Religion Clause

Friday, June 17, 2022

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.

Thursday, June 16, 2022

President Issues Executive Order On Equality For LGBTQI+ Individuals

President Biden yesterday issued an Executive Order on Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals. (Full text). The Order sets out a long list of initiatives to be undertaken by various Cabinet departments and federal agencies. These include using federal authority to counter state laws which limit access to medically necessary care, reducing the risk of exposure to conversion therapy, and strengthening non-discrimination protections. The Order also focuses on support for LGBTQI+ individuals in schools, housing programs, family counseling and health care.

Yeshiva University Must Recognize LGBTQ Student Group

In YU Pride Alliance v. Yeshiva University, (NY Cty. Sup.Ct., June 14, 2022), a New York state trial court held that New York City's public accommodation law requires Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance. The University must immediately grant the organization the full and equal treatment accorded to other student organizations. The court rejected the University's claim that it is exempt from coverage under the definitions in NY Admin Code §8-102 which excludes from coverage a "religious corporation incorporated under the education law." While Yeshiva University is incorporated under the education law, according to the court:

Yeshiva's organizing documents do not expressly indicate that Yeshiva has a religious purpose. Rather, Yeshiva organized itself as an "educational corporation" and for educational purposes, exclusively.... [T]he inquiry must focus on the purpose of the institution, which is typically expressed in a corporation's organizing documents. There may be schools organized under the education law that have a stated religious purpose so that they are exempt.... Since Yeshiva has not done so, the court does not need to reach this issue.

The court went on to hold that applying the public accommodation provisions of the New York City Human Rights Law to Yeshiva does not violate its First Amendment free exercise or free speech rights, saying in part:

Assuming arguendo that Yeshiva's refusal to recognize an LGBTQ student group is part of its exercise of religion, the NYCHRL's impact on Yeshiva's exercise of religion is only incidental to the NYCHRL's ban on discrimination. There can be no dispute that the NYCHRL is a neutral law of general applicability. It does not target religious practice....

... Yeshiva's Free Speech rights will not be violated by application of the NYCHRL. Formal recognition of a student group does not equate with endorsement of that group's message....

Washington Examiner reports on the decision.

New Jersey Township Settles RLUIPA Zoning Case With DOJ

The Department of Justice announced yesterday that a proposed Consent Order (full text) has been filed with a New Jersey federal district court in United States v. Township of Jackson, (D NJ, filed 6/15/2022). According to the Justice Department:

[The order] would resolve a lawsuit the United States filed in May 2020 alleging that the Township and Planning Board passed zoning ordinances that broadly prohibited religious schools and banned schools with dormitories, both of which are important to providing religious education within the Orthodox Jewish community. The complaint alleged that the intent of the ordinances was to prevent Orthodox Jewish schools from opening in the Township and thereby dissuade members of that community from living in or moving to Jackson....

The consent order requires Jackson Township to repeal the remaining active discriminatory ordinance and replace it with an ordinance that will allow religious elementary and secondary schools, religious higher learning institutions and religious residential schools. The consent order also requires that the new zoning ordinance treat religious schools equally with non-religious institutions that operate in the Township.

Also, the Township must pay a $45,000 civil penalty and pay $150,000 into a settlement fund.

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.

Wednesday, June 15, 2022

Synagogue Sues In Challenge To Florida's Restrictive Abortion Law

Suit was filed last week in a Florida state trial court by a Palm Beach County synagogue challenging Florida's recently enacted 15-week abortion ban. The complaint (full text) in Generation to Generation, Inc. v. Florida, (FL Cir. Ct., filed 6/10/2022) contends that the law violates the free exercise, establishment, right to privacy, due process and equal protection provisions of the Florida Constitution. The complaint alleges in part:

40. Some women, such as the members, congregants, supporters of Plaintiff L’Dor Va-Dor and their families have an abortion because it is required by their religious faith. For Jews, all life is precious and thus the decision to bring new life into the world is not taken lightly or determined by state fiat. In Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act. As such, the Act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom.....

71. The Jewish people have often borne the brunt of the horrors that occur when the power of Christianity has merged with the power of the state. The result has been Inquisitions, Crusades, ghettoes and pogroms for the Jews and the eventual loss of freedom for everyone else....

72. The architects of the Act have taken a first step towards the dismantling of that wall and returning the state of Florida and our nation back to a time when the merger of Christianity and government produced genocide, slavery, misogyny, and the denial of equal rights and in many cases, any rights at all to those who did not share the gender, race or religion of those in power.

Jews for a Secular Democracy issued a press release announcing the filing of the lawsuit.

German Federal Court Refuses To Order Removal Of Medieval Antisemitic Sculpture

As reported by AP, Germany's Federal Court of Justice yesterday refused to order a Wittenberg church where Martin Luther once preached to remove a 730-year old antisemitic sandstone relief carved on the outside of the church. The sculpture is known as the "Judensau" or "Jew pig". A display explaining the history of antisemitism in Germany was added in 1988. While the full opinion is not yet online, the Court issued a press release summarizing the Court's decision. The press release describes the sculpture:

It shows a sow whose teats are being suckled by two people who are identified as Jews by their pointy hats. A person, who can also be identified as a Jew by his hat, lifts the sow's tail and looks into her anus. In 1570, the inscription "Rabini Shem Ha Mphoras" was placed over the sow, based on two anti-Judaist writings published by Martin Luther in 1543.

The press release also summarizes the Court's holding that while the sculpture was originally "massively defamatory," a bronze base and and a nearby display added in 1988 remedied the situation:

From the authoritative point of view of an unbiased and reasonable observer, it has ... converted [the sculpture] into a memorial for the purpose of commemoration and remembrance of the centuries-long discrimination and persecution of Jews up to the Shoah and distanced itself from the defamatory and anti-Jewish statement - as expressed in the relief when viewed in isolation.

State Department Issues International Religious Freedom Report

On June 2, the State Department issued its annual Report to Congress on International Religious Freedom. Issued in accordance with the International Religious Freedom Act of 1998, the Report describes the status of religious freedom in nearly 200 foreign countries. The 2000-page Report is available on the State Department's website only in a format that allows the reader to choose one country at a time and read the report on that nation. Appendices to the Report, also available on the website, give additional information on the legal framework that attempts to assure religious freedom internationally. Secretary of State Blinken and Ambassador At Large for International Religious Freedom Rashad Hussain delivered remarks (full text) on the release of the Report, highlighting issues in a number of nations. Ambassador Hussain said in part:

I’d like to lay out three key themes in the report.

First, too many governments use discriminatory laws and policies and abuse their own people. We have seen two genocides of religious minority communities in recent years – in China and in Burma.

Second, rising societal intolerance and hatred are fueling violence and conflict around the world. Governments must not sit silent or stand idly by in the face of such oppression.

Third, powerful collaboration among civil society, governments, and multilateral partners has led to some progress and provides hope in addressing these complex challenges.

Tuesday, June 14, 2022

European Court: Lithuania Should Have Provided Civilian Service Alternative To Jehovah's Witness

In Teliatnikov v. Lithuania, (ECHR, June 7, 2022), the European Court of Human Rights in a Chamber Judgment held that Lithuania violated Article 9 (freedom of thought, conscience and religion) of the European Convention On Human Rights when it refused to grant a Jehovah's Witness deacon alternative service under civilian control. The petitioner has religious objections to military service or any alternative service controlled, supervised or directed in any way by the military, or which supports military activity. Lithuania only provides alternative national defense service under military supervision. The court concluded:

the Court finds that the system in Lithuania failed to strike a fair balance between the interests of society and those of the applicant who has deeply and genuinely held beliefs.

The court also issued a press release summarizing the decision.

Title VII 90-Day Right To Sue Runs From Receipt Of Email, Not From Opening It

In Paniconi v. Abington Hospital- Jefferson Health, (ED PA, May 24, 2022), plaintiff, a 62-year-old white woman and a born-again Christian had filed a race and religious discrimination claim against her employer with the EEOC. The EEOC sent both plaintiff and her attorney a right-to-sue letter on Sept. 8, 2021, but sent it through an e-mail which merely told the recipients to check their EEOC portal for an important document. The e-mail to the attorney did not list the client's name or indicate that the important document was a right-to-sue letter. Title VII requires suit to be filed within 90 days after receipt of the right-to-sue letter. Plaintiff's attorney did not access the portal or download the letter until Sept. 13. Suit was filed on December 8, which is 91 days after receipt of the e-mail. The court dismissed the suit, rejecting the argument that the 90-day period should run from the date the attorney accesses the portal and downloads the letter. Instead it held that the 90-day period runs from the date the e-mail reaches the attorney's inbox. JD Supra reports on the decision.

10th Circuit Affirms Dismissal Of Church's Complaint Regarding Sending Of Material To Inmates

In Colorado Springs Fellowship Church v. Williams, (10th Cir., June 13, 2022), the U.S. 10th Circuit Court of Appeals rejected a church's challenge to prison rules that barred it from sending DVD's directly to inmates. Religious organizations could only send religious materials to the Bureau of Prisons which would them make them available to all inmates. The district court had dismissed the church's Establishment Clause claim. On appeal, the court refused to consider the church's argument that the Turner standard does not apply to free speech and free exercise claims brought by non-prisoners because the church had not made that argument to the district court below. The church had also failed to allege that it was treated differently than other religious groups.

Monday, June 13, 2022

11th Circuit: Jail's Procedure For Passover Participation Is Upheld

In Dorman v. Chaplain's Office BSO, (11th Cir., June 10, 2022), the U.S. 11th Circuit Court of Appeals upheld the procedures used by the Broward County, Florida jail that required inmates to register 45 days in advance in order to participate in Passover services and meals. The court said in part:

First, the 45-day registration requirement did not constitute a substantial burden on Mr. Dorman’s exercise of his Jewish faith under the RLUIPA, and therefore it also did not violate the First Amendment’s more lenient reasonableness standard. Second, the electronic posting of the 45-day registration requirement on the Jail’s computer kiosk, which he and other inmates used to communicate with Jail staff, provided adequate notice of the registration requirement to satisfy due process.

Friday, June 10, 2022

Challenges To New Jersey's Assisted Suicide Act Are Rejected

In Petro v. Platkin, (NJ App., June 10, 2022), a New Jersey state appellate court dismissed constitutional challenges to New Jersey's Medical Aid in Dying for the Terminally Ill Act. It held the plaintiffs-- a terminally ill resident, a physician and a pharmacist-- lack standing because their participation in the procedures permitted by the Act are completely voluntary. The court also rejected claims that the statute violates the "single object" requirement of the state constitution or state constitutional provisions on the right to enjoy and defend life. It also rejected 1st Amendment free exercise claims, finding that the statute is a neutral law of general applicability.

Christian Mission's Suit Over Sex Offender Statute Is Moot

In City Union Mission, Inc. v. Sharp, (8th Cir., June 10, 2022), the U.S. 8th Circuit Court of Appeals affirmed the dismissal of a suit brought by an organization that offers meals, shelter and a Christian Life Program for men seeking help with life skills and addiction. At issue was whether a state statute barring sex offenders from being present or loitering within 500 feet of a children's playground is constitutional. The court held that the statute does not apply to the Mission because it does not allege that its clients are loitering when they are receiving services. Therefore its suit seeking an injunction is moot. Its claim for damages against the former sheriff who enforced the statute were dismissed on qualified immunity grounds. The court said in part:

we can find no “controlling case” or “robust consensus of cases of persuasive authority” that would have notified Sheriff Sharp that Affected Persons had a clearly established right to seek City Union Mission’s services in a building located within 500 feet of a park containing playground equipment.

Judge Kobes filed a concurring opinion.

School Lacks Standing To Sue For Students' and Parents' Distress From Anti-Abortion Pickets

In Nicdao v. Two Rivers Public Charter School, (DC Ct. App., June 9, 2022), the District of Columbia's local Court of Appeals held that a school's suit for intentional infliction of emotional distress should be dismissed for lack of standing. At issue was intrusive protests by three individuals who were opposing the construction of a Planned Parenthood clinic next door to the school. The court held that the school lacked third-party standing to sue on behalf of parents and students who were injured. Financial hurdles making it difficult for the injured parties to sue are insufficient here justify third-party standing. The court also dismissed plaintiff's private nuisance and conspiracy claims. Liberty Counsel issued a press release announcing the decision.

Thursday, June 09, 2022

European Court Says Russia Violated Rights of Jehovah's Witnesses

In a 6-1 Chamber Judgment in Taganrog LRO and Others v. Russia, (ECHR, June 7, 2022), the European Court of Human Rights held that Russia's forced dissolution of Jehovah’s Witnesses religious organizations, banning of Jehovah's Witness religious literature and international website on charges of extremism, banning distribution of their religious magazines, criminal prosecution of individual Jehovah’s Witnesses, and confiscation of their property violate protections for freedom of religion, expression and assembly found in Articles 9, 10 and 11 of the European Convention on Human Rights, as well as other protections. The Court said in part:

152. The first ground for declaring the Taganrog LRO to be an “extremist” organisation was the charge that its texts stoked religious hatred by casting “traditional” Christian denominations in a negative light, undermining respect for their religious figures, urging people to leave those religions, and proclaiming the superiority of the religion of Jehovah’s Witnesses....

153. The Court reiterates that preference for one’s own religion, the perception of it as unique and the only true one or as a “superior explanation of the universe” is a cornerstone of almost any religious system, as is the assessment of the other faiths as “false”, “wrong” or “not conducive to salvation”.... In the absence of expressions that seek to incite or justify violence or hatred based on religious intolerance, any religious entity or individual believers have the right to proclaim and defend their doctrine as the true and superior one and to engage in religious disputes and criticism seeking to prove the truth of one’s own and the falsity of others’ dogmas or beliefs....

154. ... [I]n a pluralist and democratic society, those who exercise their right to freedom of religion ... cannot reasonably expect to be shielded from exposure to ideas that may offend, shock or disturb. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.... Religious people may be genuinely offended by claims that others’ religion is superior to theirs. However, just because a remark may be perceived as offensive or insulting by particular individuals or groups does not mean that it constitutes “hate speech”....

The Court also issued a press release summarizing the lengthy opinion.

Colorado Imposes Reporting Requirements On Health Care Sharing Ministries

Yesterday, Colorado Governor Jared Polis signed House Bill 22-1269 (full text) into law. The law requires health care sharing ministries to file detailed annual reports with the Commissioner of Insurance. Colorado Politics reports on the bill.

Free Exercise Challenge To New Mexico COVID Orders Moves Ahead

McKinley v. Grisham, (D NM, June 7, 2022), involves various challenges to Executive Orders and Public Health Orders issued by New Mexico officials in response to the COVID pandemic. While most of the challenges were dismissed, the court allowed plaintiffs to move ahead with their free exercise challenge to restrictions on in-person gatherings at houses of worship. The court said in part:

Some New Mexico public health orders treated comparable secular activities more favorably than religious exercise. For example, the April 11, 2020, public health order allowed essential businesses 20% occupancy capacity but prohibited mass gatherings in a church, synagogue, mosque or other place of worship....

Taking the allegations as true, it is plausible that the Plaintiffs state a freedom of religion claim. Therefore, whether the public health orders survive strict scrutiny is a factual inquiry that cannot be resolved on this Motion. For the above reasons, Plaintiffs alleged a plausible freedom of religion claim, and this Count cannot be dismissed at this stage.

9th Circuit OK's Refusal To House Muslim Inmate Only With Co-Religionists

In Al Saud v. Days, (9th Cir., June 8, 2022), the U.S. 9th Circuit Court of Appeals rejected claims under RLUIPA and the 1st Amendment brought by a Muslim inmate who sought to be housed only with other Muslim inmates. He contends he is currently unable to pray five times per day as required by his religion because inmates with whom he is now housed harass him when he prays. The court summarized the holding in part as follows:

Al Saud’s RLUIPA claim failed because denying his request to be housed only with Muslims was the least restrictive means of furthering a compelling governmental interest. The panel concluded that the outcome of this case was largely controlled by Walker v. Beard, 789 F.3d 1125 (9th Cir. 2015), which held that a prison could deny a prisoner’s religious accommodation when he sought to be housed with only white people. Because both race and religion are suspect classes, the likelihood that equal protection liability would flow from housing prisoners based on religion was substantially identical to the likelihood of liability for housing prisoners based on race and, therefore, was sufficient to serve as a compelling interest.