In Contempt Sanction, Court Orders Attorneys To Attend Religious Liberty Training

In Carter v. Transport Workers of America, Local 556, (ND TX, Aug.7, 2023), a Texas federal district court ordered sanctions against Southwest Airlines for its failing to comply with an earlier Order in the case that found the Airline had violated Title VII when it fired a flight attendant because of  her social media messages about her religiously-motivated views on abortion. Southwest claimed that the flight attendant had violated the company's social media policy regarding civility. In its current Order, The court set out a specifically worded communication that the Airline is required to send to its flight attendants regarding its obligation under Title VII not to engage in religious discrimination. The court also ordered that three of the Airline's attorneys who were responsible for non-compliance with the earlier Order attend at least 8 hours of religious liberty training conducted by the Christian legal non-profit Alliance Defending Freedom. The court explained, in part:

When a litigant “does not appear to comprehend” a legal concept, training in “the relevant subject area” constitutes a “particularly apropos” sanction.

[Thanks to Joel Taubman for the lead.]

Australian State's Ban on Kirpan in Schools Is Invalid

 In Athwal v. State of Queensland, (Queensland Sup. Ct., Aug. 1, 2023), a 3-judge panel of the Supreme Court of the Australian state of Queensland held invalid a provision in the Weapons Act that specifically provides carrying a knife for religious purposes is not one of the exceptions to the ban on possessing a knife in a school. The court concluded that the provision, which has the effect of barring Sikhs from wearing a kirpan, in a school, is inconsistent with a provision of the national Commonwealth Racial Discrimination Act. Justice Dalton filed a concurring opinion. New Indian Express reports on the decision.

9th Circuit: Fire Chief's Dismissal Was Not Motivated by Religious Discrimination

In Hittle v. City of Stockton, California, (9th Cir., Aug. 4, 2023), the U.S. 9th Circuit Court of Appeals affirmed a district court's dismissal of a religious discrimination suit under Title VII and the California Fair Employment and Housing Act brought by the city's former Fire Chief.  Among the several reasons given to plaintiff by the city for his dismissal was his attendance at a religious leadership event on city time and with use of a city vehicle, and his approval for three other Department employees to also attend. The city had also received anonymous complaints that plaintiff gave favored treatment to other employees who were part of his Christian coalition. The court said in part:

Hittle must demonstrate that his religion was “a motivating factor” in Defendants’ decision to fire him with respect to his federal claims, ..., and that his religion was “a substantial motivating factor” for his firing with respect to his FEHA claims....

[B]ecause neither Montes nor Deis made any remarks demonstrating their own hostility to religion, but focused on the Summit’s lack of benefit to the City and other evidence of Hittle’s misconduct, Hittle failed to demonstrate that hostility to religion was even a motivating factor in his termination....

... [B]ased on the record before us, the district court’s granting of summary judgment in Defendants’ favor was appropriate where Defendants’ legitimate, non-discriminatory reasons for firing Hittle were, in sum, sufficient to rebut Hittle’s evidence of discrimination, and Hittle has failed to persuasively argue that these non-discriminatory reasons were pretextual.

In a press release, First Liberty Institute said it would seek review of the 9th Circuit panel's decision.

9th Circuit Hears Oral Arguments on Fire Chief's Religious Discrimination Claim

On Monday, the U.S. Court of Appeals for the 9th Circuit heard oral arguments in Hittle v. City of Stockton (video of full oral arguments). In the case (full text of district court opinion), a California federal district court rejected religious discrimination and retaliation claims brought by Ronald Hittle, Stockton, California's former Fire Chief. He was fired in part for attending a two-day religious "Global Leadership Summit" with three other city employees on city time and using a city vehicle. First Liberty issued a press release on the oral arguments.

European Court Says Russian Regulation of Proselytizing Violated Human Rights Convention

In Ossewaarde v. Russia, (ECHR, March 7, 2023), the European Court of Human Rights held that legal restrictions imposed by Russia in 2016 on religious proselytizing violated the rights of a Baptist pastor who was a U.S. national living in Russia.  The court found violations of Articles 9 (freedom religion) and 14 (prohibition of discrimination) of the European Convention on Human Rights.  The court said in part:

By requiring prior authorisation from a duly constituted religious association and excluding private homes from the list of places where the right to impart information about religion may be exercised, the new regulation has left no room for people in the applicant’s situation who were engaged in individual evangelism. The requirement of prior authorisation also eliminated the possibility of spontaneous religious discussion among members and non-members of one’s religion and burdened religious expression with restrictions greater than those applicable to other types of expression.

...  [S]o long as the new restrictions did not regulate the content of the religious expression or the manner of its delivery, they were not fit to protect society from “hate speech” or to shield vulnerable persons from improper methods of proselytism which ... could have been legitimate aims for the regulation of missionary activities.... [T]he Court finds that the need for such new restrictions, in respect of which the applicant was sanctioned for non-compliance, has not been convincingly established. Accordingly, the interference with the applicant’s right to freedom of religion on account of his missionary activities has not been shown to pursue any “pressing social need”....

While the application of the additional penalty of expulsion exclusively to non-nationals may be objectively justified by the fact that it cannot be applied to nationals, the Court finds no justification for the considerably higher minimum fines applicable to non‑nationals in respect of the same offence. The difference in treatment also appears hard to reconcile with the provisions of Russia’s Religions Act which posits that non-nationals lawfully present in Russia may exercise the right to freedom of religion on the same conditions as Russian nationals.

The court also issued a press release summarizing the decision.

6th Circuit: Muslim-Owned Company Adequately Alleged Religious and National Origin Discrimination

In Speed Way Transportation, LLC v. City of Gahanna, Ohio, (6th Cir., March 1, 2023), the U.S. 6th Circuit Court of Appeals held 2-1 that a towing company adequately alleged an equal protection claim. Plaintiffs claimed religious and national origin discrimination in the city's rejection of their bid for a three-year towing contract.  The court said in part:

Plaintiffs allege that no other business—let alone any other towing business—in the City of Gahanna, including the comparator firms Broad & James and Cal’s Towing, is owned, and operated by individuals of Egyptian national origin and Muslim faith.

Plaintiffs also sufficiently allege that they were treated differently than the two comparator firms.

Judge Suhrheinrich filed a dissenting opinion.

All 3 judges on the panel agreed that plaintiffs' other 1st and 14th Amendment claims were properly dismissed by the district court. The majority opinion said in part:

Plaintiffs have failed to allege that they engaged in “conduct”—a specific exercise of their religion—that the Free Exercise Clause protects. Lacking an allegation of “protected conduct,” the Plaintiffs cannot state a First Amendment retaliation claim based on the exercise of rights protected by the Free Exercise clause... The district court did not err in dismissing this count.

Suit Says Sheriff's Office Pressures Employees to Join Favored Church

Suit was filed this week in a Washington federal district court by an ex-deputy sheriff who alleges that Chelan County (WA) Sheriff's Office employees pressured him to join the "'alt-right' militant" Grace City Church and to attend its 12-week marriage counseling program. The complaint (full text) in Shepard v. Chelan County, (ED WA, filed 2/14/2023), alleges in part:

Defendant Chelan County Sheriff's Department targeted law enforcement officers who are not Grace City Church members by disciplining, terminating, and denying advancement to them for alleged internal Chelan County Sheriff's Office policy violations by arbitrarily enforcing certain policies against those employees and officers for the same conduct they allow, promote, or engage in themselves.

The suit alleges violation of Title VII, the Washington Law Against Discrimination and the Establishment Clause. NCWLIFE reports on the lawsuit.

Prof Sues Hamline University in Dispute Over Muslim Art Slides Shown in Art History Course

A great deal of national attention has been focused on the dispute at Hamline University over the school's refusal to renew the contract of adjunct Art History faculty member Erika Lopez Prater. A Muslim student (who was also president of the Muslim Student Association) complained to University administrators that in an online class on Islamic art Prater displayed slides of two classic paintings of the Prophet Muhammad. Because of the complaint, the University informed Prater that the class she had been scheduled to teach the following semester has been cancelled. Last week, Prater filed suit against the University in a Minnesota trial court.  The complaint (full text) in Prater v. Trustees of Hamline University of Minnesota, (MN Dist. Ct., filed 1/17/2023) alleges religious discrimination, defamation, breach of contract as well as several other causes of action.  It alleges in part:

Instead of recognizing that López Prater had displayed the images of the Prophet Muhammad for a proper academic purpose, Hamline decided to impose [the Muslim student's] interpretation of Islam on all Hamline employees and students....

[University Vice President]  Everett engaged in libel on Hamline’s behalf, publicly defaming López Prater via email to all Hamline employees and students. The email ... states in relevant part:

Several weeks ago, Hamline administration was made aware of an incident that occurred in an online class. Certain actions taken in that class were undeniably inconsiderate, disrespectful and Islamophobic....

In a January 13 statement, the University released a statement saying in part:

In the interest of hearing from and supporting our Muslim students, language was used that does not reflect our sentiments on academic freedom. Based on all that we have learned, we have determined that our usage of the term “Islamophobic” was therefore flawed. We strongly support academic freedom for all members of the Hamline community. We also believe that academic freedom and support for students can and should co-exist. How this duality is exemplified on our campuses, especially in the current multicultural environment in which we live, is an exciting, robust, and honest conversation for academics, intellectuals, students, and the public to have.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Alabama Executive Order Protects Religious Freedom of Licensees, Grantees, Employees and Others

 Alabama Governor Kay Ivey has issued Executive Order No. 733 (Jan. 20, 2023) requiring the executive branch of state government to enforce the Alabama Religious Freedom Amendment to the greatest extent practicable.  The Order sets out specific religious freedom protections for state licensees, contractors, grant recipients, recipients of government benefits and state employees. Among other non-discrimination and free exercise protections, the Order provides:

A state executive-branch agency shall protect the religious-exercise rights of current or prospective licensees (i.e., any person or entity authorized or seeking to be authorized to engage in any profession, trade, business, or activity that requires state government licensure, certification, permitting, chartering, or other formal permission)...

The agency shall not require a current or prospective contractor or grant recipient to alter aspects of its religious character as a condition of receiving or maintaining a contract or grant unless strictly necessary to further a compelling governmental interest.

The state issued a press release announcing the signing of the Executive Order.

Federal Agencies Propose Rule Changes to Protect Beneficiaries of Federal Grants from Religious Discrimination

On January 13, nine federal agencies published a Notice of Proposed Rulemaking (full text) in the Federal Register eliminating certain changes made in 2020 by the Trump Administration that loosened restrictions on faith-based organizations' operation of programs and activities funded by federal grants. (See prior posting.) The proposed new rules revert largely to the 2016 version of the agencies' rules. The Notice of Proposed Rulemaking says in part:

[B]oth the 2016 Rule and the 2020 Rule contained provisions prohibiting providers from discriminating against a program beneficiary or prospective beneficiary “on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice.” ... 

The 2016 Rule required that, in programs supported by direct Federal financial assistance, beneficiaries and potential beneficiaries also be made aware of these prohibitions on discrimination, but the 2020 Rule removed this notice requirement.

Because the purpose of making providers aware of nondiscrimination requirements is to ensure that beneficiaries can access services free from discrimination, ... all Agencies except USAID therefore propose to reinstate the requirement that organizations providing social services under Agencies’ direct Federal financial assistance programs give written notice to beneficiaries and prospective beneficiaries of certain nondiscrimination protections, and to apply this requirement to all such providers, whether they are faith-based or secular. The Agencies may, as appropriate, require providers to include this notice as part of a broader and more general notice of nondiscrimination on additional grounds.

The 2016 Rule also required the notification to beneficiaries to inform them that, if they were to object to the religious nature of a given provider, the provider would be required to make reasonable efforts to refer them to an alternative provider. The 2020 Rule eliminated that requirement. The Agencies believe, however, that providing assistance to beneficiaries seeking alternative providers would help advance the overarching goal of facilitating access to federally funded programs and services. Without such assistance, it may be challenging for beneficiaries or prospective beneficiaries unfamiliar with Federal grant programs to identify other federally funded providers....

Therefore, with the exception of USAID, the Agencies are proposing a modified version of the 2016 Rule’s referral procedure that would encourage Agencies, when appropriate and feasible, or State agencies and other entities that might be administering a federally funded social service program, to provide notice to beneficiaries or prospective beneficiaries about how to obtain information about other available federally funded service providers.

Finally, with the exception of USAID, the Agencies are proposing to remove language added by the 2020 Rule stating that providers at which beneficiaries choose to expend indirect aid “may require attendance at all activities that are fundamental to the program.”

BJC Online reports on the rule proposals.

Christian School Teacher Fired for Acceptance of LGBT Students Files Suit

Suit was filed this week in an Arizona federal district court by Adam McDorman, an English teacher who was fired by Valley Christian School for urging the school's principal, Josh LeSage, to show acceptance and understanding of a student who identifies as pansexual.  The complaint (full text) in McDorman v. Valley Christian Schools, (D AZ, filed 12/27/2022), alleges in part:

15. McDorman’s Christian faith and beliefs include acceptance and equality for all LGBT persons and do not tolerate discrimination or hostility against them....

19.  On November 1, 2021, during a staff meeting at which McDorman was present, LeSage said that all of VCS staff should have the same religious belief in the sinfulness of LGBT sexual orientation, and that anyone who did not agree was like a cancer that needed to be removed from the (VCS) organization....

The complaint alleges that McDorman's firing amounted to religious discrimination and retaliation for opposing discriminatory practices in violation of provisions of Title VII and Title IX. AZFamily News reports on the lawsuit.

Rejection of Foster Parent Applicants Over Their Views on Homosexuality Violates Australian Equal Opportunity Law

In Hordyk v. Wanslea Family Services, Inc., (WA SAT, Dec. 23, 2022), the State Administrative Tribunal of Western Australia held that a non-profit family services agency that contracts with the state to arrange foster care for children placed in custody of the state violated Section 62 of the Western Australia Equal Opportunity Act 1984 when it rejected a couple who are members of the Free Reformed Church of Australia as foster parents. According to the court:

4, During the assessment process, the Hordyks revealed, in answer to specific questions asked of them, that they held the view that the Seventh Commandment in the Old Testament of the Bible requires sexual relationships to take place only between a man and woman who are married and that other expressions of human sexuality are sinful. The Hordyks believe that same-sex relationships are sinful and that people who feel same-sex attraction must fight the sin in order to live in conformity with the Commandments. They informed Wanslea that, as a result of their beliefs, in the event that a foster child who had been placed in their care was found kissing a child of the same sex at school, they would tell the child that they were loved but that the behaviour was sinful and needed to be resisted. The Hordyks said they would have to end the placement of a foster child who continued to behave in that way. They qualified that statement by saying that they would not terminate the placement immediately but could not foster that child in the long term.

5.  Following the Hordyks' expression of those views, Wanslea's staff decided not to proceed to a final assessment of the Hordyks' application and instead terminated the assessment process....

Law and Religion Australia reports at greater length on the decision.

State Religious Discrimination Claims Against Airline Union Are Pre-empted By Federal Law

In Brown v. Alaska Airlines, Inc., (WD WA, Nov. 23, 2022), a Washington federal district court dismissed state-law religious discrimination claims brought against the flight attendants' union by two of its members.  Alaska Airlines fired plaintiffs because they posted comments on the company's internal intranet opposing the Airline's support for a federal statute that would add sexual orientation and gender identity to federal anti-discrimination laws. Plaintiffs claimed their comments were grounded in their religious beliefs. The Union unsuccessfully represented the flight attendants at a hearing appealing their termination.  Plaintiffs then sued claiming not only that Alaska Airlines discriminated against them because of their Christian faith, but that the Union did not defend them as vigorously as it defends other flight attendants because of the flight attendants' religious beliefs. The court dismissed the flight attendants' claims against the Union that were brought under Washington and Oregon anti-discrimination laws.  It concluded that that the "duty of fair representation" stemming from provisions of the federal Railway Labor Act pre-empts claims brought under state anti-discrimination laws where the charge is that a union did not adequately represent an employee in the grievance process.

Football Coach Sues After Being Fired for Religious Refusal of Covid Vaccine

Suit was filed last week by the former head football coach for Washington State University who was fired after refusing on religious grounds to comply with the state's Covid vaccine mandate for state employees. The Athletic Department refused to grant him a religious accommodation, questioning the sincerity of his religious objections as well as the University's ability to accommodate his objections. The complaint (full text) in Rolovich v. Washington State University, (WA Super. Ct., filed 11/14/2022), alleges that the coach's firing amounts to religious discrimination in violation of state and federal law and infringement of plaintiff's free exercise and due process rights. Campus Reform reports on the lawsuit.

Religious Children's Home Lacks Standing To Challenge Now-Defunct HHS Non-Discrimination Rule

 In Holston United Methodist Home for Children, Inc. v. Becerra, (ED TN, Nov. 18, 2022), a Tennessee federal district court held that a religiously affiliated children's home that places children for foster care or adoption lacks standing to challenge a 2016 anti-discrimination rule promulgated by the Department of Health and Human Services. According to the court:

Holston Home requires prospective foster and adoptive parents to affirm a Christian statement of faith and beliefs before they can engage in child-placement activities.... Further, Holston Home does not place children with foster or adoptive parents who are in same-sex relationships or unmarried couples of any biological sex who are romantically cohabitating....

While the challenged rule, promulgated at the end of the Obama Administration, barred such restrictions, HHS policy had undergone successive changes in the Trump and Biden Administrations. These are traced at length in the court's 22-page opinion. In particular the court noted:

Although HHS had not enforced the 2016 Grants Rule since it became effective, on November 19, 2019, HHS published a formal notification in the Federal Register to inform the public that it would not enforce the 2016 Grants Rule after determining that the rulemaking raised “significant concerns about compliance with the Regulatory Flexibility Act [‘RFA’].”...

Because the 2016 Grants Rule is, for all intents and purposes, defunct pursuant to the Notification of Nonenforcement, Holston Home faces no credible threat of prosecution.... Having also failed to show any history of past enforcement of the 2016 Grants Rule, enforcement warning letters, or a feature of the regulation making it easier or more likely to be enforced, Holston Home lacks standing to bring this lawsuit.

Results From Election Day on Ballot Issues of Interest

Here are Tuesday's vote results for the ten ballot issues of interest to those following law and religion developments.  More details and updated information are available at Ballotpedia.

Arkansas Issue 3: Constitutional amendment that would provide "government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability." Losing 49.56%- 50.44% with 97% of precincts reporting.

California Proposition 1: Right to Reproductive Freedom Amendment. Passed 65%- 35%.

Colorado Amendment F: Constitutional amendment to allow operators of charitable gaming activities to be paid and authorize the legislature to determine how long an organization must exist to obtain a charitable gaming license. Defeated 39%- 61%.

Kentucky Constitutional Amendment 2:  Amendment to the Kentucky Constitution to provide that nothing in the state constitution creates a right to abortion or requires government funding for abortion. Defeated 48%- 52%.

Michigan Proposal 3: Constitutional amendment to provide a right to reproductive freedom. Passed 57%- 43%

Montana LR-131: Referendum on statute that states infants born alive at any stage of development are legal persons, and requires medical care for infants born alive after an induced labor, cesarean section, or attempted abortion. Losing 48%- 52% with 85% of precincts reporting.

Nevada Question 1: Constitutional amendment to prohibit the denial or abridgment of rights on account of an individual's race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin. Winning 57%- 43% with 77% of precincts reporting.

Tennessee Constitutional Amendment 4: Amendment to repeal section of the Tennessee Constitution that disqualifies religious ministers from being elected to the state General Assembly. Passed 63%- 37%.

Vermont Proposal 5: Constitution amendment that would protect the right to personal reproductive autonomy and prohibit government infringement unless justified by a compelling state interest. Passed 77%- 23%.

West Virginia Amendment 3: Amendment to remove the state constitution's prohibition on incorporating religious denominations and churches and to authorize the state legislature to pass laws providing for such incorporations. Defeated 45%- 55%.

Suit Challenges Refusal to Grant Religious Exemption from Covid Vaccine Mandate

Suit was filed last week in a New Jersey state trial court by a Behavioral Support Technician at a state-operated group home who was fired after refusing on religious grounds to comply with the facility's Covid vaccine mandate. The facility refused to grant a religious exemption to plaintiff.  The complaint (full text) in Bowleg v. New Jersey Department of Human Services, (NJ Super. Ct., filed 11/3/2022), alleges that the New Jersey Law Against Discrimination was violated by failing to accommodate plaintiff's religious objections, and by wrongful termination and retaliation that constitute religious discrimination. Thomas More Society issued a press release announcing the filing of the lawsuit.

Airline Settles EEOC Suit on Behalf of Buddhist Pilot

The EEOC announced this week that United Airlines has settled a religious discrimination lawsuit filed by the agency on behalf of a Buddhist airline pilot.  According to the EEOC:

[T]he pilot was diagnosed with alcohol dependency and lost the medical certificate issued by the Federal Aviation Administration (FAA). One of the requirements of United’s HIMS program ... to obtain new medical certificates from the FAA is that pilots regularly attend Alcoholics Anonymous (AA). The pilot, who is Buddhist, objected to the religious content of AA and sought to substitute regular attendance at a Buddhism-based peer support group. United refused to accommodate his religious objection and, as a result, the pilot was unable to obtain a new FAA medical certificate permitting him to fly again, the agency charged....

Under the consent decree that resolves the lawsuit, United will pay the pilot $305,000 in back pay and damages and will reinstate him into its HIMS Program while allowing him to attend a non-12-step peer recovery program. The company will also accept religious accommo­dation requests in its HIMS Program going forward, institute a new policy on religious accom­modations, and train its employees.

Ten Issues of Interest Are on Today's Ballots Across the Country

Today voters in ten states will be voting on ballot measures that relate to religious institutions, reproductive rights, clergy, religious freedom or religious and LGBTQ discrimination.  Here are summaries of each measure with links to fuller explanations on Ballotpedia:

Arkansas Issue 3: Constitutional amendment that would provide "government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability."

California Proposition 1: Right to Reproductive Freedom Amendment.

Colorado Amendment F: Constitutional amendment to allow operators of charitable gaming activities to be paid and authorize the legislature to determine how long an organization must exist to obtain a charitable gaming license.

Kentucky Constitutional Amendment 2:  Amendment to the Kentucky Constitution to provide that nothing in the state constitution creates a right to abortion or requires government funding for abortion.

Michigan Proposal 3: Constitutional amendment to provide a right to reproductive freedom.

Montana LR-131: Referendum on statute that states infants born alive at any stage of development are legal persons, and requires medical care for infants born alive after an induced labor, cesarean section, or attempted abortion.

Nevada Question 1: Constitutional amendment to prohibit the denial or abridgment of rights on account of an individual's race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin.

Tennessee Constitutional Amendment 4: Amendment to repeal section of the Tennessee Constitution that disqualifies religious ministers from being elected to the state General Assembly.

Vermont Proposal 5: Constitution amendment that would protect the right to personal reproductive autonomy and prohibit government infringement unless justified by a compelling state interest.

West Virginia Amendment 3: Amendment to remove the state constitution's prohibition on incorporating religious denominations and churches and to authorize the state legislature to pass laws providing for such incorporations.

Actor's Disparate-Impact Religious Discrimination Claim Is Dismissed

 In Dunbar v. Disney, (CD CA, Nov. 3, 2022), a California federal district court dismissed an amended complaint filed by "9-1-1" actor Rockmond Dunbar in his Title VII disparate-impact religious discrimination claim against Walt Disney Company. Dunbar was denied a religious exemption from Disney's Covid vaccine mandate and was fired when he refused to be vaccinated. He claimed that according to beliefs of his Universal Wisdom Church it is a sacrilege to ingest medication, chemicals, or other foreign matters that defy natural law. His disparate impact claim failed originally because he was unable to identify other Universal Wisdom Church members who were similarly impacted. He then amended the complaint to allege that three other employees of other religious denominations were impacted. The court held, however, that this was insufficient to identify a "protected group" that was impacted because the group he points to is identified solely by the existence of the alleged discriminatory business practices. Hollywood Reporter reports on the decision.