9th Circuit: Fact Issues Remain As To Prison's Confiscation of NOI Texts

 In Jones v. Slade, (9th Cir., Jan. 24, 2022), the U.S. 9th Circuit Court of Appeals reversed a district court's grant of summary judgment and held that there remains genuine issues of fact in connection with an Arizona prison's confiscation of six hip-hop music CD's and two Nation of Islam texts which plaintiff received by mail.  The Court held that questions remain as to selective enforcement of prison rules as to the music CD's.  It concluded that plaintiff's RLUIPA and Free Exercise claims relate to his religious practice of reading Nation of Islam texts authored by Elijah Muhammad during Ramadan.  The court said in part:

RLUIPA defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” ... That means that RLUIPA protects not only practices deemed orthodox by some recognized religious organization,  but also idiosyncratic practices—practices “not compelled by, or central, to a [given] system of religious belief.”

The court held that as to both plaintiff's RLUIPA claim and his 1st Amendment Free Exercise claim, "there is a genuine issue of fact as to whether denying Jones essential religious texts during Ramadan is a substantial burden on his religious exercise...."  Tucson Sentinel reports on the decision.

Biden and Harris Issue Statement In Support Of Roe v. Wade

Last Saturday (Jan. 22) was the 49th anniversary of the decision in Roe v. Wade that established a constitutional right to abortion.  On Saturday, the White House issued a statement from President Biden and Vice President Harris (full text), saying in part:

The Biden-Harris Administration strongly supports efforts to codify Roe, and we will continue to work with Congress on the Women’s Health Protection Act. All people deserve access to reproductive health care regardless of their gender, income, race, zip code, health insurance status, immigration status, disability, or sexual orientation. And the continued defense of this constitutional right is essential to our health, safety, and progress as a nation.

We must ensure that our daughters and granddaughters have the same fundamental rights that their mothers and grandmothers fought for and won on this day, 49 years ago....

10th Circuit Affirms Dismissal Of Churches Challenge To Colorado COVID Restrictions

In Denver Bible Church v. Polis, (10th Cir., Jan. 24, 2022), the U.S. 10th Circuit Court of Appeals affirmed a district court's denial of a preliminary injunction in a free exercise challenge by two churches and one of their pastors to COVID restrictions imposed by the state of Colorado.  It similarly affirmed the dismissal of a challenge to the federal government's award of COVID relief aid to the state.  The court dismissed most of the claims against the state on mootness grounds, finding that changes in state restrictions have lifted all COVID limits on churches. The facial challenge to the state's emergency disaster statute was dismissed because the statute is neutral and generally applicable.  The court then dismissed for lack of standing plaintiffs' claim that the federal government violated RFRA by distributing COVID relief aid to Colorado while the state was violating plaintiffs' free exercise rights.

Free Exercise Challenges To OSHA Vaccine Mandate Dismissed By Supreme Court In Light Of NFIB Decision

 As has been widely reported, earlier this month in National Federation of Independent Business v. OSHA, (Sup. Ct., Jan. 13, 2022), the Supreme Court held that OSHA exceeded its statutory authority in ordering vaccination of employees in all businesses with more than 100 employees.  Today, the Supreme Court dismissed 13 cases in which the same OSHA regulation was challenged. (Order List). Among those dismissed were two cases brought by religious institutions that raised specific religious freedom objections to the vaccine mandate: Southern Baptist Theological Seminary v. OSHA, (Docket No. 21A246, dismissed 1/24/2022) and Word of God Fellowship, Inc. v. OSHA, (Docket No. 21A250, dismissed 1/24/2022). More details of the challenges in those two cases are discussed in this prior posting.

Recent Articles of Interest

 From SSRN:

• SpearIt, 9/11 Impacts on Muslims in Prison, (Michigan Journal of Race & Law, Vol. 27, p. 101, 2021, forthcoming).
• Gila Stopler, From Private Prejudice to Public Policy: How Religious Conservatives Use Liberalism to Control Women’s Bodies the U.S. and Israel in Comparative Perspective,  (Forthcoming in 30 William and Mary Bill of Rights Journal,).
• Bruce A. Green & Rebecca Roiphe, ABA Model Rule 8.4(g), Discriminatory Speech, and the First Amendment, (Hofstra Law Review, Vol. 50, 2022).
• Ronit Irshai, Tanya Zion-Waldoks & Bana Shoughry, The First Female Qadi in Israel's Shari`A (Muslim) Courts: Nomos and Narrative, (Shofar 38.2 (2020): pp. 229–262).

From SmartCILP:

• Therese M. Stewart, Judicial Words Matter, 21 Journal of Appellate Practice & Process 433-454 (2021).
• George Nicholson, Appendix A: Court-Clergy Outreach, 21 Journal of Appellate Practice & Process 505-520 (2021).

Senate Confirms Joseph Donnelley As Ambassador To The Vatican

On Jan. 20, the U.S. Senate, by voice vote, confirmed Joseph Donnelley of Indiana to be U.S. Ambassador to the Vatican. AP reports:

Donnelly is a Democrat who served six years in the U.S. House from a South Bend-area district before winning election to the Senate in 2012. He lost his 2018 reelection bid to Republican Mike Braun.

Donnelly has bachelor’s and law degrees from the University of Notre Dame, where he has been a part-time professor while also working for the Washington law firm Akin Gump.

Notre Dame President Rev. John Jenkins called Donnelly “a person of deep Catholic faith and commitment to public service.”

 [Thanks to Scott Mange for the lead.]

Pastor's Suit Against Church For Mishandling Investigation Dismissed On Ecclesiastical Abstention Grounds

In Taylor v. Evangelical Covenant Church, (IL App., Jan. 12, 2022), an Illinois state appeals court dismissed on ecclesiastical abstention grounds a suit by a pastor against his former church for breach of contract and intentional interference with economic advantage. Plaintiff claimed that the church carelessly handled an investigation into malicious accusations against him of sexual assault supposedly occurring some forty years earlier, before plaintiff became a pastor. Plaintiff was suspended during the investigation, and after the suspension was lifted he was never returned to his former position. The court said in part:

Even viewed in the light most favorable to him, plaintiff’s claims arise from a wholly internal investigation and suspension conducted by his church. Plaintiff’s claims are inexorably intertwined with defendant’s investigation as to whether he was fit to serve as a pastor, given the accusation of sexual misconduct against him. That is, the substance of plaintiff’s complaint relates to internal matters of church governance and discipline. Ecclesiastical abstention is required because this case necessarily involves matters of internal discipline....  [N]o matter how egregiously defendant may have departed from proper investigatory procedures, the subject matter of the dispute makes abstention compulsory.

Ann Arbor, Michigan City Council Condemns Synagogue Picketers

The Ann Arbor, Michigan City Council on January 18 adopted a Resolution Condemning Antisemitism (full text) which explicitly condemns a group of individuals who have picketed the local Conservative synagogue every Saturday for the last 18 years.  The Resolution reads in part:

Whereas, A small group has picketed the Beth Israel Congregation, an Ann Arbor synagogue, every Saturday for 18 years, erecting antisemitic signs along the Washtenaw Avenue right-of-way including those that allege conspiracy and tarnish the Star of David, creating an atmosphere of hate;

RESOLVED, That the Ann Arbor City Council condemns all forms of antisemitism, and in particular the weekly antisemitic rally on Washtenaw Avenue; calls upon the persons who rally to express antisemitism on Washtenaw Avenue to renounce extremism, disband, and cease their weekly show of aggressive bigotry; and declares its support for the Beth Israel Congregation, their guests, and all members of the Jewish Community in Ann Arbor, each of whom has the right to worship, gather, and celebrate free from intimidation, harassment, and fear of violence.

Last year, the U.S. 6th Circuit Court of Appeals dismissed a suit against the picketers finding that their actions are protected by the 1st Amendment. (See prior posting.) MLive has a detailed report on the Council meeting at which the resolution was adopted.

Supreme Court Assures Further Delay In Challenge To Texas Heartbeat Abortion Law

Yesterday, in In re Whole Woman's Health, (Sup.Ct., Jan. 20, 2022),  the U.S. Supreme Court in a brief Order refused to issue a writ of mandamus requested by Texas abortion providers who are seeking a speedy adjudication of the constitutionality of Texas SB8, the state's "heartbeat" abortion law that essentially bans almost all abortions after six weeks of pregnancy.  Courts, including the Supreme Court, have refused to enjoin enforcement of the Texas law while its constitutionality is being litigated. Earlier this week, the 5th Circuit assured further delay by certifying a state law issue in the case to the Texas Supreme Court instead of remanding the case to the Texas federal district court for it to act on the constitutional question. (See prior posting.) Yesterday, Justice Breyer filed a dissenting opinion that was joined by Justices Sotomayor and Kagan, and Justice Sotomayor filed a dissenting opinion joined by Justices Breyer and Kagan, objecting to the Court's denial of mandamus.  Justice Sotomayor said in part:

Today’s decision shows that any hope that Whole Woman’s Health II might protect the Constitution’s guarantees in this case was illusory. As it turns out, Texas did not even have to amend its law to sidestep the minimal relief this Court left available. Instead, Texas wagered that this Court did not mean what little it said in Whole Woman’s Health II or, at least, that this Court would not stand behind those words, meager as they were. That bet has paid off.... [This Court] accepts yet another dilatory tactic by Texas.... 

This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a State continues to nullify this constitutional guarantee.

Texas Tribune reports on the decision.

Report Criticizes Cardinal Who Later Became Pope For Not Acting On Sex Abuse Reports

A German law firm yesterday released a lengthy report (full text in German) on sexual abuse by clerics and employees in the Archdiocese of Munich and Freising from 1945 to 2019.  The report is of particular interest because then-Cardinal Joseph Ratzinger who later became Pope Benedict XVI headed the Archdiocese from 1977 to 1982. Vatican News Service summarizes the Report's findings:

At least 497 people were abused in the Archdiocese of Munich-Freising over a period of almost 74 years (from 1945 to 2019). Most of them were young; 247 are male victims and 182 are female. Sixty percent of the victims were between the ages of 8-14. The report identifies 235 perpetrators of abuse including 173 priests, nine deacons, five pastoral workers, 48 people from the school environment.

According to NPR:

The report ... contradicts Benedict's long-running denial that he covered up or ignored abuse.

Two of the cases involved two perpetrators who committed the abuse while Ratzinger was in office.... The two were kept in pastoral work after being punished by the judicial system. A third case involved a cleric who had been convicted by a court outside Germany and was put back into service in the Munich archdiocese despite evidence showing Ratzinger knew of the man's past....

The law firm's report also criticizes Cardinal Reinhard Marx, who is currently the archbishop of Munich and Freising, for his role in two cases in 2008.

RFRA Defense Successful For Tribal Member Charged In Protest Over Border Wall Construction

In United States v. Ortega, (D AZ, Jan. 19, 2022), an Arizona federal district court reversed its earlier ruling (see prior posting) and allowed Amber Ortega, a member of the Tohono O’odham Nation, to raise a Religious  Freedom Restoration Act defense in her trial on two misdemeanor charges for violating a closure order at the Organ Pipe Cactus National Monument. Ortega was protesting construction of a border wall at Organ Pipe. At the hearing on Wednesday, the court went on to acquit Ortega.  According to KJZZ News, at the hearing Ortega's new lawyer argued:

[T]he religious act in question was not prayer at Quitobaquito.  It was the act of standing at the construction line and witnessing what she saw as the destruction of her ancestral land.

Former Scientology Members No Longer Bound By Arbitration Agreement

In Bixler v. Superior Court for the State of California, (CA App., Jan. 19, 2022), a California state appellate court, reversing the trial court, held that former Church of Scientology members were not bound by their agreement to submit all disputes with the Church to the Church's Religious Arbitration system when the dispute involves conduct that occurred after plaintiffs left the Church. Plaintiffs reported to the police that "That 70’s Show" star Danny Masterson, who was also a Scientology member, had raped them. In retaliation for their reporting, plaintiffs claim that the Church encouraged its members to engage in an elaborate harassment campaign using the Church's so-called Fair Game tactics. The court summarized its holding:

Individuals have a First Amendment right to leave a religion. We hold that once petitioners had terminated their affiliation with the Church, they were not bound to its dispute resolution procedures to resolve the claims at issue here, which are based on alleged tortious conduct occurring after their separation from the Church and do not implicate resolution of ecclesiastical issues.

New York Post reports on the decision.

U.N. Adopts Resolution Condemning Holocaust Denial

The United Nations General Assembly yesterday adopted by consensus a Resolution (full text) that condemns Holocaust denial or distortion. The Resolution, among other things, calls attention to the role of social media in spreading disinformation and misinformation. A United Nations press release announcing the Resolution points out:

The vote comes on the same day, 80 years ago, during the Wansee Conference, when top Nazi officials discussed and coordinated the genocide of the Jewish people, establishing the system of Nazi death camps.

According to The Hill, Iran "disassociated" from the Resolution.

Faculty Seek To Sever Ties With Their Union Because Of Its Anti-Semitic Positions

Suit was filed last week in a New York federal district court by six faculty members at City University of New York who are seeking to sever all ties with the faculty union known as the Professional Staff Congress. They contend that they are required to use PSC as their exclusive bargaining agent. The complaint (full text) in Goldstein v. Professional Staff Congress/CUNY, (SD NY, files 1/12/2022), alleges in part:

3. All but one of the plaintiffs are Jewish, and several of them resigned from PSC following its adoption in June 2021 of a “Resolution in Support of the Palestinian People” ... that Plaintiffs view as anti-Semitic, anti-Jewish, and anti-Israel. Since the Resolution, PSC has continued to advocate positions and take actions that Plaintiffs believe to be anti-Semitic, anti-Jewish, and anti-Israel, in a manner that harms the Jewish plaintiffs and singles them out for opprobrium, hatred, and harassment based on their religious, ethnic, and/or moral beliefs and identity....

JNS reports on the lawsuit.

Jewish Couple Challenge Denial Of Services By Christian Foster Care Placement Agency

Suit was filed yesterday in a Tennessee state trial court challenging the state's contracting with a Christian child placement agency that refuses to provide foster parent training to those who do not share its Christian beliefs.  A Jewish couple who were denied services sued, along with several other plaintiffs.  A Tennessee statute enacted in 2020 specifically allows faith-based adoption and foster care agencies to refuse to provide services that violate their religious convictions. The complaint (full text) in Rutan-Ram v. Tennessee Department of Children's Services, (TN Chanc. Ct., filed 1/19/2022), alleges that this religious discrimination violates several provisions of the Tennessee state constitution.  Americans United issued a press release announcing the filing of the lawsuit.

5th Circuit Certifies Texas Heartbeat Abortion Case To Texas Supreme Court

In Whole Woman's Health v. Jackson, (5th Cir., Jan. 17, 2022), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, certified to the Texas Supreme Court the question of whether under Texas law, any state officials have authority to take disciplinary action against doctors who violate Texas' Heartbeat Act.  The Act bans abortions if the physician has detected a fetal heartbeat-- usually at around 6 weeks of a pregnancy. The case is on remand from the U.S. Supreme Court (see prior posting), which has previously refused to enjoin enforcement of the Texas law while appeals are under way. (See prior posting.) The ability of Texas state officials to enforce the law in some way was crucial to the Supreme Court's decision that abortion providers could sue the state in a challenge to the law. (See prior posting.)  Judge Higginson dissented from the 5th Circuit's decision to certify the question to the Texas Supreme Court, saying in part:

By granting the defendants’ certification motion, we contravene the Supreme Court’s mandate, effectively telling the Court that its opinion was advisory.

Yahoo News reports on the 5th Circuit's decision.

Certiorari Denied In Virginia Ministerial Residence Tax Exemption Dispute

The U.S. Supreme Court today denied review in Trustees of New Life In Christ Church v. City of Fredericksburg, Virginia,  (certiorari  denied, 1/18/2022), over the dissenting opinion of Justice Gorsuch. In the case, a Virginia state court denied the state's "ministerial residence" tax exemption to a local Presbyterian church because the Youth Ministers living in the home at issue were not ordained clergy and were not listed by the church as one of its primary pastors. (See prior related posting.) The city claimed that this meant they did not qualify as "ministers" under the Presbyterian Church's Book of Church Order, despite the local church's insistence that they do qualify.  Justice Gorsuch, in his opinion dissenting from the denial of certiorari, said in part:

[T]he City continues to insist that a church’s religious rules are “subject to verification” by government officials....

I would grant the petition and summarily reverse. The First Amendment does not permit bureaucrats or judges to “subject” religious beliefs “to verification.”...

This case may be a small one, and one can hope that the error here is so obvious it is unlikely to be repeated anytime soon. But I would correct it....

Courthouse News Service reports on the case.

Court Will Hear Arguments Today In "Christian Flag" Case

The U.S. Supreme Court this morning will hear oral arguments in Shurtleff v. City of Boston. In the case, the U.S. 1st Circuit Court of Appeals, applying the "government speech" doctrine, upheld Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. (See prior posting.) (The flag features a red Latin Cross on a blue background in the upper left portion of an otherwise blank white flag.)  The SCOTUSblog case page has links to amicus briefs, briefs of the parties and other filings in the case. The oral arguments, which begin at 10:00 am EST, will be broadcast live at this link.  When the transcript and recording of the arguments become available later today, I will update this post to link to them.

UPDATE: Here are links to the transcript and audio of today's arguments.

Religious Freedom Day, January 16, 2022

Largely lost in a flood of other developments, yesterday (January 16) was Religious Freedom Day, the anniversary of the adoption of the Virginia Statute for Religious Freedom by the Virginia General Assembly in 1786. President Biden last week issued a Proclamation (full text) officially marking the day.

Virginia Governor Creates Commission To Combat Antisemitism

Virginia's newly-inaugurated Governor Glenn Youngkin has issued an Executive Order (full text) creating a Commission to Combat Antisemitism. According to the Executive Order:

The purpose of this Commission is to study antisemitism in the Commonwealth, propose actions to combat antisemitism and reduce the number of antisemitic incidents, as well as compile materials and provide assistance to Virginia’s public school system and state institutions of higher education in relation to antisemitism and its connection to the Holocaust.

The Commission shall make recommendations to the Governor and General Assembly with the goal of identifying ways to reverse increasing antisemitic incidents in the Commonwealth.

According to a press release from the Governor's office, the Order was one of nine Executive Orders and two Executive Actions taken by Youngkin on Saturday, the day on which he was inaugurated.