Suit Says Border Agents Questioned Muslims About Their Religious Practices

Suit was filed yesterday in a California federal district court by three Muslim Americans who claim that they were asked religiously intrusive questions by U.S. Customs and Border Protection agents upon their return from international travel. Among the questions were: “How often do you pray?” “Do you attend mosque?” “Which mosque do you attend?” “Are you Sunni or Shi’a?”  The complaint (full text) in Kariye v. Mayorkas, (CD CA, filed 3/24/2022), contends in part:

Religious questioning such as this violates the U.S. Constitution. It furthers no valid—let alone compelling—government interest, and it is an affront to the First Amendment freedoms of religion and association. Moreover, because Defendants specifically target Muslim Americans for such questioning, they also violate the First and Fifth Amendments’ protections against unequal treatment on the basis of religion. Just as border officers may not single out Christian Americans to ask what denomination they are, which church they attend, and how regularly they pray, singling out Muslim Americans for similar questions is unconstitutional....

 This practice also violates the Religious Freedom Restoration Act.

 Wall Street Journal reports on the lawsuit.

Supreme Court Says Pastor Should Be Allowed To Pray Audibly And Lay Hands On Prisoner Being Executed

In Ramirez v. Collier, (Sup.Ct., March 24, 2022), the U.S. Supreme court in n 8-1 decision held that a death row prisoner was likely to succeed in his RLUIPA lawsuit challenging limits on his pastor's activities in the execution chamber.  The Court held that petitioner is entitled to a preliminary injunction barring Texas from proceeding with his execution without permitting his pastor, during the execution, to lay hands on the prisoner and audibly pray with him. Chief Justice Roberts majority opinion said in part:

First, prison officials say that absolute silence is necessary in the execution chamber so they can monitor the inmate’s condition through a microphone suspended overhead. They say that audible prayer might impede their ability to hear subtle signs of trouble or prove distracting during an emergency.... But respondents fail to show that a categorical ban on all audible prayer is the least restrictive means of furthering their compelling interests....

Second, prison officials say that if they allow spiritual advisors to pray aloud during executions, the opportunity “could be exploited to make a statement to the witnesses or officials, rather than the inmate.” ... But there is no indication in the record that Pastor Moore would cause the sorts of disruptions that respondents fear...

Respondents’ categorical ban on religious touch in the execution chamber fares no better.... Under Texas’s current protocol, spiritual advisors stand just three feet from the gurney in the execution chamber.... A security escort is posted nearby, ready to intervene if anything goes awry.... We do not see how letting the spiritual advisor stand slightly closer, reach out his arm, and touch a part of the prisoner’s body well away from the site of any IV line would meaningfully increase risk.

Justices Sotomayor and Kavanaugh each filed a concurring opinion.  Justice Thomas filed a 23-page dissent, saying in part:

Petitioner John Henry Ramirez stabbed Pablo Castro 29 times during a robbery that netted $1.25. Castro bled to death in a parking lot. Since that day, Ramirez has manufactured more than a decade of delay to evade the capital sentence lawfully imposed by the State of Texas. This Court now affords yet another chance for him to delay his execution. Because I think Ramirez’s claims either do not warrant equitable relief or are procedurally barred, I respectfully dissent.

CNN reports on the decision.

Idaho Governor Signs A Heartbeat Abortion Ban

Yesterday, Idaho Governor Brad Little signed Senate Bill 1309, the Fetal Heartbeat Preborn Child Protection Act (full text). While news media report that the law is modeled on Texas SB8, there are differences between the two laws. Like the Texas law, SB 1309 prohibits abortions after a fetal heartbeat can be detected-- generally 6 weeks, and provides for private enforcement. However the Idaho law has an exception for rape or incest (if reported to law enforcement authorities) or for medical emergencies. The Texas law only excepts medical emergency. Under the Idaho law, a private enforcement action may be brought only by the father, grandparent, sibling, aunt or uncle of the pre-born child. They may sue for actual damages plus statutory damages of $20,000. Under the Texas law, anyone (other than a state or local official) may sue. Under the Idaho law, criminal penalties and license suspensions for health care professionals who violate the law are triggered "thirty (30) days following the issuance of the judgment in any United States appellate court case in which the appellate court upholds a restriction or ban on abortion for a pre-born child because a detectable heartbeat is present on the grounds that such restriction or ban does not violate the United States constitution."

Mandatory LGBTQ Anti-Discrimination Training Did Not Violate Title VII

In Zdunski v. Erie 2-Chautauqua-Cattaraugus BOCES, (WD NY, Feb. 16, 2022), a New York federal district court dismissed Title VII and state law religious discrimination claims brought by Raymond Zdunski, an account clerk at the Board of Cooperative Educational Services.  BOCES required all of its employees to attend LGBTQ anti-discrimination training after one of its employees requested accommodation for gender transition.  Zdunski refused, contending that the training was aimed at changing his religious beliefs on gender and sexuality and that attending would violate his religious beliefs. He was fired for insubordination. The court said in part:

Mr. Zdunski has not presented any evidence that the trainings were directed toward him or other Christian employees in a discriminatory manner....

Here, Mr. Zdunski's proposed accommodation—that he be excused from the mandatory LGBTQ anti-discrimination training—amounts to more than a de minimis cost to his employer's business operations. BOCES is bound by New York State law to provide annual anti-discrimination trainings for all employees and to maintain "an environment free of discrimination and harassment." See N.Y. Educ. Law Tit. 1 Art. 2 §§ 10, 13. Allowing Mr. Zdunski's requested accommodation to forego anti-discrimination trainings would have put his employer in the position of violating the training requirements set forth in DASA. An accommodation that would require an employer to run afoul of state law constitutes a substantial hardship and would be more than a de minimis cost to the employer.

No RLUIPA Or Free Exercise Violation In Denying Sewer Service To Proposed Church Building

In Canaan Christian Church v. Montgomery County Maryland, (4th Cir., March 22, 2022), the U.S. 4th Circuit Court of Appeals held that Montgomery County did not violate a church's rights under RLUIPA or the 1st Amendment when it refused to extend public sewer lines to properties on which the church proposed to construct a new larger building for its congregation. The land use and water plans covering the properties provided that no public sewer service would be permitted (except for public health requirements). The church's purchase contracts for the properties were contingent on the county's approval of sewer service. The court said in part:

Because Appellants were well aware of the difficulties in development of the Property when they entered into the contract to purchase the Property, they could not have a reasonable expectation of religious land use. Further, the land use restrictions are rationally related to the government’s interest in protecting the region’s watershed.

A concurring opinion by Judge Richardson took issue with some of the analysis in the majority opinion.

U.S. Imposes New Sanctions On China For Repression Of Ethnic And Religious Minorities

On Monday, Secretary of State Anthony Blinken announced (full text of press statement) that the U.S. is imposing new sanctions on Chinese officials for human rights violations. He said in part:

The Department of State is taking action against PRC officials for their involvement in repressive acts against members of ethnic and religious minority groups and religious and spiritual practitioners inside and outside of China’s borders, including within the United States....

Today’s action imposes visa restrictions on PRC officials who are believed to be responsible for, or complicit in, policies or actions aimed at repressing religious and spiritual practitioners, members of ethnic minority groups, dissidents, human rights defenders, journalists, labor organizers, civil society organizers, and peaceful protestors in China and beyond....

We call on the PRC government to end its ongoing genocide and crimes against humanity in Xinjiang, repressive policies in Tibet, crackdown on fundamental freedoms in Hong Kong, and human rights violations and abuses, including violations of religious freedom, elsewhere in the country.

CBS News reports on the State Department's action.

Indiana and Utah Governors Veto Bans Of Transgender Females On Sports Teams

Indiana Governor Eric Holcomb on Monday vetoed HEA 1041 (full text) which bans transgender females from competing on female interscholastic athletic teams.  In his veto letter (full text), the Governor said in part:

[T]he presumption of the policy laid out in HEA 1041 is that there is an existing problem in K-12 sports in Indiana that requires further state government intervention. It implies that the goals of consistency and fairness in competitive female sports are not currently being met. After thorough review, I find no evidence to support either claim even if I support the overall goal.

AP reports on the governor's action.

Meanwhile, yesterday Utah Governor Spencer Cox vetoed H.B.11 (full text) which similarly prohibited transgender females from competing on female interscholastic athletic teams. The bill provided that if this ban was struck down by the courts, a School Activity Eligibility Commission would be created to determine the eligibility for gender-specific teams of students who are undergoing gender transition. The Commission would establish a baseline range of physical characteristics for different sports and ages to use in making its determinations.

Governor Cox issued a lengthy and detailed veto letter (full text), which reads in part:

Because the bill was substantially changed in the final hours of the legislative session with no public input and in a way that will likely bankrupt the Utah High School Athletic Association and result in millions of dollars in legal fees for local school districts with no state protection, and for several other reasons below, I have chosen to veto this bill....

Four kids and only one of them playing girls sports. That’s what all of this is about. Four kids who aren’t dominating or winning trophies or taking scholarships. Four kids who are just trying to find some friends and feel like they are a part of something. Four kids trying to get through each day. Rarely has so much fear and anger been directed at so few. I don’t understand what they are going through or why they feel the way they do. But I want them to live. And all the research shows that even a little acceptance and connection can reduce suicidality significantly. For that reason, as much as any other, I have taken this action in the hope that we can continue to work together and find a better way. If a veto override occurs, I hope we can work to find ways to show these four kids that we love them and they have a place in our state.

AP reports on the governor's action, and reports that legislative leaders plan to reconvene on Friday to consider a veto override.  The Governor has issued a Proclamation calling a special session of the legislature for Friday to consider an indemnification provision for the Utah High School Athletic Association and local school districts that will be sued.

UPDATE: As reported by AP, on March 25, the Utah legislature overrode the governor's veto.

UPDATE: As reported by WYFI, on May 24 the Indiana legislature overrode the governor's veto. The ACLU has filed suit challenging the law.

U.S. Labels Burmese Military's Treatment Of Rohingya As Genocide

In a speech (full text) yesterday at the United States Holocaust Memorial Museum, Secretary of State Anthony Blinken announced that the United States has concluded that Burma's actions against the Rohingya constitute genocide.  He said in part:

One of my responsibilities as Secretary is determining, on behalf of the United States, whether atrocities have been committed.  It’s an immense responsibility that I take very seriously, particularly given my family’s history.

Beyond the Holocaust, the United States has concluded that genocide was committed seven times.  Today marks the eighth, as I have determined that members of the Burmese military committed genocide and crimes against humanity against Rohingya.

In Settlement, Michigan Allows Catholic Charities To Refuse Child Placements With Same-Sex Or Unmarried Couples

In Catholic Charities West Michigan v. Michigan Department of Health and Human Services, (ED MI, March 21, 2022), a Michigan federal district court approved a settlement agreement under which the state of Michigan will allow Catholic Charities, operating under contracts with the state, to refuse to place children for adoption or foster care with same-sex or unmarried couples and refuse to conduct home evaluations for same-sex or unmarried couples. The parties' Agreement says in part:

[A]s a result of the Supreme Court’s decision in Fulton v. City of Philadelphia, 593 U.S. ___ (2021), the Parties agree that Plaintiff would likely prevail on Count V (Free Exercise) of the Complaint.

The state also agreed to pay plaintiffs' attorneys' fees in the amount of $250,000. ADF issued a press release announcing the settlement.

Mahr Did Not Set Upper Limit Of Amounts Awardable To Wife In Divorce

In Parbeen v. Bari, (FL App., March 16, 2022), a Florida state appellate court held that a traditional Islamic prenuptial agreement-- a Mahr-- in setting an amount payable upon divorce did not eliminate the wife's right to temporary support, alimony, equitable distribution of property and attorneys' fees under Florida law. While the Mahr's secular terms are enforceable under Florida contract law, the Mahr did not set the maximum amount payable to the wife. [Thanks to Volokh Conspiracy via Steven H. Sholk for the lead.]

DC Minor Consent Law Violates Parents' Free Exercise Rights

In Booth v. Bowser, (D DC, March 18, 2022), a D.C. federal district court granted a preliminary injunction on free exercise grounds against the Minor Consent for Vaccinations Act Amendment of 2020 which allows minors who are at least 11 years old to consent to vaccinations without parental approval. The court concluded that the Act burdens religious practice, explaining:

If a minor’s parent has filed a religious exemption for the child and the child elects to get a vaccine anyway, a healthcare provider must leave blank part 3 of the Certificate. Id. Part 3 is the child’s immunization record. This serves to obfuscate the child’s vaccination from his parents. But the MCA does not require providers to leave blank part 3 of the Certificate for students whose parents filed a medical exemption.

Washington Post reports on the decision.

Supreme Court GVR's Title VII Reasonable Accommodation Appeal

Yesterday in Hedican v. Walmart Stores East, (Docket No. 21-648, gvr'd 3/21/2022), (Order List), the U.S. Supreme Court granted certiorari, summarily vacated the judgment below and remanded the case to the Seventh Circuit for further consideration in light of Cameron v. EMW Women’s Surgical Center. In the Walmart case, the 7th Circuit held that accommodating the scheduling need of a Seventh Day Adventist would impose an undue burden on Walmart. After that decision, Edward Hedican, on whose behalf the EEOC had sued, sought to intervene in order to file a petition for certiorari. The Seventh Circuit held that the motion to intervene was untimely. Hedican's petition for certiorari said that it presents identical questions to Cameron.

Bidens Extend Greetings For Nowruz

Yesterday, President Biden and Jill Biden issued a statement extending New Years greetings for Nowruz. The Statement (full text) reads in part:

Jill and I extend our best wishes to all who are celebrating Nowruz in the United States and around the world today — including in Iran and across the Middle East, in Central and South Asia, in the Caucuses, and in Europe....

That spirit of new beginnings and the joy of Nowruz is reflected in our own Haft-Sin table at the White House, representing our hopes for the new year.

Certiorari Denied In Dispute Over Anti-Discrimination Exemption for Religious Employers

The U.S. Supreme Court today in Seattle's Union Gospel Mission v. Woods, (certiorari denied, March 21, 2022) denied review, but Justice Alito, joined by Justice Thomas, filed an opinion saying in part:

The Washington Supreme Court’s decision may warrant our review in the future, but threshold issues would make it difficult for us to review this case in this posture.

At issue was the Mission's refusal on religious grounds to hire a bisexual male who was in a same-sex relationship as a staff attorney for its legal clinic.  Justice Alito said in part:

Because of such federal statutory exemptions and their state analogs, we have yet to confront whether freedom for religious employers to hire their co-religionists is constitutionally required....

But in this case the confrontation may be inevitable, as it involves an employment dispute between a religious employer and an applicant who was not hired because he disagreed with that employer’s religious views. The Washington Supreme Court expressly declined to apply its state employment law exemption for religious entities to this dispute. Instead, it held that if that state exemption applied to employment decisions beyond those involving church ministers, such an exemption would violate the Washington State Constitution’s protection for other individual rights and could become a “license to discriminate.”

USCIRF Warns of Religious Oppression By Russians In Ukraine

Last week, the U.S. Commission on International Religious Freedom issued a press release warning that Russia will likely target religious communities across Ukraine with violence and oppression. The release reads in part:

The Russian government uses distortions of religious history to support its claim that Ukrainians have no independent ethno-religious identity or state tradition,” said USCIRF Commissioner James W. Carr. “In 2019, the Ecumenical Patriarch of Constantinople recognized an independent Orthodox Church of Ukraine, allowing many parishes previously under the jurisdiction of Moscow to sever those ties in a move that infuriated Russian nationalist sentiments. These parishes and their leadership are in jeopardy if Russian control expands.”...

“In the areas of Ukraine already occupied by Russia in 2014, we have seen the Russian government use baseless charges of religious extremism and terrorism to silence dissent, justify endless raids and mass arrests, and close religious institutions that do not conform to its narrow interpretation of ‘traditional’ religion,” said USCIRF Commissioner Khizr Khan. “Indigenous Crimean Tatar Muslims—who oppose the Russian occupation of their homeland—are routinely charged with terrorism based on their ethno-religious identity rather than any substantive evidence. Many of these individuals receive prison sentences of up to 20 years. 

New York Releases New Proposed Curriculum Rules For Nonpublic Schools

On March 10, the New York Education Department announced the release of the third version of Proposed Regulations (full text) to assure substantially equivalent instruction for non-public school students. According to Hamodia:

These regulations, like the those previously proposed, require periodic reviews of every nonpublic school by their LSA (local school district or authority).

Where they differ is that they offer a few paths for a nonpublic school to avoid those reviews, at least initially. One such path is “registration” — which is the technical term for a high school that administers the Regents examinations. Another is “accreditation” by an agency that is approved by the State Education Department....

Our analysis is that all of the non-Jewish private schools will be exempt from LSA reviews while a majority of yeshivos will not be exempt. As a result, these regulations governing the substantial equivalency reviews by LSAs will be applied exclusively at yeshivos.

Churches Can Move Ahead On Damage Claims Against County For Its COVID Orders

In Calvary Chapel San Jose v. Cody, (ND CA, March 18, 2022), two churches and their pastors sued the state of California and Santa Clara County over their COVID orders. As explained by the court:

Beginning in March 2020, both the State and the County issued emergency orders that instituted capacity limits for certain types of facilities, restricted the practice of certain activities (including singing and chanting), and required individuals to wear masks in many situations....

[Plaintiffs alleged] that the emergency orders imposed harsher restrictions on churches than on other institutions. When Calvary Chapel admittedly defied those orders, Plaintiffs allege that the County sent threatening letters to the church’s bank and levied against it millions of dollars in fines for the violations. Plaintiffs bring nine claims, alleging violations of their First, Eighth, and Fourteenth Amendment rights under the Federal Constitution, violations of the California Constitution, and a violation of California’s Bane Act.

The court granted the state of California's motion to dismiss, finding that plaintiffs' claims for injunctive and declaratory relief are moot, and that any claim for damages is barred by the 11th Amendment. However damage claims against the county were allowed to move forward. The court concluded that plaintiffs had adequately plead free exercise, freedom of assembly, equal protection, and excessive fines claims.

Recent Articles of Interest

From SSRN:

• Muhammad Munir, The Role of Shari‘a in the Legal System of Pakistan, (January 16, 2022).
• Donna M. Gitter, First Amendment Challenges to State Vaccine Mandates: Why the U.S. Supreme Court Should Hold That the Free Exercise Clause Does Not Require Religious Exemptions, 71 Am. U. L. Rev. (2022, Forthcoming).
• Robert K. Vischer, Christian Nationalism and the Rule of Law, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 22-18 (2022).
• Gregory C. Sisk & Michael Heise, Where to Place the “Nones” in the Church and State Debate? Empirical Evidence from Establishment Clause Cases in Federal Court, (St. John's Law Review , Vol. 96, No. 3, 2022).
• Patricia Wiater, Not Who but What Can Hold Human Rights? Companies and Nature as Subjects of Human Rights Protection, (December 18, 2021).
• Emad H. Atiq, Reasonable Moral Doubt, (97 N.Y.U. Law Review (Forthcoming 2022)).
• Rachel Tomlinson Dick, Play Like A Girl: Bostock, Title IX's Promise, and the Case for Transgender Inclusion in Sports, 101:1 Neb. L. Rev. (2022 Forthcoming)).

From SmartCILP and elsewhere:

• Brett A. Geier, Funding God's Schools—A Legal Analysis of Appropriating Public Dollars to Parochial Schools: Does Michigan's Latest Legislation Violate the Separation of Church and State?, [Abstract], 49 Journal of Law & Education 285-338 (2020).
• Journal of Law & Religion, Volume 37, Issue 1, January 2022.

Court Clerk Violated Rights Of Same-Sex Couples

In Ermold v. Davis, (ED KY, March 18, 2022), a high-profile case that has been pending since 2015, a Kentucky federal district court held that Rowan County Clerk Kim Davis violated the constitutional rights of two same-sex couples when she refused, on religious grounds, to issue them marriage licenses. Rejecting Davis' claim of qualified immunity, the court said: "Davis did not make a mistake. Rather, she knowingly violated the law."  Allowing plaintiffs to move ahead with their civil rights claim, the court said in part:

Ultimately, this Court’s determination is simple—Davis cannot use her own constitutional rights as a shield to violate the constitutional rights of others while performing her duties as an elected official.

The court said that a jury should decide whether plaintiffs are entitled to compensatory and punitive damages. AP reports on the decision. [Thanks to Scott Mange for the lead.] [UPDATED]

New Washington State Law Protects Abortion Rights

As reported by MyNorthwest, on Thursday, Washington Governor Jay Inslee signed HB1851 (full text) protecting the right to abortion before viability of the fetus or to protect the life or health of the pregnant individual.  It provides in part:

The state shall not penalize, prosecute, or otherwise take adverse action against an individual based on their actual, potential, perceived, or alleged pregnancy outcomes. Nor shall the state penalize, prosecute, or otherwise take adverse action against someone for aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent.

The new law also provides in part in its statement of policy:

Although the abortion rights movement has historically centered on women in our advocacy, that must no longer be the case and it is critical that we recognize that transgender, nonbinary, and gender expansive people also get pregnant and require abortion care.

Consistent with this, references to "woman" in the state's abortion laws were changed to "pregnant individual".