Florida Education Department Adopts Two Rules On LGBTQ Concerns

 As reported by the Washington Blade, the Florida Department of Education on Wednesday by a unanimous vote adopted two rules relating to LGBTQ issues.  New Rule 6A-10.086 (full text) provides in part:

If a school board or charter school governing board has a policy or procedure that allows for separation of bathrooms or locker rooms according to some criteria other than biological sex at birth, the policy or procedure must be posted on the district’s website or charter school’s website, and must be sent by mail to student residences to fully inform parents.

Amendments to Rule 6A-10.081 (full text) provides that Florida teachers:

Shall not intentionally provide classroom instruction to students in kindergarten through grade 3 on sexual orientation or gender identity....

Violation of the rule can lead to suspension or revocation of a teacher's certificate. 

Britain's Inquiry Into Child Sexual Abuse Publishes Its Final Report

In Britain yesterday, the Independent Inquiry into Child Sexual Abuse which was established in 2015 under the Inquiries Act 2005 published its Final Report. (Full text).  The Executive Summary says in part:

This report is the final statutory report published by the Independent Inquiry into Child Sexual Abuse (the Inquiry). In accordance with the Terms of Reference, it sets out the main findings about the extent to which State and non-State institutions failed in their duty of care to protect children from sexual abuse and exploitation and makes recommendations for reform. It draws on the Inquiry’s 15 investigations and 19 related investigation reports, the Interim Report of the Independent Inquiry into Child Sexual Abuse and 41 other Inquiry reports and publications. The Inquiry has made 20 recommendations in this report. These final recommendations complement the 87 recommendations contained in the previously published investigation reports (including six which have been restated).

Among the Inquiry's 15 investigations were ones into the Roman Catholic Church in England and Wales and the Anglican Church.

Profs Sue University for Including Caste in Antidiscrimination Policy

Suit was filed on Monday in a California federal district court by two California State University professors challenging the University's inclusion of discrimination on the basis of caste in its Interim Antidiscrimination Policy adopted in January. The complaint (full text) in Kumar v. Koester, (CD CA, filed 10/17/2022) alleges in part:

[T]he Interim Policy seeks to define the Hindu religion as including “caste” and an alleged oppressive and discriminatory caste system as foundational religious tenets. That not only is an inaccurate depiction of the Hindu religion, but the First Amendment to the United States Constitution prohibits California and CSU from defining the contours of Hinduism (or any religion)....

The Interim Policy also singles out only CSU’s Hindu employees, professors and students, as well as those of Indian/South Asian origin. No other Protected Status in the Interim Policy addresses any specific ethnicity, ancestry, religion or alleged religious practice,,,

Plaintiffs seek a determination that the term “caste” as used in the Interim Policy is unconstitutionally vague, and the Interim Policy as drafted violates the rights of Plaintiffs (and similarly situated individuals) under the First and Fourteenth Amendments to the United States Constitution, as well as their rights under the California Constitution.

The Hindu American Foundation issued a press release announcing the filing of the lawsuit.

Biden Calls For Federal Law Protecting Abortion Rights

In a talk (full text) at a political event at the Howard Theater in Washington, D.C. on Tuesday, President Biden called for a federal law protecting abortion rights.  He said in part:

And I’ve said before: The Court got Roe right nearly 50 years ago, and I believe Congress should codify Roe once and for all....

Right now, we’re short a handful of votes.  If you care about the right to choose, then you got to vote.  That’s why, in these midterm elections, it’s so critical to elect more Democratic senators to the United States Senate and more Democrats to keep control of the House of Representatives....

And, folks, if we do that, here is the promise I make to you and the American people: The first bill that I will send to the Congress will be to codify Roe v. Wade....  And when Congress passes it, I’ll sign it in January, 50 years after Roe was first decided the law of the land.,,,

European Commission Holding Conference on Halal and Kosher Slaughter

Jerusalem Post reports that today in Brussels, the European Commission, in partnership with the Council of Europe, the OSCE and the U.N. Commissioner for Equality, will hold a conference on "Freedom of religion with regard to religious slaughter." According to the European Commission:

The conference will bring together representatives of the European Union (EU) Member States and other national authorities, special envoys and coordinators on combating antisemitism and anti-Muslim hatred, representatives of national Jewish, Muslim and other religious communities, international organizations and independent experts.

European Court OK's Company Rule Neutrally Banning Wearing of All Signs of Religious Belief

 In L.F. v. S.C.R.L., EU EDJ, Oct. 13, 2022), the Court of Justice of the European Communities, in a request from Belgium for a preliminary ruling, held that a private company may prohibit employees from wearing all visible signs of political, philosophical or religious belief in the workplace.  This would not constitute direct discrimination on the ground of religion or belief in violation of Council Directive 2000/78 so long as the company's policy covers any manifestation of religious, philosophical or spiritual beliefs without distinction and treats all employees alike by requiring them in a general and undifferentiated way to dress neutrally. Such a rule might constitute indirect discrimination if it had a disparate impact on persons of one religion, but would not if it were objectively justified by a legitimate aim and the means of achieving that aim were appropriate and necessary. The question arose in the context of a company's refusal to employ a Muslim woman as an intern because she insisted on wearing a hijab. The Court issued a press release announcing the decision. Law & Religion UK also has coverage.

Recent Articles of Interest

From SSRN:

• Hershey H. Friedman, Mesmerizing Narratives of the Talmud: In Which God Laughs, Satan Sulks, Elijah Rebukes, and Jesters go to Heaven, (August 25, 2022).
• Taylor Kordsiemon, A Right to Marital Rape? The Immorality of the Dobbs Approach to Unenumerated Rights, (12 HLRe 90 (2022)).
• Robin Fretwell Wilson, Harm, Not Privilege. Review of: John Adenitire A General Right to Conscientious Exemption: Beyond Religious Privilege (Cambridge University Press, 2020), Keele Law Review, Volume 4 (2022) 13-41.
• Katie R. Eyer, Transgender Equality and Geduldig 2.0, (October 7, 2022).
• Yvonne Lindgren, Dobbs v. Jackson Women's Health and the Post-Roe Landscape, (October 4, 2022).

From SmartCILP:

• Early Arguments and Contemporary Thoughts: A Festschrift Honoring Michael J. Perry, Emory Law Journal, Vol. 71, Issue 7 (2022).
• John Paul Kimes, Scandal and Due Process: A Canonical Response to the McCarrick Case, [Abstract], 36 Notre Dame Journal of Law Ethics & Public Policy 237-264 (2022).

European Court: Suspended Prison Sentence For Protest In Catholic Church Violated Rights Of Abortion Rights Activist

In Bourton v. France, (ECHR, Oct. 13, 2022) (full text of decision in French), the European Court of Human Rights in a Chamber Judgment held that a French court's imposition of a suspended one-month prison sentence on a 39-year feminist activist charged with "sexual exposure" violated her rights of freedom of expression under the European Convention on Human Rights. The French court had also ordered defendant to pay damages and costs totaling 3500 Euros.  According to the English language press release from the European Court:

On 20 December 2013 [Eloise Bouton] staged a protest in the church of La Madeleine in Paris, but not during mass, by standing in front of the high altar while exposing her breasts, revealing slogans daubed across her body, and pretending to carry out an abortion using raw beef liver as a prop. Her performance was brief and she left the church when so requested by the choirmaster. The protest received media coverage, about ten journalists having been present....

The purpose of the applicant’s mise en scène had been to convey, in a symbolic place of worship, a message relating to a public and societal debate on the positioning of the Catholic Church on a woman’s right to free disposal of her body, including the right to have an abortion.

In these circumstances, the [European] Court [of Human Rights] took the view that the applicant’s freedom of expression should have been afforded a sufficient level of protection since the content of her message related to a matter of public interest....

The Court reiterated that the imposition of a prison sentence for an offence in the area of political speech would be compatible with freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, as, for example, in the case of hate speech or incitement to violence....

The Court found that the grounds given by the domestic courts had not been sufficient for it to consider that they had weighed up the interests at stake in an appropriate manner and in accordance with the criteria established in its case-law....

Pakistan Agency Creates Unit To Handle Blasphemy Complaints

The News on Sunday reports that on Oct. 6 Pakistan's Federal Investigation Agency announced that it has created a dedicated unit to deal with complaints of blasphemy on social media. The report says in part:

Sources in the FIA say the Agency has inadequate manpower and that many officials in its Cybercrime Wing are contractual employees. The number of complaints lodged with the Wing under various categories runs into tens of thousands, an official said. A majority of these complaints are pending because the staff is overburdened.

Lawyer Saiful Malook who has defended several people from marginalised segments of the society accused of blasphemy says the notification is discriminatory. “Neither a high court nor the FIA on its own can create a dedicated unit that is discriminatory and relates to religious freedom and persecution,” he says.

DC Circuit Hears Oral Arguments From Sikh Marine Enlistees

On Tuesday, the D.C. Circuit Court of Appeals heard oral arguments in Singh v. Berger. (Audio of full oral arguments.) In the case, the D.C. federal district court refused to grant a preliminary injunction to three Sikh Marine recruits who wanted to prevent enforcement of the Marine's uniform and grooming policies during recruit training while their case continues to be litigated. Sikh religious beliefs require plaintiffs to maintain an unshorn beard and hair, wear a turban and wear other religious items. (See prior posting.) PTI reports on the oral arguments.

Christian Counselor Challenges City's Conversion Therapy Ban

Suit was filed yesterday in a Wisconsin federal district court challenging the city of La Crosse's ordinance that prohibits medical and mental health professionals from engaging in conversion therapy with anyone under 18 years of age. The complaint (full text) in Buchman v. City of La Crosse, (WD WI, filed 10/13/2022), alleges that the ban on counseling minors to change their sexual orientation, gender identity, gender expression or behaviors violates free speech and free exercise rights of plaintiff, a licensed counselor who approaches counseling through "a Christ-centered lens". It also alleges that the ban is unconstitutionally vague and violates the Wisconsin Constitution's protection of the right of conscience. The complaint says in part:

The Ordinance thus interferes with Ms. Buchman’s ability to decide matters of faith and doctrine for herself and to then infuse her work with these religious beliefs. It attempts to dictate and influence Ms. Buchman’s resolution of those matters. It forces her to choose between her faith and government penalty.

Wisconsin Spotlight reports on the lawsuit.

Anti-Abortion Sidewalk Counselor Challenges Sign Permit Requirement

Suit was filed this week in a Maryland federal district court alleging that Baltimore's sign permit ordinance violates plaintiff's free speech and free exercise rights. The complaint (full text) in Roswell v. City of Baltimore, (D MD, filed 10/10/2022), seeks a preliminary injunction to prevent the city from requiring plaintiff to obtain permits in order to use A-frame signs when engaging in religiously-motivated sidewalk anti-abortion counseling at a Planned Parenthood facility. Thomas More Society issued a press release announcing the filing of the lawsuit.

Pre-School Teacher Sues After Being Fired For Her Stance On Same-Sex Marriage

A child-care employee who was fired by her employer for refusing to read to her pre-schoolers books that celebrate same-sex relationships has filed suit alleging religious discrimination, wrongful termination, harassment and retaliation. The complaint (full text) in Parisenkova v. Bright Horizons Children's Center, LLC, (CA Super. Ct., filed 10/13/2022), filed in a California state trial court, alleges that plaintiff's Christian religious beliefs prevent her from promoting messages that support same-sex marriage. After an initial informal accommodation, the school's director, who took personal offense at plaintiff's religious beliefs, refused to grant plaintiff a formal religious accommodation.  As a prelude to her dismissal, plaintiff was forced to leave the school building mid-day in extremely hot weather.  Plaintiff was terminated after she refused the requirement that she receive diversity awareness training. Thomas More Society issued a press release announcing the filing of the law suit.

Religious Questioning Of Muslim Travelers By Border Officers Upheld

In Kariye v. Mayorkas, (CD CA, Oct. 12, 2022), three Muslim plaintiffs sued the Department of Homeland Security alleging that border officers routinely and intentionally single out Muslim-American travelers to demand they answer religious questions. The court, in a 71-page opinion in its official format, first dismissed plaintiffs' Establishment Clause challenge. Applying the Supreme Court's test articulated in Kennedy v. Bremerton School District, the court said in part:

The court finds substantial legal authority supporting the government's historically broad authority to implement security measures at the border.... Additionally, the court finds substantial authority holding that maintaining border security is a compelling government interest.

The court rejected plaintiffs' free exercise claim, finding that plaintiffs had not sufficiently alleged a substantial burden on their religious exercise. It additionally concluded that even if there was a substantial burden, officers' questioning was narrowly tailored to advance a compelling governmental interest in protecting borders and preventing potential terrorism.

The court also rejected freedom of association, retaliation, equal protection and RFRA challenges to practices of border officers.

Vaccine Objector Loses Challenge

In Marte v. Montefiore Medical Center, (SD NY, Oct. 12, 2022), a New York federal district court dismissed claims by a former Medical Center employee who sued after the Medical Center refused to provide her a reasonable accommodation when she refused to receive a COVID-19 vaccine which was required for all employees.  The court rejected her Title VII claim saying in part:

Plaintiff does not allege that she informed Defendant that she had a religious objection to the COVID-19 vaccination, or even that Defendant was aware that she has a religious objection to the vaccine; she pleads only that she told her employer she did not want the vaccine and asked for "a reasonable accommodation as defined by law." ... Defendant could not have discriminated against Plaintiff on the basis of her religious beliefs if Defendant was unaware of those beliefs....

Even if Plaintiff had pleaded a prima facie claim for religious discrimination, her argument is foreclosed by the Second Circuit's decision in We The Patriots. Defendant correctly argues that Plaintiff's requested accommodation would qualify as an undue hardship because it required Defendant to violate the law.

The court also rejected her free exercise, equal protection and other challenges.

8th Circuit: City Food Ordinance Did Not Violate Pastor's Free Speech Rights

In Redlich v. City of St. Louis, (8th Cir., Oct. 12, 2022), the U.S. 8th Circuit Court of Appeals affirmed the dismissal of a suit brought by a Christian pastor and his assistant challenging a city ordinance that required a permit to distribute potentially hazardous food. Plaintiffs had previously been cited for distributing bologna sandwiches to hungry people they encountered in St. Louis. They contended that as applied to them, the ordinance violated their free speech rights. The court held that even assuming plaintiffs' actions amounted to expressive conduct, the ordinance furthers a substantial governmental interest and is narrowly tailored to that interest. It said in part:

Appellants would be required to pay a $50 fee for the permit at least two days in advance of their food-sharing activities and notify the City of both the time and place where the food would be distributed. These provisions ensure that health inspectors have an opportunity to determine whether the temporary food establishment is complying with the Ordinance.

Courthouse News Service reports on the decision.

New York Yeshivas Sue Over Substantial Equivalency Guidelines

In New York, a group of yeshivas and two organizations have sued challenging the state Board of Regents recently adopted guidelines implementing NY Education Law §3204(2) which requires instruction in nonpublic schools to be at least "substantially equivalent" to that in public schools in the same city or district. The complaint (full text) in In re Parents for Educational and Religious Liberty in Schools, (Albany County Sup. Ct., filed 10/9/2022), alleges in part:

... [T]he New York State Education  Department... has spent the last half decade seeking to impose greater requirements and heightened oversight on these schools than are imposed on other schools in New York, whether public or private....

First, the New Regulations violate the New York State Administrative Procedures Act ... because the public comment process was a sham.... Here, NYSED received more than 300,000 comments in opposition to the proposed regulations but did not truly consider them and did not make any substantive revisions....

Second, the New Regulations violate SAPA by imposing on yeshivas obligations and restrictions not found in other schools. Only yeshivas ... will be prohibited from offering instruction ... in a student’s home language....

Third, the New Regulations create an impermissible de facto licensing requirement through the review and determination process....

The New Regulations frustrate the Petitioners’ constitutionally protected rights to the free exercise of religion and free speech, and violate their due process rights and right to equal protection. 

Hamodia reports on the lawsuit.

Physician Assistant Sues Hospital That Fired Her Over Treatment Of Transgender Patients

 A suit was filed on Tuesday in a Michigan federal district court by a woman who had worked as a physician assistant for 17 years, but was then fired for refusing, on religious grounds, to refer patients for gender transitioning drugs and procedures and to use pronouns that correspond to a patient's gender identity rather than their biological sex. In a claim denied by the fired employee, it was also claimed she altered template pronouns on medical records.  The complaint (full text) in Kloosterman v. Metropolitan Hospital, (WD MI, filed 10/11/2022), alleges in part:

9. By exhibiting open hostility toward Ms. Kloosterman’s religious beliefs, University of Michigan Health-West officials violated the Free Exercise Clause.... 

10. By accommodating secular preferences while refusing to grant a religious accommodation to Ms. Kloosterman, University of Michigan Health-West’s actions trigger and fail strict scrutiny under the Free Exercise Clause.... 

11. By seeking to compel Ms. Kloosterman to speak biology-obscuring pronouns that would violate her conscience and her medical judgment, as doing so could cause patients to miss potentially life-saving screenings, University of Michigan Health-West also violated the Free Speech Clause.... 

12. When it engaged in the aforementioned actions and fired Ms. Kloosterman, University of Michigan Health-West also violated the Fourteenth Amendment’s Equal Protection Clause, as well as Article I, §§ 2, 4, and 5 of the Michigan Constitution and the Elliott-Larsen Civil Rights Act of 1976....

First Liberty issued a press release announcing the filing of the lawsuit.

Certiorari Denied In Fetal Personhood Case

The U.S. Supreme Court today denied review in Doe v. McKee,  (Docket No. 22-201, certiorari denied 10/11/2022) (Order List). The certiorari petition  asked the Supreme Court to review a decision of the Rhode Island Supreme Court that held unborn fetuses do not have due process and equal protection rights under the U.S. Constitution and do not have standing to challenge Rhode Island's Reproductive Privacy Act which granted the right to abortions consistent with Roe v. Wade. CNN reports on the Court's action. [Thanks to Thomas Rutledge for the lead.]

Suit Challenges Kentucky Abortion Bans As Violating Jewish Religious Beliefs

Suit was filed last Thursday in a Kentucky state trial court by three Jewish women who contend that Kentucky's strict abortion bans violate their religious freedom rights. The complaint (full text) in Sobel v. Cameron, (KY Cir. Ct., filed 10/6/2022), alleges that Kentucky law might be read to make it a capital offense to discard excess embryos created in the process of in vitro fertilization. The complaint alleges in part:

35. Under Jewish law, a fetus does not become a human being or child until birth. Under no circumstances has Jewish law defined a human being or child as the moment that a human spermatozoon fuses with a human ovum.

36. The question of when life begins for a human being is a religious and philosophical question without universal beliefs across different religions....

39. Plaintiff’s religious beliefs demand that they have more children through IVF, yet the law forces Plaintiffs to spend exorbitant fees to keep their embryos frozen indefinitely or face potential felony charges. This dilemma forces Plaintiffs to abandon their sincere religious beliefs of having more children by limiting access to IVF and substantially burdens their right to freely exercise these sincerely held religious belief....

51. Kentucky's contemporary Abortion Law is focused on preservation of ova and blastocysts on the basis of a religious understanding of fetal personhood.....

The complaint alleges that Kentucky abortion laws are void for vagueness and unintelligibility; violate the Kentucky Religious Freedom Restoration Act; and violate the Kentucky Constitution by giving preference to sectarian Christianity and diminishing Plaintiffs' privileges, rights, and capacities on account of their Jewish faith and beliefs. Los Angeles Times reports on the lawsuit.