California Settles Suit Over Aztec Prayer In Ethnic Studies Curriculum

A Settlement Agreement (full text) was reached last week (Jan. 13) with the California Department of Education in a suit that had been filed (see prior posting) challenging a prayer to Aztec gods that was in included in the state's Ethnic Studies Model Curriculum. According to an announcement of the agreement by the Thomas More Society:

As a result of the settlement, that the California Department of Education will promptly remove prayers (also labeled as chants or affirmations) from the Aztec and Yoruba (or Ashe) religions from the state-approved curriculum and will issue a public notice of such to all California school districts, charter schools and county offices of education. The department, along with the State Board of Education, also agreed not to encourage the use of the two challenged chants in California public schools.

NY City Council Member Loses Claim This His Expulsion Was Because Of Hostility To His Christian Anti-LGBT Views

In King v. City of New York, (SD NY, Jan. 14, 2022), a New York federal district court rejected a group of 1st and 14th Amendment, as well as state law, challenges by former New York City Council member Andy King to his expulsion from City Council.  He was removed from Council because of alleged ethical misconduct. However King claims that the true motivation of the Council members who voted to expel him was their dissatisfaction with his routine opposition to pro-LGBT issues stemming from his Christian beliefs that sex between members of the same sex is a sin. The court rejected both his free speech and free exercise claims.  Discussing King's free exercise claims, the court said in part:

In support of his Free Exercise claim, King relies on the same factual allegations as those that buttress his Free Speech claim-- namely, Defendants' hostility toward his political views on LGBT issues. But these allegations do not raise the plausible inference that Defendants acted out of hostility against King on the basis of his Christian faith.

Recent Articles of Interest

 From SSRN:

• Cyra Akila Choudhury, Racecraft and Idntity in the Emergence of Islam as Race, (January 6, 2022).
• Vivencio Ballano, Law, Morality, and Catholic Social Teaching on Family Living Wage: Analyzing the Adequacy and Morality of the Minimum Wage in the Philippines, (Cogent Social Sciences, 8:1 (2022).
• Noah Kane, Treat Thy Neighbor as Thyself? Equal Protection and the Scope of RLUIPA's Equal Terms Clause, (Cardozo Law Review, Vol. 43, No. 2, 2022).
• Shlomo Pill, Freedom to Sin: A Jewish Jurisprudence of Religious Free Exercise, (Regent University Law Review, Vol. 34, No. 1, 2021-2022).
• David Abraham, Group Rights and Individual Minority Rights in Immigrant Societies, then and Now, (November 15, 2021).
• Justin Aimonetti, Derivative Immunity as Savior from State Actor Status, (34 Regent University Law Review 107 (2021)).

From SmartCILP:

• Matthew J. Stanford, Practical Piety: Divining Religion's Role in Reproductive Policymaking, [Abstract], 39 Boston University International Law Journal 1-40 (2021)).
• Symposium: Jewish Law in Comparative Context, Touro Law Review, Vol. 36, Issue 4 (2021).
• Adena Berkowitz, My Body, My Choice: Biblical, Rabbinic, and Contemporary Halakhic Responses to Abortion, 37 Touro Law Review 1133 (2021).
• Yehiel Kaplan, Mercy in American Law: The Promise of the Adoption of the Outlook of Jewish Law, 37 Touro Law Review 1193 (2021).

Split En Banc 9th Circuit Denies Review of Refusal To Enjoin School Vaccine Mandate that Lacks Religious Exemption

The U.S. 9th Circuit Court of Appeals has denied en banc  reconsideration of the refusal to enjoin, pending appeal, a school district's COVID vaccine mandate that does not provide for religious exemptions. In Doe v. San Diego Unified School District, (9th Cir., Jan. 14, 2022), the court denied en banc review of the panel's decision, with various judges filing opinions dissenting from, or concurring with, the denial. Judge Bumatay, in a 21-page opinion joined by six other judges (and concurred in by one judge with senior status), dissented, saying in part:

Simply put, the District can’t have it both ways by allowing secular exemptions but prohibiting religious ones. If the District offers any secular vaccine exemption with a similar risk profile to a religious exemption, it must satisfy strict scrutiny to exclude a religious exemption. The Constitution forbids the District from picking and choosing its preferred secular exemptions while disfavoring religious exemptions. And this remains true in times of crisis.

Judges Berzon and Bennett filed an opinion concurring in the denial of reconsideration which offered rebuttals to each point made by Judge Bumatay in his dissent. Judge Bress, joined by Judge Bade, and Judge Forrest filed a briefer dissenting opinions as well.

Ecclesiastical Abstention Doctrine Bars Adjudication Of Some Claims In Dispute Between Church Factions

In In re Thomas, (TX App., Jan.14, 2022), Jan. 14, 2022), a Texas state appellate court ruled on the extent to which the ecclesiastical abstention doctrine bars various claims in a dispute between two factions in a Baptist church over who should be its pastor and which faction controls its large bank account. The court held that the ecclesiastical abstention doctrine bars civil courts from ruling on the deacons' authority to terminate the church's pastor and on whether one group is obligated to relinquish control over the church's financial records and bank account. However, the ecclesiastical abstention doctrine did not necessarily bar adjudication of claims for breach of fiduciary duty, conversion of church funds and access to the church's books, records and bank statements.

Supreme Court Grants Review In Case Of Football Coach's Praying At 50-Yard Line

Yesterday the U.S. Supreme Court granted certiorari in Kennedy v. Bremerton School District, (Docket No. 21-418, cert. granted, 1/14/2022). (Order List.)  In the widely followed case, the U.S. 9th Circuit Court of Appeals upheld a high school's actions against a football coach who insisted on prominently praying at the 50-yard line immediately after football games. The coach was placed on paid administrative leave and given negative performance reviews. He did not reapply to coach the following year. A divided 9th Circuit denied en banc review. (See prior posting.) SCOTUS blog reports on the Supreme Court's grant of review. [Corrected. An earlier version of this post inaccurately stated that the coach was "fired".]

Air Force Officer Sues After Accommodation For Religious Objection To COVID Vaccine Is Denied

Suit was filed last week in a Georgia federal district court by a female Air Force officer who has served in the military for 25 years and who was forced into retirement when she refused for religious reasons to take any of the current COVID vaccines.  Her request for a religious accommodation was denied.  The complaint (full text) in Air Force Officer v. Austin, (MD GA, filed 1/6/2022), alleges in part:

52. As a Christian, Plaintiff believes that abortion is a grave evil and contrary to her faith.

53. Plaintiff sincerely believes that receiving a vaccine that was derived from or tested on aborted fetal tissue in its development would violate her conscience and is contrary to her faith....

55. In addition, in accordance with her faith, Plaintiff believes that her “body is the temple of the Holy Spirit” (1 Cor. 6:19-20), and that injection with a novel substance of unknown long-term effects would violate this belief.

Plaintiff claims that the Air Force's actions violate RFRA and the 1st Amendment. Thomas More Society issued a press release announcing the filing of the lawsuit. 

Challenge to Louisiana COVID Worship Restrictions Dismissed As Moot

In Spell v. Edwards, (MD LA, Jan. 12, 2022), a Louisiana federal district court, on remand from the 5th Circuit, again dismissed a challenge to a now expired COVID Order limiting the size of religious gatherings. The court explained:

On July 6, 2021, the U.S. Court of Appeals for the Fifth Circuit vacated this Court’s November 10 dismissal order, and remanded with instructions to reconsider Plaintiffs’ First Amendment Free Exercise Clause claim in light of new guidance from the U.S. Supreme Court, specifically, Roman Catholic Diocese of Brooklyn v. Cuomo, ... South Bay United Pentecostal Church v. Newsom, ... and Tandon v. Newsom....

Now, with the benefit of the Supreme Court’s guidance, the Court reaches the same result as before: Plaintiffs’ consolidated actions will, again, be dismissed. In short, the Supreme Court’s most recent jurisprudence cannot save Plaintiffs’ claims for injunctive relief because the challenged restrictions have expired on their own terms and there is no indication whatsoever that crowd-size limits on indoor assembly will be reinstated. Thus, an injunction is a moot point. Further, Plaintiffs’ demand for damages fails because there is not now, and never has been, a “clearly established” right to unrestricted religious assembly.... Thus, Defendants are shielded from liability by qualified immunity.

RNS reports on the decision.

California Sues Health Care Sharing Ministry For Fraud

California's Attorney General announced yesterday that the state has filed a false statements and fraudulent business practices civil lawsuit against a company purporting to operate as a Health Care Sharing Ministry. The complaint (full text) in State of California v. Aliera Companies, Inc., (CA Super., filed 1/12/2022), alleges in part:

Aliera created and marketed its health insurance products as “health care sharing ministry” (HCSM) plans. HCSMs are nonprofit corporations historically comprised of members of a particular religious community, who contribute money to a shared pool with the understanding that the money would pay for catastrophic or surprise healthcare costs pursuant to the members’ shared religious tenets....

... Aliera ...  advertised that members’ monthly payments would go towards the healthcare costs of other members. To the contrary, Aliera retained as much as 84% of every member payment, leaving around 16 cents of every dollar for member expenses. Aliera arbitrarily rejected member requests for payment of healthcare costs in order to continue retaining these member payments for itself and the individual defendants.

Fourteen states and the District of Columbia, have initiated actions against Aliera for its sale and operation of its purported HCSM plans. This includes the California Department of Insurance, which issued a cease and desist order on or about March 8, 2020.

7th Circuit: Church's Suit Against Rescinded COVID Order Is Moot

In Elim Romanian Pentecostal Church v. Pritzker, (7th Cir., Jan. 11, 2022), the U.S. 7th Circuit Court of Appeals affirmed an Illinois federal district court's denial of an injunction against a now-rescinded COVID order by the Governor of Illinois limiting the number of people who could attend a religious service. The district court based its decision on mootness grounds, even though the 7th Circuit had previously held the case was not moot. The 7th Circuit now said however:

More than 19 months have passed since they were last subject to an attendance limit, and the Governor has not suggested that another is likely.  A legal conclusion that a rescinded order violated the Constitution would not entitle anyone to an injunction....

Connecticut Elimination Of Religious Exemption From School Vaccination Requirement Is Upheld

 In We the Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (D CT, Jan. 11, 2022), a Connecticut federal district court upheld a Connecticut statute that eliminates the religious exemption from the state requirement for vaccinations for school children. Medical exemptions remain in the statute, and students with previous religious exemptions are allowed to retain them. The court summarized its conclusions in part as follows:

Count One, alleging a violation of the Free Exercise Clause, is dismissed because mandatory vaccination as a condition to school enrollment does not violate the Free Exercise Clause. However, even if P.A. 21-6 was not foreclosed by Supreme Court and Second Circuit precedent, it is constitutional because it is a neutral law of general applicability which is rationally related to a legitimate state purpose.

CT Insider reports on the decision.

6th Circuit Tells District Court To Reconsider Injunction Denial Against School Mask Order

In Resurrection School v. Hertel, (6th Cir., Jan, 12, 2022), the U.S. 6th Circuit Court of Appeals vacated a Michigan federal district court's denial of a preliminary injunction against Ingham County, Michigan's COVID order requiring elementary school students, including those in religious schools, to wear masks in the classroom. It sent the case back to the district court for it to reconsider  the question of whether parents of religious school students are entitled to an injunction pending appeal. The court based its order on the fact that the district court relied on a 6th Circuit decision that was subsequently vacated by an en banc order.

Tai Chi Class Sites Are Not Places of Worship For Tax Exemption Law In Ontario

In Fung Loy Kok Institute of Taoism v. Municipal Property Assessment Corporation, (ON Super. Ct., Jan. 6, 2022), an Ontario (Canada) appellate court held that a Taoist organization was not entitled to a municipal property tax exemption for its satellite sites at which Tai Chi classes are held. The court concluded that these sites are not "places of worship" as that term is used in Ontario's Assessment Act. The court said in part:

Use of a property as a place of worship is different than other uses to which religious organizations can put property.  Evangelization efforts for example....

MPAC argues that the application judge accepted that religious expression and activities occur at the Satellite Sites.  However, in order to create an exemption for those properties, those activities must constitute acts of worship, a more narrow form of activity than the simple act of conducting a practice that has religious connotation.

CTV News reports on the decision.

"Spiritual Distress" From Employer's Vaccine Mandate Is Not "Irreparable Injury"

In Romano v. Blue Cross Blue Shield of Michigan, (ED MI, Jan. 3, 2022), a Michigan federal district court denied a preliminary injunction to an employee who was to be fired because he refused to comply with his employer's COVID vaccine mandate.  Plaintiff's refusal was based on religious objections and he claimed the employer's denial of his request for a religious exemption violated Title VII, the Michigan Elliot-Larsen Civil Rights Act, the Free Exercise Clause and the Michigan Constitution. However, the court concluded that plaintiff did not meet the "irreparable injury" requirement necessary to support an injunction.  The court said in part:

Plaintiff claimed that his damages are irreparable because he will be fired, lose prestige and seniority, have his reputation marred, and suffer "spiritual distress."... But none of the alleged harms are irreparable....

Although the Court is sympathetic to religious persons who must confront the "impossible choice," Plaintiff never developed a sound legal argument for why the injury attributable to "impossible choice" is irreparable.... Plaintiff instead cited cases that enjoined government COVID19 vaccine mandates—not private COVID-19 vaccine mandates.... As Judge Pittman noted in a similar case, although "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," the First Amendment does not apply to private companies like Defendant....

Going forward, other plaintiffs may have an avenue for injunctive relief in Title VII COVID-19 vaccine mandate cases based on stronger legal arguments and facts.... Yet it is not the Court's role to advance legal and factual arguments for litigants; the Court resolves disputes based on the arguments that litigants assert.

National Law Review reports on the decision.

Recent Articles of Interest

From SSRN:

• Lawrence G. Sager & Nelson Tebbe, Discriminatory Permissions and Structural Injustice, (Minnesota Law Review, Vol. 106, p. 803, 2021).
• Eric R. Claeys, Dobbs and the Holdings of Roe and Casey,    (Georgetown Journal of Law & Public Policy, Vol. 20, No. 1, 2022, Forthcoming).
• Stephan Sonnenberg, Adrian Von Bernstorff & Thinley Namgay, Finding the Right Path: Towards a Buddhist Sense of Corporate Ethics in Bhutan, (Seoul National University Asia Center - Asia Review Vol. 11(3) (2021)).

From SmartCILP:

• Yael Efron, Michelle LeBaron, Maged Senbel & Mohammed Wattad, Like a Prayer? Applying Conflicts with Religious Dimensions Theory to the "Muezzin Law" Conflict, 63 Washington University Journal of Law & Policy 119-142 (2020).
• Kevin W. Connell, The Bad News of Good News Club: Obliterating the Wall between Church & State, 28 William & Mary Bill of Rights Journal 569-586 (2020).

Rhode Island Vaccine Mandate For Health Care Workers Upheld

In Dr. T v. Alexander-Scott, (D RI, Jan. 7, 2022), a Rhode Island federal district court refused to issue a preliminary injunction in a free exercise challenge to a Rhode Island Department of Health regulation requiring all health care workers to be vaccinated against COVID.  The Regulation contains a narrow medical exemption, but no religious exemption. The court (which had previously denied a temporary restraining order) concluded that the regulation is both neutral and generally applicable. The court said in part:

The Regulation’s medical exemption serves the state’s principal purpose of protecting public health. A failure to exempt the limited number of individuals whose health a vaccine may jeopardize would be counterproductive to that goal to the extent of illogicality. There is no suggestion of a discriminatory bias against religion.

The court also concluded that since the regulation is silent as to religious exemptions, it does not preclude compliance with the reasonable accommodation requirements of Title VII of the 1964 Civil Rights Act.

Ministerial Exception Does Not Apply To Liberty University Art Teacher

In Palmer v. Liberty University, Inc., (WD VA, Dec. 1, 2021), a Virginia federal district court held that the ministerial exception doctrine does not apply to prevent an age discrimination suit by an art professor at Liberty University whose contract was not renewed. Concluding that the teacher is not a "minister" for purposes of the ministerial exception, the court said in part:

Palmer's educational background is largely secular.... At the core of Palmer's daily responsibilities was teaching art classes on subjects like drawing and sculpture. For a brief time in the mid-1990s, she also taught humanities courses.... She concedes that she began each class with a short prayer or psalm reading, but she did not otherwise integrate Christian lessons into her classes....  Occasionally, her art lessons would reflect Biblical stories or lessons...., but this was not, apparently, the norm....

Outside of class, Palmer did not significantly participate in her students' spiritual lives. She did not bring her students to church services.... She occasionally counseled them on personal matters outside the immediate scope of her teaching duties, and would have periodic conversations about spirituality with students, but she never led them in Bible study, guided them in scripture, or gave them sermons.

European Court Dismisses Challenge To Baker's Refusal To Supply Cake With Pro-Gay Marriage Inscription

In a much-awaited decision, the European Court of Human Rights managed to avoid dealing directly with the central question in a case pitting LGBTQ rights against religious freedom rights of owners of commercial establishments. In Lee v. United Kingdom, (ECHR, Jan. 6, 2022), Gareth Lee, a gay man, ordered a cake from a bakery in Belfast. He asked for the cake to be decorated with the slogan "Support Gay Marriage."  He planned to take it to a private event being held to mark the end of Northern Ireland Anti-Homophobia and Transphobia Week and being held to gather political support for pending legislation to legalize same-sex marriage. The bakery, Ashers Baking Company, rejected the order because the company owners' Christian religious beliefs were opposed to same-sex marriage.

Lee filed suit in a county court in Northern Ireland claiming a violation of Northern Ireland's Equality Act and its Fair Employment and Treatment Order, which, among other things, bar sexual orientation discrimination in the provision of goods or services and discrimination on the basis of religious belief or political opinion. The case wound its way up to the U.K.'s Supreme Court which concluded that there was no sexual orientation discrimination because the bakery would have refused to supply the cake with that inscription to anyone. It also rejected the political opinion discrimination claim.

Lee appealed to the European Court of Human Rights. In yesterday's decision, the court dismissed the appeal, finding that Lee "did not invoke his Convention rights expressly at any point in the domestic proceedings.  Instead he formulated his claim by reference to [Northern Ireland's domestic law]." By failing to assert his rights under the European Convention in the courts of Northern Ireland, Lee failed to exhaust his domestic remedies.  The court said in part:

75.  ... As the Supreme Court of the United States pointed out in Masterpiece Cakeshop Ltd, these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.... This is particularly so in Northern Ireland, where there is a large and strong faith community, where the LGBTIQ community has endured a history of considerable discrimination and intimidation, and where conflict between the rights of these two communities has long been a feature of public debate....

Reuters reports on the decision. [Thanks to several readers for alerting me to the decision.]

Biden Resubmits Lipstadt's Nomination As Special Envoy to Monitor Antisemitism

With Congress beginning a new session, the nominations which the President sent to the Senate last year need to be resubmitted if the Senate has failed to act on them. On Tuesday, President Biden resubmitted a large number of nominations. Among them was the nomination of Deborah Lipstadt to be Special Envoy to Monitor and Combat Anti-Semitism, with the rank of Ambassador. Lipstadt's nomination was originally sent to the Senate last July. (See prior posting.) According to a CNN report, Senate Democrats accuse Republicans of stalling the nomination.  Republicans on the Senate Foreign Relations Committee have refused so far to agree to hold hearings on her nomination. This is variously attributed to a broad effort to stall President Biden's nominees, or more narrowly to concerns by Foreign Relations Committee member Ron Johnson about tweets from Lipstadt last March critical of him. Lipstadt is a professor of Modern Jewish History and Holocaust Studies at Emory University.

Poway Synagogue Rabbi Sentenced To 14 Months In Custody For Fraud

The U.S. Attorney's Office for the Southern District of California announced that yesterday a California federal district judge sentenced Rabbi Yisroel Goldstein -- rabbi of Chabad of Poway during a much-publicized shooting in 2019-- to 14 months in custody for his part in a multi-million dollar fraud scheme.  Goldstein plead guilty to fraud charges in 2019. (See prior posting.) He was also ordered to pay $2.8 million in restitution.  According to the U.S. Attorney's Office:

[W]hile Rabbi Goldstein was director of the Poway synagogue, he received at least $6.2 million in phony contributions to the Chabad and affiliated charities and secretly refunded up to 90 percent of the donations to the “donors.” After Rabbi Goldstein provided these donors with fake receipts, they illegally claimed huge tax deductions for these nonexistent donations, and the rabbi kept about 10 percent ... for himself....

Rabbi Goldstein also admitted that he defrauded three different Fortune 500 companies by tricking them into matching supposed charitable donations of their employees....

Rabbi Goldstein ... also helped his brother ... conceal approximately $700,000 in income by allowing him to use Chabad bank accounts to deposit his income, thereby hiding it from the IRS.  As his cut, Rabbi Goldstein kept 10 percent.... 

... Goldstein and another defendant ... used false information and fabricated invoices and other records to pretend to be eligible for emergency funds, grants or donations, and private loans [from FEMA and the state of California].

According to The Forward's report on the sentencing, prosecutors had recommended a much more lenient sentence-- 8 months of home confinement and 4 years probation.