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.

Community College Vaccine Mandates Upheld

In George v. Grossmont Cuyamaca Community College District Board of Governors, (SD CA, Nov. 3, 2022), a California federal district court, in a 41-page opinion, rejected a variety of constitutional challenges and a religious discrimination challenge under Title VII to the Covid vaccine mandates of three community college districts. Plaintiffs were six employees and a student.  The mandates provided for medical and religious exemptions and accommodations. In evaluating plaintiffs' free exercise claims, the court concluded that both the mandates and the accommodation frameworks are neutral and generally applicable. In rejecting the Title VII claim, the court concluded that plaintiffs had shown no adverse employment action against them because they had all received religious exemptions.

Prisoner's RLUIPA Suit Remanded for Consideration of Statute's "Safe harbor" Provision

 In Richardson v. Clarke, (4th Cir., Nov. 7, 2022), the U.S. 4th Circuit Court of Appeals held that a prison's former policy that required inmates to remove head coverings, including religious head coverings, in certain areas of the prison imposed a substantial burden on plaintiff's religious exercise. The court remanded the case to the district court for consideration of the applicability of RLUIPA's safe harbor that allows prisons to avoid liability under RLUIPA by changing the policy or practice that imposes a substantial burden or by providing exemptions from it.

Student Statement Opposing Reproductive Rights Issue Must Be Read During School Announcements

 In Nielson v. Ann Arbor Public Schools, (ED MI, Nov. 4, 2022), a Michigan federal district court issued a temporary restraining order requiring a public high school to read an announcement from the school's Republican Club in opposition to the Reproductive Rights constitutional amendment on the Nov. 8 ballot.  The school contended that reading it would violate the Michigan Campaign Finance Act which bars the school from advocating for ballot issues.  However, the school was permitting students who favor the ballot proposal to take part in a walkout sponsored by the National Organization for Women.  The court said in part:

Plaintiffs have shown a likelihood of success on the merits of their First Amendment claim....

The Court finds that Defendants seek to silence Plaintiffs’ appropriate speech as to Proposal 3 by refusing to broadcast it with their morning announcements, while permitting students in favor of Proposal 3 to cut classes, and to demonstrate on school property in favor of Proposal 3.

Thomas More Law Center issued a press release announcing the decision (with links to pleadings in the case as well).

Tennessee AG: Abortion Ban Does Not Bar Disposal of Excess Embryos Created During IVF Process

Tennessee's Attorney General last month issued Opinion No. 22-12 (Oct. 20, 2022) clarifying that the abortion ban in Tennessee's Human Life Protection Act does not apply to the disposal of embryos which have not been transferred to a woman's uterus. Thus the law would not bar disposal of excess embryos created during the in vitro fertilization procedure. Tennessee Lookout reports on the AG's opinion. [Thanks to Scott Mange for the lead.]

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.

Recent Articles of Interest

From SSRN:

• H. Justin Pace, The Utility of Originalism in Mitigating Judicial Elite Bias: Evidence from the 2021-2022 Supreme Court Term, (October 26, 2022).
• Richard Schragger & Micah Schwartzman, Religious Freedom and Abortion, (Iowa Law Review, Forthcoming).
• Micah Schwartzman & Richard Schragger, Slipping from Secularism, (Virginia Public Law and Legal Theory Research Paper No. 2022-75 (2022).
• Stijn Smet, The Impossibility of Neutrality? How Courts Engage with the Neutrality Argument, (Forthcoming, Oxford Journal of Law and Religion (2023)).
• Phil Lord, Echoes of Responsibility, 4 International Journal of Coercion, Abuse, and Manipulation __ (Forthcoming 2023).
• Martha F. Davis, The State of Abortion Rights in the US, (International Journal of Gynecology & Obstetrics 159.1 (October 2022): 324-329).

From SSRN (Non-U.S. Law):

• Akshat Agarwal, Marriage Equality in India: Thinking Beyond Judicial Challenges to Secular Marriage Law, Indian Law Review, 6:2, 170-188 (2022).
• Prakash Shah, Book Review: Religious Offences in Common Law Asia, (Australian Journal of Asian Law, Vol. 23, No. 1, Article 9: 141-142, 2022).
• Shayna Sharim, Esq., Veiled, (October 16, 2022).
• Shayna Sharim, Esq., Childhood Marriages in Iran: Stolen Lives, Empty Classrooms, and Lost Dreams, (October 16, 2022).
• Mehdi J. Hakimi, The Genocide of Hazaras, (Virginia Journal of International Law Online, Vol. 63 (Forthcoming 2022-23)).

From SmartCILP and elsewhere:

• Susan Pace Hamill, Moral Reflections on Twenty-First Century Tax Policy Trends, 52 Cumberland Law Review 1-78 (2022).
• David M. Smolin, Kids Are Not Cakes: A Children's Rights Perspective on Fulton v. City of Philadelphia, 52 Cumberland Law Review 79-162 (2022).
• John Inazu, COVID-19, Churches, and Culture Wars,18 University of St. Thomas Law Journal 307-329 (2022).
• Charles J. Reid Jr., Thomas Aquinas on Tyrannicide, 18 University of St. Thomas Law Journal 330-358 (2022).
• Robin Fretwell Wilson, The COVID-19 Worship Cases Lessons for Governors in Democratic Governance and Transparency over "Edicts", 18 University of St. Thomas Law Journal 422-509 (2022).
• Journal of Law and Religion, Volume 37, Issue 3 (September 2022).

European Court: Human Rights Convention Violated When French Authorities Failed to Assure Respect for Foster Child's Birth Religion

In Loste v. France, (ECHR, Nov. 3, 2022) (full text in French) (Press Release summary in English), the European Court of Human Rights in a Chamber judgment held that France's child welfare service violated Article 9 of the European Convention on Human Rights when it failed to assure that a Jehovah's Witness foster family was respecting the Muslim beliefs of its foster child's birth family. The Court's decision also dealt with a separate issue--French authorities' failure to protect the foster child from sexual abuse by her foster father. Law & Religion UK has more on the decision.

Suit Challenges New York Ban on Firearms in Houses of Worship

Suit was filed this week in a New York federal district court challenging the constitutionality of New York's ban on carrying firearms in houses of worship. The complaint (full text) in His Tabernacle Family Church, Inc. v. Nigrelli, (WD NY, filed 11/3/2022) alleges that the ban violates the free exercise, Establishment Clause, Second Amendment, and equal protection rights of a church and its pastor.  The complaint says in part:

S51001 forbids Pastor Spencer and the Church’s members, under threat of criminal penalties, from exercising their religious conviction to carry firearms into the Church to protect themselves and other congregants.....

[S51101]  subjects houses of worship to disfavored treatment while treating comparable secular organizations, such as retail stores or restaurants, more favorably than those offering religious exercise....

A church’s authority over who may enter the sanctuary and under what circumstances lies at the very heart of “the general principle of church autonomy” protected by the Establishment Clause.....

First Liberty issued a press release announcing the filing of the lawsuit. Last month, in another case, the same court issued a temporary restraining order barring enforcement of this statutory provision. (See prior posting.)

Emergency Injunction Against NYC City-Worker Vaccine Mandates Sought from Supreme Court

An Emergency Application for an Injunction Pending Appellate Review (full text) was filed with the U.S. Supreme Court yesterday in New Yorkers for Religious Liberty v. City of New York.  The petition seeks an injunction against enforcing New York City's Covid vaccine mandates for city workers against those with religious objections to the vaccine. Petitioners argue in part:

Because the City’s Mandates provide for individualized exemptions, play denominational favorites, grant the government substantial discretion, and treat religious objectors less favorably than secular (e.g., economic) objectors, the Mandates violate Applicants’ free-exercise rights.

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

Challenges To School COVID Mitigation Requirements Are Dismissed

 In Tracy v. Stephens, (D UT, Nov. 1, 2022), a Utah federal district court dismissed claims that plaintiffs' rights were violated by school district COVID orders requiring the wearing of masks and social distancing.  The court said in part:

Plaintiffs have not identified what speech or type of speech was suppressed, meaning the court cannot apply the correct test to determine whether a regulation of it was permissible.... Plaintiffs have also not pleaded facts allowing for a plausible inference that by declining to wear masks or face coverings, or to participate in social distancing or isolation measures, they were engaged in inherently expressive conduct protected by the First Amendment....

Plaintiffs assert the Free Exercise Clause is implicated because they “hold a deeply held religious belief against the covering of their faces as this would violate their religious conscience,” and that they have a “God-given right to refuse unwanted medical treatment.”... But the Amended Complaint does not contain sufficient facts for the court to engage in the required analysis. Plaintiffs neither sufficiently identify the religious practices targeted and suppressed by Defendants, nor the provision(s) of the regulation(s) used by Defendants to target these practices. But Plaintiffs do identify an exemption process that would seemingly have allowed them to avoid the regulations’ requirements....

The court also dismissed plaintiffs' freedom of association, due process, equal protection, 4th, 9th and 13th Amendment, Civil Rights Act, conspiracy and state constitutional claims. 

Disciplinary Warning to Justice of the Peace Who Would Not Perform Same-Sex Weddings Is Upheld

In Hensley v. State Commission on Judicial Conduct, (TX App., Nov. 3, 2022), a Texas state appellate court affirmed the dismissal of a suit challenging a public warning issued by the Commission on Judicial Conduct that concluded plaintiff, a justice of the peace, has cast doubt on her ability to act impartially toward LGBTQ litigants. Plaintiff refused to perform same-sex weddings, while continuing to perform weddings for heterosexual couples. Instead of appealing the Commission's public warning to a special court of review, as provided by Texas statutes, plaintiff filed suit in state trial court arguing that the Commission had violated her rights under the Texas Religious Freedom Act and that her conduct had not violated the Code of Judicial Conduct.  She sought damages and additional declaratory relief. The appeals court said in part:

The trial court correctly dismissed this impermissible collateral attack on the Commission’s order....

Because the evidence establishes that the Commission has in fact not threatened further disciplinary action against Hensley, she has failed to carry her burden of demonstrating that the TRFRA waives the Commission’s immunity for her claim that threats of further discipline by the Commission have burdened her free exercise of religion.

Justice Goodwin filed a concurring opinion saying in part:

I would decide Hensley’s TRFRA claims on the ground that she did not comply with its notice provisions.... I do not agree with the Court’s analysis..., particularly the Court making an implicit finding by the Commission that its investigation and disciplinary action did not substantially violate Hensley’s free exercise of religion and that this implied finding foreclosed any future claims.

KWTX News reports on the decision. 

9th Circuit: Requiring Beauty Pageant to Include Transgender Female Violates Its Free Speech Rights

In Green v. Miss United States of America, LLC, (9th Cir., Nov. 2, 2022), the U.S. 9th Circuit Court of Appeals held that it violates the free speech rights of the Miss USA Pageant to require it under Oregon's Public Accommodations Act to include a transgender female in the Pageant. The court's majority, in an opinion by Judge VanDyke joined by Judge Bea, said in part:

Requiring Miss United States of America to allow Green to compete in its pageants would be to explicitly require Miss United States of America to remove its “natural born female” rule from its entry requirements. This in turn would directly affect the message that is conveyed by every single contestant in a Miss United States of America pageant. With the Pageant’s “natural born female” rule, every viewer of a Miss United States of America pageant receives the Pageant’s message that the “ideal woman” is a biological female, because every contestant is a “natural born female.” If the Pageant were no longer able to enforce its “natural born female” rule, even if a given transgender contestant or contestants never openly communicated to anyone outside of the Pageant their transgender status and were otherwise fully indistinguishable from the “natural born female” contestants (at least as presented in the Pageant)—and more fundamentally, even if no transgender contestants were to enter a Miss United States of America pageant—the Pageant’s expression would nonetheless be fundamentally altered. Without the “natural born female” rule, viewers would be viewing a fundamentally different pageant from that which presently obtains: one which could contain contestants who are not “natural born female[s].” Thus, the Pageant’s desired expression of who can be an “ideal woman” would be suppressed and thereby transformed through the coercive power of the law if the OPAA were to be applied to it....

Application of the OPAA would force the Pageant to include Green and therefore alter its speech. Such compulsion is a content-based regulation under our caselaw, and as such warrants strict scrutiny.

Judge VanDyke also filed a concurring opinion speaking only for himself, saying that forced inclusion of a transgender female in the Pageant infringes the Pageant's freedom of association as well as its freedom of speech.

Judge Graber dissented, contending that the court should not reach the constitutional question until it is determined whether the Oregon Public Accommodations Act even applies to the Miss USA Pageant.  Reuters reports on the decision.

Religious Parties Winning 33 Seats In Israel's Knesset Election

Haaretz reports that as of 4:07 PM Nov. 2 (Israeli time), with 85.9% of the vote in yesterday's election counted, three Jewish religious parties appear to have won seats in the Knesset: Religious Zionism- 14 seats; Shas- 11 seats; United Torah Judaism- 8 seats.  Benjamin Netanyahu's Likud Party appears to have won 32 seats, so that in coalition with the religious parties, they will have a majority of the 120 seats in the Knesset. There could be some change in these numbers as Meretz has won 3.19% of the vote so far. If this increases to 3.25% in the final tabulation, it will take a seat.

Suit Challenges Law Limiting Employer Right to Force Employees to Listen to Religious Presentations

 A number of business organizations filed suit yesterday in a Connecticut federal district court challenging on free speech grounds a Connecticut statute that protects employees from being made into captive audiences. The statute imposes liability on employers that discipline employees who refuse to attend employer-sponsored meetings or listen to employer communications whose primary purpose is to express the employer's views on religious or political matters. The complaint (full text) in Chamber of Commerce of the USA v. Bartolemo, (D CT, filed 11/1/2022), also contends that the state law is pre-empted by the National Labor Relations Act. Ct  Mirror reports on the lawsuit.

New Survey Covers Attitudes About Religion, Christianity and Christian Nationalism in Public Life

The Pew Research Center last week (Oct. 27) released an extensive poll on the attitudes of the American public about religion's role in public life.  It asked questions about whether the U.S. should be a Christian nation, whether respondents have heard of Christian nationalism, and much more. The 65-page report (full text) on the poll says in part: 

Overall, six-in-ten U.S. adults – including nearly seven-in-ten Christians – say they believe the founders “originally intended” for the U.S. to be a Christian nation. And 45% of U.S. adults – including about six-in-ten Christians – say they think the country “should be” a Christian nation. A third say the U.S. “is now” a Christian nation. 

At the same time, a large majority of the public expresses some reservations about intermingling religion and government. For example, about three-quarters of U.S. adults (77%) say that churches and other houses of worship should not endorse candidates for political offices. Two-thirds (67%) say that religious institutions should keep out of political matters rather than expressing their views on day-to-day social or political questions. And the new survey – along with other recent Center research – makes clear that there is far more support for the idea of separation of church and state than opposition to it among Americans overall.

Student and Coach Sue After Being Disciplined for Criticizing Transgender Student's Use of Girl's Locker Room

Suit was filed last week in a Vermont federal district court by a 14-year old student and her father, a school soccer coach, contending that their free speech and due process rights were violated when the school disciplined them for remarks they made criticizing a transgender female's use of the girl's locker room. The daughter's remarks were made to friends in a French class.  The father made his remarks in a Facebook post.  The controversy escalated and was covered by a local TV station.  The complaint (full text) in Allen v. Millington, (D VT, filed 10/27/2022), alleges in part:

The First Amendment does not countenance this kind of government censorship, where a public school mandates that students and coaches refrain from expressing any view that offends its prescribed views....This case presents a textbook example of unconstitutional viewpoint discrimination, and Plaintiffs are entitled to all appropriate relief.

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

Legal Changes to Promote Religious Harmony Come into Effect in Singapore

A press release from the Singapore Ministry of Home Affairs points out that 2019 amendments to the Maintenance of Religious Harmony Act and 2021 amendments to the Criminal Law go into effect today. According to the press release:

Key administrative leadership positions in religious groups are to be held only by Singapore Citizens (SC) or Permanent Residents (PR), and the majority of the governing body has to be SCs....

Religious groups must declare single monetary donations of S$10,000 or more from foreign sources...

Religious groups must declare any affiliations to foreign persons or organisations which are in a position of control or power over the local religious group....

 ... [W]e will introduce the CRI [Community Remedial Initiative], to be offered by the Minister for Home Affairs, as an opportunity for a person to take remedial actions to soothe communal tensions and repair disrupted ties.

(a)   Examples of such remedial actions include a public or private apology to the aggrieved parties, or participation in inter-religious events. This will provide an opportunity for the person to make amends to the affected community, and better understand the sensitivities of Singapore’s multi-religious society....

... [A]mendments will update the RO [Restraining Order] regime to enable us to swiftly and effectively respond to offensive online content that might cause widespread harm to religious harmony. The updated RO regime will also allow us to safeguard against foreign influences on our local religious groups that may undermine our religious harmony....

Cert. Denied in Mootness Dismissal of Free Exercise Challenge to Mask Mandate

The U.S. Supreme Court this morning denied review in Resurrection School v. Hertel, (Docket No. 22-181, certiorari denied 10/31/2022). (Order List.) In the case, an en banc panel of the U.S. 6th Circuit Court of Appeals held by a vote of 13-1-3 that a free exercise challenge to Michigan's COVID mask mandate for school children is moot. (See prior posting.)