Transcript and Audio Are Available of Supreme Court Arguments In RFRA Damages Case

This morning the U.S. Supreme Court heard oral arguments in Tanzin v. Tanvir. (Transcript of oral arguments) (Audio of oral arguments.)  In the case, a 3-judge panel of the 2nd Circuit Court of Appeals held that under the Religious Freedom Restoration Act, a plaintiff may sue federal officials in their individual capacities and may recover monetary damages from them. The holding comes in a lawsuit by three Muslims who claim that their names were placed on the "No Fly List" in retaliation for their refusal to serve as government informants. (See prior posting). The SCOTUSblog case page has links to the briefs of the parties, amicus briefs and other filings in the case.

UPDATE: Deseret News reports on the oral arguments.

Order To Stay Away From Basilica Did Not Violate RFRA

 In De Bèarn v. United States, (DC Ct. App., Sept. 10, 2020), the District of Columbia's highest local appellate court held that a stay-away order barring appellant from the Basilica of the National Shrine of the Immaculate Conception did not violate his rights under the Religious Freedom Restoration Act. Gaston DeBéarn was arrested on charges of destruction property after he entered the Basilica yelling about the need to restore the traditional mass and ran to the altar knocking over candle sticks. A court issued the stay-away order as a condition of releasing DeBéarn before trial.  DeBéarn twice violated the order and was also charged with two counts of contempt. In rejecting DeBéarn's RFRA defense, the court said in part:

“Not just any imposition on religious exercise creates a substantial burden; a burden must have some degree of severity to be considered substantial.”...

At trial, appellant noted that the Shrine was his “favorite” place to attend mass and that he did not “go to other churches” because they are “just not as beautiful as that one.” He acknowledged, however, that he could go to other churches. “With so many alternative places to practice [his religion],” we are satisfied that the stay-away order imposed on appellant as to a single Catholic church “d[id] not force [appellant] to choose between abandoning [his] faith and facing criminal prosecution.”...

RFRA Claim For Insisting On Social Security Number In Passport Application Moves Ahead

 In Carmichael v. Pompeo, (D DC, Aug. 28, 2020), three individuals sued the State Department because it insisted that they furnish their Social Security numbers in order to renew their passports. Plaintiffs claim that identifying themselves with Social Security numbers violates their Christian beliefs. The court dismissed most of plaintiffs' claims, but allowed them to move forward, among others, with their claim under the Religious Freedom Restoration Act. The court concluded that plaintiffs had adequately alleged a substantial burden on their religious exercise:

They must choose between adhering to their religious beliefs—the sincerity of which is not challenged by the Government nor questioned by the Court—and receiving a government benefit.

Various Challenges To Terrorism Watch List Practices Can Move Ahead

In El Ali v. Barr, (D MD, July 20, 2020), a Maryland federal district court allowed some of the plaintiffs to move ahead with challenges to practices involving inclusion on terrorism watch lists. The court explained:

Plaintiffs are 39 individuals—37 U.S. citizens and two legal residents—who claim that inclusion in the Government’s Terrorism Screening Database (“TSDB”) and various related Watchlists impair or prohibit air and land travel in the United States. Plaintiffs allege that their list status, or status by association with those on a list, subjects them to constitutionally impermissible detentions, searches, and screening at airports and land border entries, or in some cases, denial of air travel altogether. Relatedly, Plaintiffs allege that their list status has burdened their families and businesses, and inflicted other wide-ranging harms.

Among the claims that can move ahead are claims of intentional religious and racial discrimination, as well as Religious Freedom Restoration Act complaints that individuals were interrogated about their Muslim religious practices, and that interrogations and detentions interfered with the ability to perform Umrah and Hajj. The court dismissed the claim that offers to clear up plaintiffs' problems if they would act as FBI informants imposed a substantial burden on their religious exercise. CAIR issued a press release announcing the decision.

Clergy Cannot Get Inmates' Executions Delayed Because of COVID Fears

In Hartkemeyer v. Barr, (SD IN, July 14, 2020), an Indiana federal district court refused to delay the execution of prisoners in two separate cases where the prisoners' ministers of record argued that scheduling the execution during the COVID-19 epidemic violates the clergy's rights under  RFRA.  Each of the clergymen had a sincerely held religious belief that they needed to attend to the spiritual needs of the prisoner facing execution.  The court rejected the argument, saying n part:

The mere scheduling of an execution imposes no obligation or restriction on the religious advisor whom the condemned prisoner has selected to attend.

CNA reports on the decision.

Supreme Court Upholds Expanded Exemptions From ACA Contraceptive Coverage Mandate

In a 7-2 decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, (Sup. Ct., July 8, 2020), the U.S. Supreme Court rejected challenges to the Trump Administration's expanded exemptions from the Affordable Care Act contraceptive coverage mandate.  The challenged rules allowed employers with religious exemptions and most employers with moral objections to opt out of furnishing coverage. Justice Thomas' majority opinion, joined by Chief Justice Roberts and Justices Alito, Gorsuch and Kavanaugh held that the ACA gives the relevant federal departments authority to provide these exemptions from the contraceptive mandate. It went on:

The Departments also contend, consistent with the reasoning in the 2017 IFR and the 2018 final rule establishing the religious exemption, that RFRA  independently compelled the Departments’ solution or that it at least authorized it.  In light of our holding that the ACA provided a basis for both exemptions, we need not reach these arguments. We do, however, address respondents’ argument that the Departments could not even consider RFRA as they formulated the religious exemption from the contraceptive mandate. Particularly in the context of these cases, it was appropriate for the Departments to consider RFRA.

The Court also rejects challenges to the procedural process used to adopt the rules-- including the claim that the Departments did not maintain an open mind in considering comments on the rules before their adoption in final form, saying in part:

We decline to evaluate the final rules under the open-mindedness test. We have repeatedly stated that the text of the APA provides the “‘maximum procedural requirements’” that an agency must follow in order to promulgate a rule.

Justice Alito, joined by Justice Gorsuch, filed a concurring opinion, saying in part:

I would hold not only that it was appropriate for the Departments to consider RFRA, but also that the Departments were required by RFRA to create the religious exemption (or something very close to it). I would bring the Little Sisters’ legal odyssey to an end.

Justice Kagan, joined by Justice Breyer, concurred in the judgment, filing an opinion agreeing that the Departments had statutory authority to differentiate among health plans, but concluding that petitioner's challenge that the Departments' actions were arbitrary and capricious remain open upon remand:

That issue is now ready for resolution, unaffected by today’s decision.  An agency acting within its sphere of delegated authority can of course flunk the test of “reasoned decision making.”... The agency does so when it has not given “a satisfactory explanation for its action” .... Assessed against that standard of reasonableness, the exemptions ... give every appearance of coming up short.

Justice Ginsburg filed a dissenting opinion, joined by Justice Sotomayor, saying in part:

In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs.... Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.

CNN reports on the decision.

Suit Challenges Illinois Abortion Coverage Mandate

Suit was filed this week in an Illinois state trial court by a religious organization and two employers challenging the Illinois Reproductive Health Act of 2019.  The Act requires every health insurance plan which provides pregnancy-related benefits to also provide coverage for abortion. The complaint (full text) in Illinois Baptist State Association v. Illinois Department of Insurance, (IL Cir. Ct., filed 6/10/2020), contends that the statute violates the Illinois Religious Freedom Restoration Act and the Illinois Health Care Right of Conscience Act. Thomas More Society issued a press release announcing the filing of the lawsuit.

RFRA Defense Rejected In Possession of Firearms Case

Inner City Press reports on a sentencing decision handed down yesterday in a New York federal district court in U.S. v. Cruz. The trial court judge rejected defendant's Religious Freedom Restoration Act defense in his sentencing hearing for illegal possession of a loaded firearm. Defendant's counsel argued that defendant's possession of the firearm was "solely for use in the ceremonial practice of his religion, Palo Mayombe. Firearms hold only symbolic meaning in the ritual practice of the religion and involve no violence or threat of violence." The judge sentenced defendant to 21 months in prison followed by three years of supervised release.

1st Circuit OKs "So Help Me God" In Naturalization Oath

In Perrier-Bilbo v. United States, (1st Cir., April 3, 2020), the U.S. 1st Circuit Court of Appeals rejected constitutional challenges to the inclusion of "so help me God" at the end of the oath of allegiance administered at naturalization ceremonies. Plaintiff, a French citizen, was offered the options of just not repeating those words during the ceremony or of having a private ceremony where the oath would be administered without that phrase. She rejected these as inadequate.

The court denied plaintiff's Establishment Clause challenge, applying the test used by the Supreme Court in American Legion v. American Humanist Association, saying in part:

We follow the Supreme Court's most recent framework and apply American Legion's presumption of constitutionality to the phrase "so help me God" in the naturalization oath because we consider the inclusion of similar words to be a ceremonial, longstanding practice as an optional means of completing an oath. And because the record does not demonstrate a discriminatory intent in maintaining those words in the oath or "deliberate disrespect" by the inclusion of the words, Perrier-Bilbo cannot overcome the presumption.

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

We do not second-guess the sincerity of Perrier-Bilbo's beliefs or her feeling of distress upon hearing the phrase at issue. But even if the phrase offends her, offense "does not equate to coercion," Town of Greece, 572 U.S. at 589, and the Free Exercise Clause does not entitle her to a change in the oath's language as it pertains to others....

The court rejected Plaintiff's argument under RFRA, saying in part:

While she might find the options offered by the Government subjectively burdensome, however, the district court was right to conclude that not every imposition or inconvenience rises to the level of a "substantial burden."

The court also rejected equal protection and due process challenges.  Judge Barron filed a concurring opinion. Free Thinker blog discussed the decision.

Interesting RFRA Case Involving Proof of Infant's Citizenship

Sabra v. Pompeo, (D DC, April 2, 2020), is an unusual RFRA case.  Mohammed Sabra and his wife Ponn Sabra are United States Citizens.  Here are Mrs. Sabra's claims, as recounted by the court:

In September 2018, Mrs. Sabra moved from the United States to Gaza with her three daughters because her two eldest daughters attend college there.... After arriving in Gaza, Mrs. Sabra discovered that she was pregnant with Baby M....  Mrs. Sabra decided to stay in Gaza to be close to Mr. Sabra’s family there....

In 2019, Baby M was born at home in Gaza just after intense bombing was going on in Gaza City.  In June 2019, Mrs Sabra contacted the U.S. embassy in Israel seeking an emergency appointment at the Erez Crossing to obtain a Counselor Report of Birth Abroad and a passport for Baby M.  The parents indicated that they needed to seek medical treatment for Baby M in the United States.  Because Mrs. Sabra was 46 years old, the consulate insisted on additional evidence establishing that she was in fact the baby's mother.  The embassy ultimately insisted on photos of Mrs. Sabra during her pregnancy and DNA testing of Baby M.  However the Sabra's, who are Muslim, objected:

... Mr. Sabra has a “strong religious hesitation” to DNA testing, whereas Mrs. Sabra has an “absolute religious objection” to the DNA testing of Baby M.... With respect to the photographs, Plaintiff’s counsel confirmed that there are two photographs of Mrs. Sabra during the pregnancy, but Mr. and Mrs. Sabra refuse to provide those photographs to the Embassy based on religious objections..... The basis ... is that the photographs are “very personal,” they were “taken in an intimate in-house setting with just the family,” and “for religious views, [they] should [not] be seen by anyone outside of the family ever.”

In an 87-page opinion that deals with a number of other issues as well, the court refused to dismiss plaintiffs' RFRA claims, saying in part:

There is a genuine dispute as to whether the Embassy’s request for the DNA testing and Mrs. Sabra’s pregnancy photographs served a compelling interest by the least restrictive means.

Court Interprets Defenses Under Illinois RFRA and Right of Conscience Act

In Rojas v. Martell, (IL App., March 6, 2020), an Illinois state appellate court answered four certified questions on the state's  Health Care Right of Conscience Act and its Religious Freedom Restoration Act. The court held that neither the analytic framework not the reasonable accommodation defense of Title VII should be read into these state statutes. It also concluded that transfer of an employee to a job that does not include the religiously objectionable duties may be permissible under the Right of Conscience Act. The issues arose in a case in which a county health department nurse claimed that the health department discriminated against her after she asserted that her Catholic religious beliefs prevented her from providing birth control, from providing Plan B emergency contraception, and from making abortion referrals.

Court Accepts RFRA Defenses of Volunteers Feeding Migrants

In United States v. Hoffman, (D AZ, Feb. 3, 2020), an Arizona federal district court reversed the criminal convictions of four volunteers aiding migrants through the faith-based organization No More Deaths/No Más Muertes. A federal magistrate judge had fined and imposed probation on the defendants for violating federal regulations barring entry into a national wildlife refuge without a permit and barring abandoning property there. Summarizing its holding, the court said in part:

Defendants ... appeal from convictions for violations of the regulations governing the Cabeza Prieta National Wildlife Refuge.... The violations were committed in the course of leaving supplies of food and water in an area of desert wilderness where people frequently die of dehydration and exposure. Defendants, who are volunteers with a charitable organization affiliated with the Unitarian Universalist Church, admit the factual allegations made by the Government.... Defendants argue that those actions, taken with the avowed goal of mitigating death and suffering, were sincere exercises of religion and that their prosecution is barred by the Religious Freedom Restoration Act.... The Court finds that Defendants demonstrated that their prosecution for this conduct substantially burdens their exercise of sincerely held religious beliefs, and that the Government failed to demonstrate that prosecuting Defendants is the least restrictive means of furthering any compelling governmental interest.

Law, Rights & Religion Project issued a press release announcing the decision.

Court Denies Preliminary Injunction To Pastor Targeted For Ministering To Migrants

In Dousa v. U.S. Department of Homeland Security, (SD CA, Jan. 28, 2020), a California federal district court refused to grant a preliminary injunction to a Christian pastor who claimed that her right to freely exercise her religion was substantially burdened by federal government's surveillance, brief detention and harassment of her. She contended that the government's actions amounted to retaliation for her activities ministering to asylum seekers and migrant on the Mexican side of the U.S. southern border. Denying a preliminary injunction, the court said in part:

Dousa has not shown at this stage that the Government has substantially burdened her Free Exercise rights. The harms she alleges—a “canceled trip to Mexico, refrain[ing] from blessing migrant marriages, hav[ing] her pastoral counseling chilled,” ... are subjective, and the Ninth Circuit is clear that “a subjective chilling effect on free exercise rights is not sufficient to constitute a substantial burden.”

However the court refused to completely dismiss her allegations of 1st Amendment and RFRA violations, saying in part:

It bears repeating that a preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to relief.” ... The conclusion here that Dousa is not entitled to an injunction is simply a finding that she has not made that “clear showing” at this stage; it is not a finding that she cannot make that showing down the line, perhaps with the advantage of additional discovery.

Courthouse News Service reports on the decision.

Suit Challenges Postal Service's Rules On Content of Customized Stamps

Suit was filed earlier this month in a Texas federal district court challenging the constitutionality of a portion of the U.S. Postal Service's regulation (39 CFR §501.21) that limits the depictions that may be placed on customized postage stamps produced by private providers authorized by USPS. The regulation limits, among other things, "Any depiction of political, religious, violent or sexual content".  The complaint, (full text) in Fletcher v. U.S. Postal Service, (ED TX, filed 12/19/2019), contends that plaintiff's free speech and free exercise rights (including her rights under RFRA) are violated because she will be unable to create personalized postage stamps that allow her to share her love of Christmas and other holidays through PhotoStamps.com's website.  According to the complaint:

16. The website also requires customers to agree that Stamps.com, in its sole discretion, may determine if designs meet the eligibility criteria and may also reject orders without explanations. If customers submit a design Stamps.com determines is in violation of their requirements, those customers may be charged a processing fee of $10 per image.

17. If customers publicly complain about the rejection of a stamp design, Stamps.com claims it will be harmed and may pursue legal action. The website states, “[if] you intentionally publicize such violation, you acknowledge that Stamps.com will suffer substantial damage to its reputation and goodwill and that you can be liable for causing such substantial damage.”

The complaint goes on to allege that:

... USPS chose to promulgate a regulation allowing third-party providers, such as PhotoStamps, to discriminate against speech. Regulation 39 C.F.R. § 501.7(c)(1) requires the provider—here, PhotoStamps—to ensure that what it prints is “[c]onsistent with the Postal Service’s intent to maintain neutrality on religious, social, political, legal, moral, or other public issues.”

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

Misunderstanding of RFRA Not A Defense To Willful Failure To File Tax Returns

The Oregonian reports that an Oregon federal district court yesterday found a tax protester guilty on four counts of willful failure to file tax returns.  The verdict came in a second trial on stipulated facts after defendant's first trial ended in a hung jury. The court ruled that while a good faith misunderstanding of the tax law is a defense to "willfulness", that defense was unavailable here. As reported by The Oregonian:

Bowman’s lawyer had argued during Bowman’s jury trial that Bowman’s reliance on another federal law, the Religious Freedom [Restoration] Act, led to his "good faith’' misunderstanding of his obligations under the federal tax code. The judge threw out that defense before Bowman’s second trial, ruling that any "good faith'' misunderstanding had to be of the tax code itself, not another law.

The court's ruling was presumably based on its reading of the U.S. Supreme Court's decision in Cheek v. United States (1991).  An appeal of the conviction is planned.

Court Dismisses Challenges To Indiana's RFRA

Last week an Indiana state trial court judge ruled that three Christian educational and advocacy organizations lack standing to challenge the constitutionality of Indiana's version of the Religious Freedom Restoration Act that excludes from its coverage conduct that discriminates, among other things, on the basis of sexual orientation or gender identity. The court also held that plaintiffs' claims are not ripe for adjudication. WIBC News reports on the decision. Here is the complaint filed in the case.

Supreme Court Grants Review In RFRA Damages Case

The U.S Supreme Court yesterday granted certiorari in Tanzin v. Tanvir. (Docket No.19-71, cert. granted 11/22/2019). In the case, a 3-judge panel of the 2nd Circuit Court of Appeals held that under the Religious Freedom Restoration Act, a plaintiff may sue federal officials in their individual capacities and may recover monetary damages from them. The holding comes in a lawsuit by three Muslims who claim that their names were placed on the "No Fly List" in retaliation for their refusal to serve as government informants. (See prior posting.) By a vote of 7-3, the 2nd Circuit denied en banc review. (See prior posting.) The SCOTUSblog case page has links to the fiilngs with the Supreme Court in the case.

Naval Base Protesters May Not Raise RFRA or 1st Amendment Defenses

In United States v. Kelly, (SD GA, Oct. 11, 2019), a Georgia federal magistrate judge ruled that seven Catholics who are members of an activist group opposed to nuclear weapons cannot raise RFRA or First Amendment defenses in their trial for trespass and destruction of government property.  Defendants broke into a highly secured Naval Submarine Base and in protest of nuclear weapons poured blood on the ground, hung banners and painted messages. (See prior posting.)  The court said in part:

Here, the Court has already fully considered Defendants’ RFRA arguments in the course of ruling on Defendants’ motions to dismiss. In its ruling, the Court determined that the Government has shown a compelling interest and that it is utilizing the least restrictive means...., Because this determination has been made as a matter of law, and Defendants may not present a RFRA defense to the jury at trial....

Cert. Petition Filed In Contraceptive Mandate Exemption Challenge

The Justice Department yesterday filed a petition for certiorari (full text) in Trump v. Commonwealth of Pennsylvania. In the case, the U.S. 3rd Circuit Court of Appeals affirmed a district court's entry of a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding the scope of the exemptions under the Affordable Care Act for employers having religious or moral objections to contraceptive coverage. (See prior posting.) The cert. petition presents the following questions:

1. Whether the agencies had statutory authority under the ACA and the Religious Freedom Restoration Act ..., to expand the conscience exemption to the contraceptive-coverage mandate.

2. Whether the agencies’ decision to forgo notice and opportunity for public comment before issuing the interim final rules rendered the final rules—which were issued after notice and comment—invalid under the Administrative Procedure Act....

3. Whether the court of appeals erred in affirming a nationwide preliminary injunction barring implementation of the final rules.

[Thanks to Tom Rutledge for the lead.]

Denial of Student Visa For Religious Trainee Is Upheld

In Ashby v. United States Department of State, (MD NC, Sept. 17, 2019), a North Carolina federal district court dismissed a suit challenging the State Department's refusal to issue a student visa to Colombian resident Jhonier Herrera, a "friend/ religious partner" of plaintiff Shon Ashby.  Ashby wished "to train and educate ... Herrera in the areas of business [and] religious training." The court rejected plaintiff's argument that visa rules favor other religious institutions such as religiously affiliated colleges. and that they substantially burden his exercise of religion.  The court said in part:

While Ashby might have plausibly alleged a disparate impact in favor of religious institutions, he fails to plausibly allege that any law or regulation is religiously targeted....

While Ashby may have a sincere desire to train Herrera on religious topics, this desire does not itself make Herrera’s presence necessary to Ashby’s religious exercise. Because Plaintiffs lack standing and fail to plausibly allege a substantial burden that prevents or inhibits them from practicing their religion, the RFRA claim will be dismissed.