arguments, saying in part:

Nor is the FACE Act being applied in an unconstitutional manner to these particular defendants based on their viewpoints or participation in First Amendment-protected activities, as would be required for a so-called “vindictive prosecution” defense. “...

Because there is no actual evidence of any such improper motive, the defendants engage in a sleight of hand, whereby they have treated any statement by the Department of Justice indicating a desire to safeguard access to abortion as evidence of a desire to punish these defendants for Dobbs. The defendants, though, are not the center of the moral or political universe. A desire to safeguard access to abortion is a desire to safeguard access to abortion—not an affront directed at them. More importantly, safeguarding access to abortion is, particularly under Dobbs, an entirely appropriate thing for legislatures and executives to do, if that is the course they choose. Indeed, it is harder to imagine a more fulsome endorsement of the elected branches’ power to set abortion policy than Dobbs...

Moving to defendants' Free Exercise/ RFRA claims, the court said in part:

The boundaries of the Free Exercise Clause are a topic of much disagreement.... The defendants’ argument, however, goes to something much more fundamental. Although the defendants go to great lengths to make this issue more complicated than it is, they ultimately ask a straightforward question: Does the Free Exercise Clause grant individuals who are acting out of religious motivations freedom to commit actions that otherwise would be crimes against the person or property of others through physical invasion, intimidation, or threat? The answer is similarly straightforward: No, it does not....

The defendants argued that RFRA requires that the state have a compelling interest to substantially burden religious exercise, and that after Dobbs there cannot be a compelling interest in protecting access to abortion. The court responded in part:

... [T]he Supreme Court has never held that a “compelling interest” depends upon something being considered a fundamental right. They are different constitutional concepts, performing different jurisprudential functions.

RFRA Requires Title VII Exemption for Business Operating on Christian Gender Beliefs

In Braidwood Management, Inc. v. EEOC, (5th Cir., June 20, 2023), the U.S. 5th Circuit Court of Appeals held that RFRA requires an exemption from the sex discrimination provisions of Title VII for a company that operates three related health and wellness businesses on the basis of Christian beliefs regarding sexual orientation and gender identity.  The court said in part: 

RFRA requires that Braidwood ... be exempted from Title VII because compliance with Title VII post-Bostock would substantially burden its ability to operate per its religious beliefs about homosexual and transgender conduct. Moreover, the EEOC wholly fails to carry its burden to show that it has a compelling interest in refusing Braidwood an exemption, even post-Bostock....

Although the Supreme Court may some day determine that preventing commercial businesses from discriminating on factors specific to sexual orientation or gender identity is such a compelling government interest that it overrides religious liberty in all cases, it has never so far held that....

Under RFRA, the government cannot rely on generalized interests but, instead, must demonstrate a compelling interest in applying its challenged rule to “the particular claimant whose sincere exercise of religion is being substantially burdened.”...

[T]he EEOC fails to carry its burden. It does not show a compelling interest in denying Braidwood, individually, an exemption. The agency does not even attempt to argue the point outside of gesturing to a generalized interest in prohibiting all forms of sex discrimination in every potential case. Moreover, even if we accepted the EEOC’s formulation of its compelling interest, refusing to exempt Braidwood, and forcing it to hire and endorse the views of employees with opposing religious and moral views is not the least restrictive means of promoting that interest.

Reuters reports on the decision.

Army Appeals Court: Poisoning Through Vodou Not Protected by Free Exercise Clause or RFRA

In United States v. Lindor, (ACCA, June 14, 2023), the Army Court of Criminal Appeals rejected appellant's claim that his murder sentence violated his free exercise rights under the 1st Amendment and RFRA.  The case involves a Staff Sergeant who, after multiple attempts, succeeded in murdering his wife through the use of rituals and poisons recommended by a Vodou practitioner in Haiti. The court said in part:

[A]ppellant's actions to summon Vodou rituals ... were consistent with his First Amendment right to freely exercise his religious beliefs.... [T]he record contains no indication that they called for any illegal activity or result.... The stipulation's derogatory references to these Vodou rituals—after all, they were categorized as "aggravation" evidence—violated the First Amendment's free exercise clause. The government, consistent with the Constitution's guarantee of free exercise, "cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices."...

However, our analysis does not end there,.... [Appellant] waived his objection to evidence of these particular spells in two ways.... First, the military judge directly advised appellant and his counsel that, if he admitted it, he would consider the stipulation of fact to decide whether appellant was guilty, and, if so, an appropriate sentence; appellant and his counsel agreed. Second, the military judge specifically asked appellant's counsel whether he had any objections to the stipulation; counsel responded, "No, Your Honor."...

Turning to appellant's violence toward RL, we view this as substantially different from the rituals about AD and government officials. We have searched for, but cannot find, any authority to support appellant's tacit argument that the First Amendment's "free exercise" clause can broadly shield one from government action to describe, prosecute, and punish conduct that unlawfully endangers another person's life...

Put plainly, we decline to characterize appellant's violent misconduct toward RL as the free exercise of religious belief.... [A]ctivities that harm others are not protected by the free exercise clause. To characterize appellant's chosen techniques to plan, express, and actuate his intent to murder RL as the free exercise of his religious beliefs would expropriate the free exercise clause of any principled, reasonable meaning. The United States Constitution's framers and the various ratifying conventions plainly and deliberately did not contemplate that one could seek protection in the clause for an act that violated another's right to be free from malicious violence.

Religion Is Relevant In Trial For Marketing Unlicensed Drug

In United States v. Grenon, (SD FL, June 12, 2023), a Florida federal district court, ruled on a motion in liwas through which the government was seeking to exclude various pieces of evidence in the criminal trial of defendants for manufacturing, marketing and distributing an unlicensed drug. The court summarized the charges against defendants:

Defendants are members of Genesis II Church of Health and Healing ... which the Government alleges is “an explicitly nonreligious entity that [Defendant, Mark Scott Grenon] co-founded[.]”...

Under the guise of Genesis, Defendants promoted MMS as a miracle cure to various illnesses and ailments, even though “[w]hen ingested orally as directed by [] Defendants, MMS became chlorine dioxide, a powerful bleaching agent typically used for industrial water treatment or bleaching textiles, pulp, and paper.”...

The court ruled in part:

The Government first seeks to prevent Defendants from suggesting that their conduct was “a religious exercise, constitutionally protected under the First Amendment.”...

... [C]onsidering the Government’s accusations regarding Defendants and Genesis..., it would likely be impossible to conduct this trial without discussion of Defendants’ alleged religion, as well as their personal beliefs regarding the First Amendment...

The court also refused to preclude defendants from raising a defense under RFRA, but did rule that the applicability of RFRA is a pure question of law so that no jury instruction on the applicability of RFRA should be permitted.

9th Circuit: U.S. Has Not Waived Sovereign Immunity For Damages Under RFRA

In Donovan v. Vance, (9th Cir., June 13, 2023), the U.S. 9th Circuit Court of Appeals held that claims for injunctive and declaratory relief by Department of Energy employees who objected to the government's Covid vaccine mandate are moot because the Executive Orders being challenged have been revoked. Insofar as employees with religious objections to the vaccine were seeking damages, the court held that the United States has not waived sovereign immunity for damages under RFRA. Plaintiffs had sued federal officials in their official capacity.

Ministerial Exception and RFRA Defenses Rejected in Suit Over Firing of Bible Translation Company IT Employee

In Ratlliff v. Wycliffe Associates, Inc., (MD FL, May 26, 2023), a Florida federal district court refused to dismiss a Title VII employment discrimination suit brought against a Bible translation company by a software developer who was fired after the company learned that he had entered a same-sex marriage. The court rejected defendant's reliance on RFRA, concluding that "s RFRA does not apply to lawsuits in which the government is not a party."  It rejected defendant's "ministerial exception" defense, saying in part:

... Plaintiff does not qualify as a minister.

... Plaintiff was seemingly hired for his technological aptitude.... Accordingly, Plaintiff’s role was to employ his knowledge to develop software, not to act as a source of religious conveyance.... While the software’s purpose may have been to translate the Bible, Plaintiff himself was not doing so.... Further, Plaintiff’s direct interactions involved other software and database developers—not the individuals seeking out Defendant’s mission....

... [A]t bottom here, Plaintiff is a software developer, with no idiosyncratic religious title, background, education, or function.....

Clergy Sue Federal Penitentiary To Obtain Physical Contact With Death Row Inmates

Suit was filed last week in an Indiana federal district court by two ministers who regularly visit death row inmates in a federal penitentiary in Indiana. One plaintiff is an Episcopal minister and the other in the Unitarian Universalist Church and the Christian Church (Disciples of Christ). The complaint (full text) in Eiler v. Complex Warden, Federal Correctional Complex, Terre Haute, (SD IN, filed 4/25/2023), alleges violations of the Religious Freedom Restoration Act, saying in part:

The plaintiffs have sincere religious beliefs that at times during prayer they must be able to touch the prisoners and the prisoners desire that this physical contact occur during prayer. However, they are precluded from touching the prisoners by defendant’s policy that allows them only non-contact visitation. This policy burdens plaintiffs’ religious exercise without justification.

The complaint also alleges that barring physical contact with prisoners as they are being executed violates plaintiffs' free exercise rights under RFRA. WFIU reports on the lawsuit.

Mississippi Must Grant Religious Exemptions To School Vaccination Requirements

 In Bosarge v. Edney, (SD MS, April 18, 2023), a Mississippi federal district court issued a preliminary injunction requiring Mississippi's State Health Officer, as well as school officials named as defendants, to provide religious exemptions from the state's mandatory vaccination requirements for school children. The court said in part:

The face of the statute allows for medical exemptions but affords no exemption for religious beliefs, and the Complaint alleges that this constitutes “an unconstitutional value judgment that secular (i.e., medical) motivations for opting out of compulsory immunization are permitted, but that religious motivations are not.”....

The Attorney General’s argument is essentially that the Compulsory Vaccination Law does not violate the Free Exercise Clause because the [Mississippi Religious Freedom Restoration Act] MRFRA saves it.... Taking this argument to its logical conclusion as to Plaintiffs’ facial challenge, no Mississippi statute could ever violate the Free Exercise Clause on its face because the more general, non-specific MRFRA applies to all State laws and operates to cure any law that would otherwise be deemed to violate the Free Exercise Clause.... However, at least in this case, the Court is not persuaded that the MRFRA can be read in this fashion with respect to Plaintiffs’ facial challenge.

RNS reports on the decision.

IRS Correctly Denied Non-Profit Ruling to Church That Promoted Use of Ayahuasca

In Iowaska Church of Healing v. United States, (D DC, March 31, 2023), the D.C. federal district court upheld the IRS's refusal to grant §501(c)(3) non-profit status to a church that promotes the religious use of Ayahuasca, a tea brewed from plants containing a drug that is illegal under the federal Controlled Substances Act. The church, which has 20 members located around the world, applied to the Drug enforcement Administration for a religious exemption from CSA provisions. After four years, that application is still pending.  The court said in part:

The IRS correctly concluded that, until plaintiff obtains a CSA exemption, its promotion and use of Ayahuasca remains illegal under federal law, and plaintiff is neither organized nor operated exclusively for public purposes. As a result, plaintiff is not entitled to an exemption from income tax under section 501(c)(3).

Plaintiff had argued that the Supreme Court's decision in the O'Centro case entitled it to a tax exemption.  The court responded:

[T]he holding in O Centro stands only for the principle that obtaining a CSA exception for religious use of Ayahuasca is possible, if such use is in fact a sincere religious exercise. The flaw in plaintiff’s reliance on O Centro here, is that plaintiff has still not obtained that CSA exception—and whether plaintiff’s showing made to the DEA is sufficient to qualify for this exemption remains an open question that is not before this Court. O Centro simply does not stand for plaintiff’s asserted holding, that all Ayahuasca use is necessarily religious, and that case certainly does not establish that all organizations making use of Ayahuasca are entitled to an exemption from income tax, which is the issue pending here.

The court also held that the church lacks standing to challenge the denial of non-profit status as a violation of RFRA because "plaintiff’s inability to use Ayahuasca does not stem from the IRS Determination Letter, but rather from the CSA’s ban on using DMT, and plaintiff’s lack of a CSA exemption thus far."

North Dakota Enacts A State RFRA

Last week, North Dakota Governor Dout Burgum signed House Bill No. 1136 (full text), North Dakota's version of the Religious Freedom Restoration Act. The new law provides in part:

... [A]state or local government entity may not:

a. Substantially burden a person's exercise of religion unless applying the burden to that person's exercise of religion in a particular situation is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling government interest;

b. Treat religious conduct more restrictively than any secular conduct of reasonably comparable risk; or

c. Treat religious conduct more restrictively than any comparable secular conduct because of alleged economic need or benefit.

ADF issued a press release announcing the signing of the bill. [Thanks to Greg Chaufen for the lead.]

Maker of Religious-Themed Military Dog Tags Can Move Ahead with 1st Amendment Claims Against DoD

In Shields of Strength v. U.S. Department of Defense, (ED TX, March 31, 2023), a Texas federal district court allowed a company that manufactures military personnel "dog tags" to move ahead with certain of its 1st Amendment claims against the military that sought to prevent the company from producing dog tags with Biblical or other religious references near symbols or phrases that the military had registered for trademark protection. DoD regulations provide:

DoD marks may not be licensed for any purpose intended to promote ideological movements, sociopolitical change, religious beliefs (including non-belief), specific interpretations of morality, or legislative/statutory change.

 The court said in part:

If the military does not have meaningful conditions and controls on the licensing of its trademarks, the military may be deemed to have opened a limited public forum for private expression using those marks.... If a public forum were opened, disallowing views that promote religious beliefs would seem a prima facie case of unconstitutional viewpoint discrimination. So defendants’ motion to dismiss the viewpoint-discrimination claims ... is denied....

For purposes of the religious-exercise claims ... the court assumes that any marks not licensed for use on Shields’ dog tags are valid trademarks, used in a way likely to confuse consumers, without a defense to liability (other than religious-exercise rights). The question under Counts 2 and 8 is whether the military’s failure to license that usage violates the Free Exercise Clause or RFRA. 

The answer turns on the same categorization called for by the free-speech challenge.... If the military’s grants of trademark licenses are government speech, then any burden from the military’s licensing choice is justified by the compelling governmental interest that animates trademark law generally and, specifically, a trademark owner’s liberty to decide and control its own vision of a mark’s reputation....

On the other hand, if the military’s program here is so unrestrictive that the military has surrendered any licensing voice—making its licensing program a limited public forum for private speech using the marks—that deficiency also negates the compelling public interest for denying Shields’ ability to use the marks.... 

However, the court refused to issue a preliminary injunction because it found no substantial likelihood of success on the claims.

3rd Circuit: Qualified Immunity Can Be Asserted in RFRA Case, But Not in This One

In Mack v. Yost, (3rd Cir., March 21, 2023), the U.S. 3rd Circuit Court of Appeals in a 2-1 decision held that qualified immunity can be asserted as a defense by prison officers in a suit against them under RFRA, but also concluded that at the summary judgment stage here defendants had not shown facts demonstrating that they are entitled to the defense. The majority summarized its 48-page opinion in part as follows:

When Mack was incarcerated, he worked at the prison commissary, where two supervising prison guards singled him out for harassment because of his Muslim faith. Most significantly, the evidence as it now stands shows that, when Mack would go to the back of the commissary to pray during shift breaks, the guards would follow him and deliberately interfere with his prayers by making noises, talking loudly, and kicking boxes. Fearing retaliation if he continued to pray at work, Mack eventually stopped doing so, but the guards nevertheless engineered his termination from his commissary job. He then sued.

... The guards ... moved for summary judgment ... on the theory that they are entitled to qualified immunity.... [T]he District Court sided with them. It held that ... no clearly established caselaw would have put a reasonable person on notice of the illegality of the guards’ actions. Mack has again appealed.

We agree with Mack that granting summary judgment was wrong. While ... qualified immunity can be asserted as a defense under RFRA, the officers have not – at least on this record – met their burden of establishing that defense.... [E]vidence of the RFRA violation here involved significant, deliberate, repeated, and unjustified interference by prison officials with Mack’s ability to pray as required by his faith. Based on those facts ..., the officers are not entitled to qualified immunity. But if different facts come out at trial, the officers may again raise qualified immunity....

Judge Hardiman dissented, saying in part:

Even accepting the majority’s articulation of the right at issue, I would not find it clearly established here.

The cases Mack cites, as the majority notes, are not factually analogous. And the majority identifies no other precedent—from our Court or elsewhere, before or after RFRA was enacted—sufficiently similar to deny Defendants qualified immunity.

West Virginia Legislature Passes Religious Freedom Act

The West Virginia legislature yesterday gave final passage to the Equal Protection for Religion Act (full text). The bill bars state action that substantially burdens a person's exercise of religion unless there is a compelling governmental interest and the least restrictive means are used. It also prohibits treating religious conduct more restrictively than other conduct of reasonably comparable risk, or more restrictively than comparable conduct for economic reasons. It provides for injunctive or declaratory relief and recovery of costs and attorneys' fees. Among other things, the bill does not "protect actions or decisions to end the life of any human being, born or unborn..." The bill which now goes to Governor Jim Justice for his signature passed the Senate in accelerated fashion after it voted 30-3 to suspend its rules that normally require three readings. AP and the legislature's Wrap Up blog report on the bill's passage.