In Roe v. San Jose Unified School District Board, 2021 U.S. Dist. LEXIS 16633 (ND CA, Jan. 28, 2021), a California federal district court, while dismissing a number of plaintiffs' claims, permitted the Fellowship of Christian Athletes (FCA) to move ahead on an "as applied" challenge to the school district's nondiscrimination policies. Plaintiffs allege that schools used those policies as a pretext to revoke recognition of student FCA chapters because of their religious beliefs and their speech. At issue is FCA's Sexual Purity Policy that requires FCA leaders to resign their positions if they engage in extramarital sex or homosexual acts. The court held that claims of the individual plaintiffs should be dismissed because they cannot proceed under pseudonyms. It held that individual plaintiffs' claims for prospective relief are moot because they have graduated, and that FCA failed to plead organizational standing for prospective relief. It concluded, however, that claims for damages against defendants in their personal capacities (but not their official capacities) survive a motion to dismiss.
Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Saturday, January 30, 2021
Tuesday, November 10, 2020
Another Chapter In Challenge To Navy Chaplain Selection Procedures
In In re Navy Chaplaincy, (DC Cir., Nov. 6, 2020), the D.C. Circuit Court of Appeals issued the latest decision in a controversy that has been in litigation for over twenty years. In the case, non-liturgical Protestant chaplains allege discrimination against them by selection boards that control promotions and early retirements of Navy chaplains. The court said:
the district court made no mistake in granting summary judgment for the Navy on the Plaintiffs’ various First Amendment challenges to its selection board policies. See Chaplaincy, 323 F. Supp. 3d at 35-36, 55-56. With regard to the claims that certain selection board policies violated the Establishment Clause, the Plaintiffs had to show each policy had an unconstitutional effect; that is, the Plaintiffs had to show “the selection policies appear[ed] to endorse religion in the eyes of a reasonable observer.”... To prove an endorsement with statistics, the Plaintiffs had to show a stark disparity in outcomes during the relevant period ..., but the statistics they offered came nowhere close to doing so.
However the court remanded for further proceedings a claim by a chaplain endorsing agency, Associated Gospel Churches, of injury because of the Navy's policy. The trial court had dismissed the claim for lack of standing. The Court of Appeals said in part:
On appeal, AGC argues it has standing in its own right to challenge the Navy’s faith-neutral accession goals. We agree. AGC alleged the Navy’s accession goals resulted in AGC’s chaplain candidates entering the Navy at a significantly lower rate than they otherwise would have. AGC further alleged, because it relies upon its chaplains for financial support, it loses money when its ability to find placements for its candidates is hindered. AGC also alleged its low rate of success placing candidates in the Navy tarnished its reputation. These allegations satisfy all three elements of standing. We express no opinion on the sufficiency of the allegations in any other respect.
The court also reversed and remanded claims that had been dismissed as untimely, ordering the trial court to consider whether equitable tolling applies. Finally, the court held:
Allowing chaplains to sit on chaplain selection boards does not create a de jure denominational preference and does not create excessive entanglement.
Friday, October 30, 2020
European Court Rules On Jehovah's Witness Right To Payment For Surgery Without Blood Transfusion
In A. v. Veselības ministrija, (Eur. Ct. Justice, Oct. 29, 2020), the European Court of Justice instructed a Latvian court on the criteria to apply in a case in which a Jehovah's Witness child living in Latvia needed heart surgery, but the family had religious objections to blood transfusions. The operation was available in Poland, but not in Latvia, without a transfusion. Latvia's health service refused to pay for the procedure to be done in Poland. The family claims that this amounts to illegal discrimination based on religion. The court concluded:
Article 8(5) and (6)(d) of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare, read in the light of Article 21(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a patient’s Member State of affiliation from refusing to grant that patient the authorisation provided for in Article 8(1) of that directive, where hospital care, the medical effectiveness of which is not contested, is available in that Member State, although the method of treatment used is contrary to that patient’s religious beliefs, unless that refusal is objectively justified by a legitimate aim relating to maintaining treatment capacity or medical competence, and is an appropriate and necessary means of achieving that aim, which it is for the referring court to determine.
Courthouse News Service reports on the decision.
Monday, October 05, 2020
Satanic Temple Sues Ad Agency For Refusing Abortion Billboards [UPDATED]
The Satanic Temple ("TST") announced last week that it has filed suit against Lamar Billboard Company for religious discrimination and breach of contract after the company refused to put up billboards promoting The Satanic Temple's "religious abortion ritual." TST said in part:
Sincere performance of this ritual exempts members from complying with many state regulations, such as mandatory waiting periods and compulsory counseling, that are not medically necessary and violate TST's religious beliefs.
TST wanted to place billboards near eight crisis pregnancy centers in Arkansas and Louisiana. TST puzzlingly said:
TST claims that Lamar's actions violate the Accounting and Corporate Regulatory Authority's (ACRA's) nationally-applicable laws that prohibit religious discrimination.
ACRA appears to be an agency of the government of Singapore.
UPDATE: Here is the full text of the complaint in The Satanic Temple, Inc. v. Lamar Advertising of Louisiana, LLC, (AR Cir. Ct., filed 9/27/2020). The complaint alleges, among other things, violation of the Arkansas Civil Rights Act, abbreviated ACRA. Whoever wrote TST's press release apparently Googled ACRA and came up with Accounting and Corporate Regulatory Authority. [Thanks to Eugene Volokh via Religionlaw for access to the complaint.]
Friday, September 18, 2020
EEOC Sues Over Failure To Accommodate Seventh Day Adventist
The EEOC announced this week that it has filed a Title VII lawsuit against Texas-based Frito-Lay, Inc. for failing to accommodate the religious needs of a Seventh Day Adventist employee working in Florida. The Commission explained:
[A] West Palm Beach Frito-Lay warehouse employee applied for and received a promotion to route sales representative. The employee completed approximately five weeks of training without having to train on Saturdays. However, despite learning he could not work on Saturdays because of his Seventh-day Adventist religious beliefs, Frito-Lay scheduled him to train on Saturdays and terminated him after he failed to report to training on two consecutive Saturdays.
Wednesday, September 16, 2020
EEOC Sues On Behalf of Employees Who Refuse To Wear Company Aprons That Contain Rainbow Emblem
The EEOC announced yesterday that it has filed suit against a Conway, Arkansas Kroger store charging that it violated Title VII when it disciplined and then discharged two women employees who refused to wear Kroger aprons that display a rainbow-colored heart emblem. The women believe that the apron endorses LGBTQ values and that wearing it violates their religious beliefs. Kroger refused the women's offers to wear other aprons or to cover the emblem.
Thursday, August 20, 2020
McDonald's Franchisee Settles EEOC Religious Discrimination Suit
The EEOC announced yesterday that an Orlando, Florida McDonald's franchisee has settled a religious discrimination lawsuit filed against it by the EEOC. The restaurant refused to hire a Jewish applicant as a part-time maintenance worker because the applicant would not shave his beard. It refused to create an accommodation to its policy that all employees must be completely clean shaven, even though the applicant offered to wear his beard in a net. A 2½ year consent decree gives damages of $69,555 to the applicant and requires the franchisee to change its grooming policies, conduct anti-discrimination training and take other compliance steps.
Thursday, June 18, 2020
Cert. Petition Filed In Title VII Reasonable Accommodation Case
Whether Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977), which stated that employers suffer an “undue hardship” in accommodating an employee’s religious exercise whenever doing so would require them “to bear more than a de minimis cost,” misinterprets § 2000e(j) and should be overruled.[Thanks to Jim Sonne for the lead.]
Wednesday, February 26, 2020
Religious Discrimination Suit Dismissed As Moot
This case arises from a state agency’s regional manager’s mistaken view that agency policy prohibited employees from discussing religion at work or posting church-related materials on an office bulletin board. After the mistake came to light as a result of this lawsuit, the agency issued an unequivocal correction. Employees of the regional office now may discuss religion and post church-related materials on the bulletin board. Following a bench trial, this opinion holds moot the plaintiff employee’s challenge to the manager’s now-abandoned position.
Thursday, February 20, 2020
Jewish School Sues Town For Religious Discrimination
In early January 2019, in reaction to ABY’s pending permit application following its entry into a contract for the purchase of the Property, Clarkstown Supervisor George Hoehmann, other Clarkstown officials and members of a Rockland County political party, members of CUPON, and CUPON’s counsel met to concoct a plan to prevent ABY’s purchase of the Property.
... In parallel to the manufactured public pressure from CUPON, the Town denied ABY’s permit application through a blatant misapplication of its zoning laws....
Following its knowing interference with and evisceration of ABY’s contract topurchase the Property and months of delay, the Town purchased the Property for itself. For the Town, this is but the latest example in a demonstrable pattern of wreaking havoc on religious property applicants to prevent their engagement in the Clarkstown community.Lower Hudson News reports on the lawsuit.
Sunday, February 02, 2020
Orthodox Jewish Family Ejected From Flight Sue American Airlines
Friday, January 31, 2020
Recent Hearings By House Foreign Affairs Committee
- Ending Global Religious Persecution (Jan. 28, 2020) Video of full hearing. Further coverage at Blog from the Capital.
- Resisting Anti-Semitism and Xenophobia in Europe (Jan. 29, 2020). Video of full hearing.
Friday, January 17, 2020
Online Site Has Immunity In Banning Conversion Therapy Videos
New Federal Proposals On Grants To Religious Entities, Campus Speech and Guidance on School Prayer
The Department of Education issued a 203-page Notice of Proposed Rulemaking (full text) which proposes rule changes to prevent discrimination against faith-based entities receiving federal grants and to protect free speech on campuses. DOE and the Department of Justice also issued revised Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools (full text).
The Department of Justice issued a 29-page Notice of Proposed Rulemaking (full text) on Equal Participation of Faith-Based Organizations in Department of Justice’s Programs and Activities. Among the changes described in the Notice is one which:
delet[es] the requirement that faith-based social service providers refer beneficiaries objecting to receiving services from them to an alternative provider and the requirement that faith-based organizations provide notices that are not required of secular organizations.Finally, the Office of Management and Budget issued a 2-page Memorandum providing guidance as to federal grants. (full text). It reads in part:
Even when no Federal regulation or grant term penalizes or disqualifies grant applicants from participation based on their religious character, some state laws governing awards to subgrantees, including state constitutions, may purport to limit sub-grantee participation in violation of the U.S. Constitution. In attempting to comply with such state constitutions and laws, grantees may be discriminating against applicants for sub-grants on the basis of religion, in violation of the Constitution's Free Exercise Clause and the grantee's commitment to adhere to Federal laws prohibiting discrimination under 2 C.F.R. § 200.300. Accordingly, grant awarding agencies shall ensure that the terms of the Federal grants they award make clear that states or other public grantees may not condition sub-awards of Federal grant money in a manner that would disadvantage grant applicants based on their religious character.USA Today reports on these developments.
Wednesday, January 15, 2020
No Action Under Color of Law In Refusing To Rent Meeting Space To Speaker
The court will grant the Center’s and [its former executive director] Chirlin’s motion to dismiss because the complaint does not plausibly allege that the Center and Chirlin were acting under color of state law, as § 1983 requires, or that the City was involved in the alleged conspiracy, as § 1985(3) requires. Although a symbiotic relationship existed to some degree between the Center and the City, this case is distinguishable from Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), upon which the Club relies....
Friday, January 10, 2020
Teacher Can Pursue Title VII Claims In Dispute Over Transgender Student Policy
Sunday, December 22, 2019
2nd Circuit: Rabbinical College Prevails In Part of Its Zoning Law Challenge
TRC and future students and faculty (collectively, “Tartikov”) filed this action against the Village and its board of trustees seeking to declare unconstitutional the two amendments enacted after its plans became known. In addition, it challenged two other amendments that had been passed earlier. After a bench trial, the district court found that all four zoning law amendments were tainted by religious animus, enjoined their enforcement, and entered a broad injunction sweeping away or modifying for these plaintiffs New York State and local laws that otherwise would apply. The Village challenges the decision below. Its central contention is that the findings of religious animus were clearly erroneous. Tartikov cross appeals from a number of pretrialrulings that limited the scope of its claims.
After careful consideration of the extensive record, we decline to overturn the district court’s findings that religious animus motivated the two zoning amendments passed after the plaintiffs’ wishes became known and thus affirm the injunction barring their enforcement. But we respectfully conclude that there was insufficient evidence to support such a finding as to either of the two earlier zoning amendments and therefore reverse that portion of the judgment. We conclude also that the injunctive relief went further than was appropriate and modify those aspects of the judgment as well. We affirm as to the cross-appeal.
Friday, December 06, 2019
3rd Circuit Affirms Dismissal of Title VII Religious Discrimination Suit
[Plaintiff] states that he wore a cross on a chain around his neck, that he read the bible on breaks, that he spoke openly about attending church services, and that he was employed at Temple for a lengthy period of time. But none of the evidence he produced is sufficient to reasonably infer that his coworkers knew his Baptist identity. More important, none of it relates directly to the person, Thomas Johnston, who terminated his employment. He does not proffer any evidence to show that Johnston knew of his religious affiliation.Penn Live reports on the decision.
Friday, November 29, 2019
British Court Enjoins Protests Against School's LGBT Curriculum
The case has been pleaded and argued in various ways, but at its heart is the argument that the School’s teaching policy – described by the defendants as “the teaching of LGBT issues (ie teaching equalities)” – represents or involves unlawful discrimination against British Pakistani Muslim children at the School, and those with parental responsibility for them ... on grounds of race and/or religion. It is submitted that the core religious, philosophical and cultural values of this group “are centred on heterosexual relationships in marriage; this state of belief does not encompass same sex relationships”. ....The court held that the Equality Act 2010 excludes from its coverage anything done in connection with the content of curriculum. In any event, the court concluded:
The teaching has been misunderstood and misinterpreted by the defendants, and misrepresented, sometimes grossly misrepresented, in the course of the protests. The matters that have actually been taught are limited, and lawful.The court went on:
The evidence – including but not limited to the expert evidence - persuades me that the levels of noise generated by this way of protesting is clearly excessive, amounting to an intrusion into the lives of those at the School and its neighbours that goes well beyond anything that could be justified as proportionate to the aims of persuasion.The court held, however, that an earlier injunction banning the use of social media by protesters should be lifted, saying in part:
The speech with which I am here concerned has been expressed in the context of a private, or limited, WhatsApp group. It was not aimed at the teachers, in the sense that they were intended to read it. It has come to their attention only as a result of disclosures made by one or more members of that group. The scale, frequency, nature and impact of the abuse to date, given its context, do not give rise to a sufficiently compelling case for interference.The court also issued a summary of the decision. The British publication Conservative Women published an article highly critical of the decision.
Thursday, November 28, 2019
Muslim Woman Sues Theater Over Pepperoni Pizza
... [Plaintiff claims] she ordered a cheese pizza at a Redondo Beach theater in 2017 and instead was given pepperoni pizza, which she accidentally ate a portion of in the dark auditorium, violating her religious laws against consuming pork.
Kiara Rivers is suing American Multi-Cinema Inc., alleging religious discrimination, battery, intentional and negligent infliction of emotional distress and negligence....
"As a devout Muslim, (Rivers) considers the consumption of pork a violation of her duties as a Muslim and detrimental to her spiritual purity to the point that nothing can be done to restore her spiritual integrity," the suit states.