Religious Questioning Of Muslim Travelers By Border Officers Upheld

In Kariye v. Mayorkas, (CD CA, Oct. 12, 2022), three Muslim plaintiffs sued the Department of Homeland Security alleging that border officers routinely and intentionally single out Muslim-American travelers to demand they answer religious questions. The court, in a 71-page opinion in its official format, first dismissed plaintiffs' Establishment Clause challenge. Applying the Supreme Court's test articulated in Kennedy v. Bremerton School District, the court said in part:

The court finds substantial legal authority supporting the government's historically broad authority to implement security measures at the border.... Additionally, the court finds substantial authority holding that maintaining border security is a compelling government interest.

The court rejected plaintiffs' free exercise claim, finding that plaintiffs had not sufficiently alleged a substantial burden on their religious exercise. It additionally concluded that even if there was a substantial burden, officers' questioning was narrowly tailored to advance a compelling governmental interest in protecting borders and preventing potential terrorism.

The court also rejected freedom of association, retaliation, equal protection and RFRA challenges to practices of border officers.

Suit Challenges Kentucky Abortion Bans As Violating Jewish Religious Beliefs

Suit was filed last Thursday in a Kentucky state trial court by three Jewish women who contend that Kentucky's strict abortion bans violate their religious freedom rights. The complaint (full text) in Sobel v. Cameron, (KY Cir. Ct., filed 10/6/2022), alleges that Kentucky law might be read to make it a capital offense to discard excess embryos created in the process of in vitro fertilization. The complaint alleges in part:

35. Under Jewish law, a fetus does not become a human being or child until birth. Under no circumstances has Jewish law defined a human being or child as the moment that a human spermatozoon fuses with a human ovum.

36. The question of when life begins for a human being is a religious and philosophical question without universal beliefs across different religions....

39. Plaintiff’s religious beliefs demand that they have more children through IVF, yet the law forces Plaintiffs to spend exorbitant fees to keep their embryos frozen indefinitely or face potential felony charges. This dilemma forces Plaintiffs to abandon their sincere religious beliefs of having more children by limiting access to IVF and substantially burdens their right to freely exercise these sincerely held religious belief....

51. Kentucky's contemporary Abortion Law is focused on preservation of ova and blastocysts on the basis of a religious understanding of fetal personhood.....

The complaint alleges that Kentucky abortion laws are void for vagueness and unintelligibility; violate the Kentucky Religious Freedom Restoration Act; and violate the Kentucky Constitution by giving preference to sectarian Christianity and diminishing Plaintiffs' privileges, rights, and capacities on account of their Jewish faith and beliefs. Los Angeles Times reports on the lawsuit.

Indiana Abortion Restrictions Challenged Under State RFRA

A class action lawsuit was filed yesterday in an Indiana state trial court court on behalf of all persons in the state whose religious beliefs direct them to obtain abortions in situations prohibited by the state's recently enacted restrictive abortion ban. The suit was filed by five anonymous plaintiffs and an organization, Hoosier Jews For Choice.  The complaint (full text) in Anonymous Plaintiffs 1-5 v. Individual Members of the Medical Licensing Board of Indiana, (IN Super. Ct., filed 9/8/2022), contends that the law violates Indiana's Religious Freedom Restoration Act. ACLU issued a press release announcing the filing of the lawsuit.

ACA Mandate To Cover PrEP Drugs Violates RFRA

In Braidwood Management Inc. v. Becerra, (ND TX, Sept. 7, 2022), a Texas federal district court held that the ACA mandate for health insurance coverage of PrEP drugs violates the rights under the Religious Freedom Restoration Act of a for-profit corporation whose owner believes that providing such coverage for his employees would make him complicit in their homosexual conduct and sexual activity outside of marriage. The court said in part:

Defendants dispute Hotze’s beliefs. They argue that Hotze’s claim that PrEP drugs facilitate various kinds of behavior is an empirical one that requires factual support.... But Defendants inappropriately contest the correctness of Hotze’s beliefs, when courts may test only the sincerity of those beliefs...

Defendants claim a compelling interest in reducing the spread of HIV, a potentially fatal infectious disease.... 

But Defendants frame the interest too broadly. “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” ...

... Defendants provide no evidence of the scope of religious exemptions, the effect such exemptions would have on the insurance market or PrEP coverage, the prevalence of HIV in those communities, or any other evidence relevant “to the marginal interest” in enforcing the PrEP mandate in these cases...

Even if Defendants had satisfied the compelling-interest prong, they have not shown that the PrEP mandate is the least restrictive means of furthering that interest...

Much of the court's 42-page opinion relates to other issues. Bloomberg reports on the decision. [Thanks to James Phillips for the lead.]

RFRA Defense Cannot Be Decided On Pre-Trial Motion

In United States v. Skeet, (D NM, Aug. 26, 2022), a New Mexico federal district court held that defendant, a member of the Navajo nation, must assert as a defense at trial rather than in a pre-trial motion, the contention that the Migratory Bird Treaty Act and the Bald and Gold Eagle Protection Act violate his rights under the Religious Freedom Restoration Act. The court said in part:

[B]ecause Mr. Skeet’s RFRA defense implicates primarily factual rather than legal issues, the Court finds that this defense is “territory reserved to the jury as the ultimate finder of fact in our criminal justice system.” ... Additionally, because the RFRA defense goes to the ultimate issue of Mr. Skeet’s guilt, it would require a trial on the merits of the case—a prospect that is proscribed by Rule 12(b)(1) and that disserves judicial economy.... Nevertheless, Mr. Skeet is welcome to assert a RFRA defense at trial.

5th Circuit Approves Injunction Shielding Religious Organizations From Mandate On Transgender Medical Care

In Franciscan Alliance, Inc. v. Becerra, (5th Cir., Aug. 26, 2022), the U.S. 5th Circuit Court of Appeals, invoking RFRA, upheld a Texas federal district court's issuance of a permanent injunction barring the government from interpreting or enforcing provisions of the Affordable Care Act to require religious organizations, in violation of their religious beliefs, to perform or provide insurance coverage for gender-reassignment surgeries or abortions. At issue is the interpretation of the ACA's ban on discrimination on the basis of sex. The court however held that an alternative claim based on the Administrative Procedure Act was moot. Becket issued a press release announcing the decision.

Sikh Marine Recruits Lose Bid For Turbans and Unshorn Hair During Recruit Training

In Toor v. Berger, (D DC, Aug. 24, 2022), the D.C. federal district court refused to grant a preliminary injunction to three Sikh Marine recruits who wanted to prevent enforcement of the Marine's uniform and grooming policies during recruit training while their case continues to be litigated. Sikh religious beliefs require plaintiffs to maintain an unshorn beard and hair, wear a turban and wear other religious items. Plaintiffs contend that denying accommodation of their religious practices violates RFRA, the Free Exercise Clause and the Equal Protection Clause. The court held that even if plaintiffs have shown a likelihood of success on the merits and irreparable injury, the balance of equities and the overall public interest favor the military at this preliminary stage of proceedings. The court said in part:

The Marines have thus "credibly alleged" that "training in [the] manner" that would be required by the requested injunction will "pose a serious threat to national security" by disrupting defendant's well established method of transforming recruits through the discipline of uniformity.

No Church Autonomy Defense To Catholic Organization's Sexual Orientation Discrimination

In Doe v. Catholic Relief Services, (D MD, Aug. 3, 2022), a Maryland federal district court granted summary judgment in favor of plaintiff who was denied spousal health insurance coverage for his same-sex husband. Rejecting a church-autonomy defense, the court said in part:

CRS insists that any judicial inquiry into this case inevitably requires an inquiry into matters of Catholic faith and doctrine. This is not so; this case concerns a social service organization's employment benefit decisions regarding a data analyst and does not involve CRS's spiritual or ministerial functions.

The court held that Catholic Relief Services violated Title VII, and that the exemption in Title VII for religious organizations only applies to discrimination by them on the basis of religion. It also held that RFRA does not provide a defense because it applies only to claims against the government. The court also found no First Amendment violation, saying in part:

Our Constitution's solicitousness of religious exercise is not carte blanche for any religious institution wishing to place itself beyond the reach of any neutral and generally applicable law. This court need not engage in a strict scrutiny analysis that would apply if a truly comparable secular institution were being treated favorably compared to CRS.

The court went on to find violations of the federal and state Equal Pay Acts, and ordered certification to the state court of a question of coverage by Maryland's Fair Employment Practices Act.

Wire Fraud Indictment Did Not Violate RFRA

In United States v. Stevens, (SD FL, July 12, 2022), a Florida federal district court adopted the magistrate's lengthy opinion of (May 2, 2022) and refused to dismiss a money laundering and wire fraud indictment against a religious psychic. The fraud victim, Ilena Torruella, believed that she was cursed because she possessed millions of dollars of "dirty" family money. Defendant offered to break the curse by "cleansing" the money and showing God that the victim was not attached to it. According to the court:

The key point Defendant relies upon to seek dismissal of this indictment is that Stevens never expressly promised to return Torruella’s money and Torruella never directly asked whether it would be returned before turning over her funds to Stevens.... Without an express agreement or promise to return the money, Stevens concludes that Torruella received exactly what she bargained for. The money was cleansed when Torruella gave it away.

Defendant contends that the indictment infringes her free exercise rights under RFRA and the 1st Amendment. However the magistrate's opinion rejects that contention, saying in part:

[Stevens] does not allege that any religious belief or practice of hers requires her to convert other people’s money for her benefit on false pretenses.... She instead argues that in general terms her Roma beliefs are burdened by the prosecution of this case based on her inability to practice her spiritual healing practices without government intervention. But that is too attenuated under RFRA because there are plenty of alternatives for Stevens to practice her religion....

The court concluded:

The jury must, of course, determine that her conduct was carried out with fraudulent intent. Defendant may present a defense that she was simply pursuing her religious practices, which may be antithetical with criminal intent. If the jury finds her belief to be sincere, she may be acquitted. But that is a matter for trial, not for a motion to dismiss.

Volokh Conspiracy has additional excerpts from the decision.

Damage Claim For Denying Lincoln Memorial Religious Demonstration Permit Dismissed

In Ferguson v. Owen, (D DC, July 8, 2022), a D.C. federal district court dismissed, with leave to amend, a suit for damages against the head of the National Park Service Division of Permits Management for refusing plaintiff a permit for a 4-month long demonstration at the Lincoln Memorial.  He was offered a permit to demonstrate at the Korean War Veterans Memorial site. Plaintiff, a street musician, wanted to convey a religious/ political message.  The court rejected plaintiff's RFRA claim, finding that the denial had not imposed a substantial burden on his religious exercise, saying in part:

Must an individual have a central religious belief that requires demonstrating at the Lincoln Memorial in order for the denial of permit applications to demonstrate at the Lincoln Memorial—accompanied by the approval of permit applications to demonstrate at nearby locations—to constitute a substantial burden under RFRA? The answer to this question is yes.

The court also rejected plaintiff's 1st Amendment claim, refusing to extend implied Bivens causes of action to this type of claim.

9th Circuit: Oak Flat Land Exchange Did Not Substantially Burden Apache Religious Exercise

In Apache Stronghold v. United States, (9th Cir., June 24, 2022), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, held that a proposed federal government land exchange in Arizona with a mining company will not substantially burden Apache religious exercise in violation of RFRA. Nor will it violate the 1st Amendment because the Land Exchange Provision is a neutral and generally applicable law. The majority said in part:

Under RFRA, the government imposes a substantial burden on religion in two—and only two—circumstances: when the government “force[s individuals] to choose between following the tenets of their religion and receiving a governmental benefit” and when the government “coerce[s individuals] to act contrary to their religious beliefs by the threat of civil or criminal sanctions.” ... Here, the government will do neither by transferring Oak Flat to Resolution Copper.... The Department of Agriculture will simply transfer ownership of a plot of government land to Resolution Copper. The Land Exchange’s “incidental effects” on the religious exercise of Apache Stronghold’s members, as significant as they may be to the Apache, “may make it more difficult [for them] to practice [their religion] but [will] have no tendency to coerce [the Apache] into acting contrary to their religious beliefs.” ... Hence, under RFRA the Land Exchange imposes no substantial burden and RFRA thus does not limit the government’s ability to complete the Land Exchange. 

This is true even if the Land Exchange makes worship on Oak Flat “impossible.” 

Judge Berzon dissented, saying in part:

The majority applies an overly restrictive test for identifying a “substantial burden” on religious exercise under the Religious Freedom Restoration Act.... The majority’s flawed test leads to an absurd result: blocking Apaches’ access to and eventually destroying a sacred site where they have performed religious ceremonies for centuries does not substantially burden their religious exercise. The majority offers both a doctrinal and a practical basis for its unduly narrow definition of “substantial burden.” Both are incorrect.

The majority opinion includes a lengthy response to the dissent. Reuters reports on the decision.

9th Circuit Hears Oral Arguments In Tribe's Challenge To Geothermal Project

On Wednesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Fallon Paiute-Shoshone Tribe v. U.S. Department of the Interior (video of full oral arguments). In the case, in a January 14, 2022 opinion (full text) a Nevada federal district court, among other things, rejected a claim by the Fallon Paiute-Shoshone Tribe that construction of a geothermal facility will violate their rights under the Religious Freedom Restoration Act. The district court held that plaintiffs' claim that the project destroys the Tribe's ability to exercise its religious traditions is not enough to amount to a "substantial burden" on religious exercise. Desecration of a sacred area does not coerce Tribe members to act contrary to their religion. A conservation organization is also a plaintiff in the case. (See prior related posting.)  Nevada Current reports on this week's oral arguments.

Meat Processor Is Not State Actor In Requiring COVID Vaccination of Employees

In Reed v. Tyson Foods, Inc., (WD TN, June 14, 2022), a Tennessee federal district court dismissed plaintiffs' claims that their rights under RFRA and free exercise clause were violated when their employer required them to be vaccinated against COVID.  The court held that plaintiffs were not state actors, even though the President had invoked the Defense Production Act and instructed meat and poultry procession plants to continue operations.  The court said in part:

Plaintiffs contend that Defendant acted as an “agent of the government … by imposing strict worker vaccination rules to (in the estimation of the federal government), in order to preserve the integrity of the national food supply.”... However, no facts are pled that would enable the Court to find a sufficient nexus between Defendant’s vaccine policy and the involvement of the Government. The mere fact that Defendant relied on OSHA and CDC guidance in formulating its vaccine policy does not make Defendant an “agent of the government.” Nor does the fact that Defendant is subject to the federal government’s COVID-19 guidance for meat and poultry plants convert Defendant into a government actor.

The court also dismissed several other, but not all, of plaintiffs' additional claims.

Class Action Filed To Challenge Air Force Vaccine Mandate

Another lawsuit has been filed by religious objectors challenging the military's COVID vaccine mandate.  Brought in a Texas federal district court by nine members of the Air Force as a class action on behalf of all Air Force members with religious objections to the COVID vaccine, the complaint (full text) in Spence v. Austin, (ND TX, filed 5/27/2022), alleges violations of plaintiffs' rights under the 1st Amendment and RFRA.  It alleges in part:

Defendants  have  mandated  that  all  members  of  the  Air  Force  receive  a COVID-19  vaccine,  or  be involuntarily  separated.  In theory, Defendants  offer medical, administrative,  and  religious  accommodations  to  that  mandate.  But  in  practice, only servicemembers with medical or administrative reasons for an exemption from the mandate are accommodated. Religious accommodation requests (“RARs”) are universally denied unless the requester is already imminently leaving the Air Force. 

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

Supreme Court Stays District Court's Ban On Navy Applying Vaccine Mandate To SEALs With Religious Objections

Yesterday in Austin v. U.S. Navy Seals 1-26, (Sup.Ct., March 25, 2022), in a case on its shadow docket, the U.S. Supreme Court by a vote of 6-3 stayed a Texas district court's order that barred the Navy from considering the COVID vaccination status of 35 service members in making deployment, assignment and operational decisions. The service members all have religious objections to the vaccines. The Court's stay remains in effect while appeals to the 5th Circuit and, subsequently if necessary, to the Supreme Court are pending. The stay was granted through an unsigned one-paragraph order.  However, Justice Kavanaugh filed a concurring opinion, saying in part:

[T]he District Court, while no doubt well-intentioned, in effect inserted itself into the Navy’s chain of command, overriding military commanders’ professional military judgments. The Court relied on the Religious Freedom Restoration Act... But even accepting that RFRA applies in this particular military context, RFRA does not justify judicial intrusion into military affairs in this case. That is because the Navy has an extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all Special Warfare personnel—including control over decisions about military readiness. And no less restrictive means would satisfy that interest in this context.

Justice Thomas dissented without opinion.  Justice Alito, joined by Justice Gorsuch, filed a dissenting opinion, which concluded that the Navy had not satisfied the requirements of RFRA or the 1st Amendment.  However, the opinion would grant limited relief to the Navy while appeals are pending.  The opinion said in part:

While I am not sure that the Navy is entitled to any relief at this stage, I am also wary, as was the District Court, about judicial interference with sensitive military decision making. Granting a substantial measure of deference to the Navy, I would limit the [district court's] order to the selection of the Special Warfare service members who are sent on missions where there is a special need to minimize the risk that the illness of a member due to COVID–19 might jeopardize the success of the mission or the safety of the team members.

NBC News reports on the decision. [Thanks to Joshua Sarnoff via Religionlaw for the lead.]

Suit Says Border Agents Questioned Muslims About Their Religious Practices

Suit was filed yesterday in a California federal district court by three Muslim Americans who claim that they were asked religiously intrusive questions by U.S. Customs and Border Protection agents upon their return from international travel. Among the questions were: “How often do you pray?” “Do you attend mosque?” “Which mosque do you attend?” “Are you Sunni or Shi’a?”  The complaint (full text) in Kariye v. Mayorkas, (CD CA, filed 3/24/2022), contends in part:

Religious questioning such as this violates the U.S. Constitution. It furthers no valid—let alone compelling—government interest, and it is an affront to the First Amendment freedoms of religion and association. Moreover, because Defendants specifically target Muslim Americans for such questioning, they also violate the First and Fifth Amendments’ protections against unequal treatment on the basis of religion. Just as border officers may not single out Christian Americans to ask what denomination they are, which church they attend, and how regularly they pray, singling out Muslim Americans for similar questions is unconstitutional....

 This practice also violates the Religious Freedom Restoration Act.

 Wall Street Journal reports on the lawsuit.

Another Suit Seeks Religious Exemptions From Military's Vaccine Mandate

Yet another group of military personnel have filed suit challenging the military's COVID vaccine mandate.  As in a number of other cases, plaintiffs complain that while regulations allow religious exemptions, almost all applications for them are denied.  The complaint (full text) in Roth v. Austin, (D NE, filed 3/8/2022), was filed by 36 Air Force and Air National Guard members who allege that their rights under RFRA and the First Amendment have been infringed. WOWT reports on the lawsuit.

Suit Challenges DC's Remaining Mask Mandate For Catholic Schools

In Mayor's Order 2022-029 (Feb. 14, 2022), the District of Columbia lifted its COVID mask mandate for various business and recreation venues, and houses of worship, but continued the mandate for a number of facilities including "Public, public charter, private, parochial, and independent schools."  On Monday, suit was filed in the D.C. federal district court by parents of Catholic school students alleging that keeping the mask mandate on Catholic schools violates RFRA and the First Amendment. The complaint (full text) in Dugan v. Bowser, (D DC, filed 3/7/2022) alleges in part:

Defendants’ mandate requiring the children to wear masks in their Catholic school classrooms—while allowing children and adults to not wear masks nearly everywhere else—is arbitrary, unscientific, and irrational. Under Defendants’ policy, a child could sit for hours at the Wizards game at the crowded Capitol One Arena without wearing a mask, but she must cover her face for seven hours a day, the moment she steps into her Catholic school building....

In addition to unconstitutionally burdening Catholic schools and treating them unequally, Defendants’ prolonged mask mandate has had substantially detrimental effects on—and is continuing to significantly impede—the Parents’ children’s Catholic formation and education.

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

UPDATE: On March 11, ADF announced that the lawsuit has been voluntarily dismissed after D.C. revoked the mask mandate.  (Plaintiff's Notice of Voluntary Dismissal).

Air Force Reservist With Religious Objection To COVID Vaccine Wins Injunction

In Poffenbarger v. Kendall, (SD OH, Feb. 28, 2022), an Ohio federal district court issued a preliminary injunction barring the Air Force from taking further adverse action against an Air Force reservist who refuses for religious reasons to comply with the military's COVID vaccine mandate.  The court concluded that plaintiff's rights under both RFRA and the free exercise clause were violated, saying in part:

Defendants have not shown that the Air Force’s action meets the least-restrictive-means test. The evidence indicates that the Air Force has granted virtually zero exemptions to the COVID-19 vaccine mandate on religious grounds.... At the same time, the Air Force has granted thousands of exemptions to the COVID-19 vaccine mandate on non-religious grounds.... This supports that less restrictive means of furthering the Air Force’s interests are being provided (even if only on a “temporary” basis) on non-religious grounds. And, the Defendants have not shown why such less restrictive means cannot likewise be provided to Poffenbarger.

Springfield News-Sun reports on the decision.

Preacher Can Move Ahead With Selective Enforcement Challenge To U.S. Capitol Demonstration Limits

In Mahoney v. United States Capitol Police Board, (D DC, Feb. 22, 2022), a clergyman challenged traffic regulations that barred demonstrations by 20 or more people at various locations near the U.S. Capitol. Plaintiff claimed he felt "called by God" to hold a prayer vigil near the Capitol to mark the 20th anniversary of the 9-11 attacks. The court rejected plaintiff's facial free speech challenge to the regulation. However it permitted plaintiff to move ahead with his selective enforcement and free-association claims, saying in part:

Plaintiff has therefore alleged that the Board declined to enforce the Traffic Regulations against several large demonstrations that did not involve religious speech, while it enforced them against him because of the religious content of his speech. It is thus at least plausible that Defendants’ decision was based on the content of Mahoney’s speech, even if that is not the only plausible explanation.

The court rejected plaintiff's Free Exercise and RFRA challenges. It observed: "nowhere does he allege that having a large group present was essential to carrying out his sincerely held religious belief."