National Motto in Public Schools Again Upheld

 In JLF v. Tennessee State Board of Education, (MD TN, Oct. 27, 2022), plaintiff asked a Tennessee federal district court to reconsider its prior holding that display of the national motto "In God We Trust" in a public charter school lobby did not violate the Establishment Clause. Plaintiff argued that the U.S. Supreme Court's holding in Kennedy v. Bremerton School District which rejected the Lemon test and adopted the Historical Practice test for Establishment Clause cases constitutes an intervening change in controlling law. However, the court denied plaintiff's motion to reconsider, saying in part:

Kennedy has no effect on the court’s previous ruling, because the court did not rely on Lemon to reject the plaintiff’s Establishment Clause claim and, instead, considered the national motto in its historical context to conclude that its posting in public schools does not violate the Establishment Clause.

Recent Articles and Books of Interest

 From SSRN:

• Andrew M. Koppelman, The Emerging First Amendment Right to Mistreat Students, (Case Western Law Review, Forthcoming).
• Ana Maria Celis Brunet & Jorge Barrera-Rojas, Erosion of Religious Freedom in Latin America: Extreme Secularism and Deinstitutionalization as a Path to a Future Religious Persecution, (Notre Dame Law Review Reflection 2022).

From SmartCILP and elsewhere:

• Anna Rodriguez, Culture War Politics & the Rise of Religious Exemptions against Reproductive Health Access: Pitting Patients against Religious Freedom Is a Losing Game, 25 Journal of Gender Race & Justice 1-44 (2022).
• Jeremy Schwartz & Jessica Priest, Churches are breaking the law and endorsing in elections, experts say. The IRS looks the other way, (Texas Tribune- Pro Publica Investigative Unit, Oct. 30, 2022).

Recent and Forthcoming Books of Interest:

• Andrew I. Port, Never Again-- Germans and Genocide after the Holocaust, (Harvard University Press, May 2023).
• Robert Hutchinson, After Nuremberg-- American Clemency for Nazi War Criminals, (Yale University Press, Oct. 2022).

Denial of Jury Instruction on Defendant's Religious Exercise Is Upheld

In United States v. Dickey, (7th Cir., Oct. 28, 2022), the U.S. 7th Circuit Court of Appeals upheld a trial court's refusal to give a jury instruction sought by a criminal defendant who was the leader of her own church, Deliverance Tabernacle Ministry, who was convicted of wire fraud and forced labor.  According to the court:

[T]hrough her proselytizing, Dickey groomed vulnerable victims and forced them to disavow their families, live in the church, and work multiple full‐time jobs. The victims would then give Dickey all their wages, which she would keep for herself.... If someone disobeyed, Dickey threatened them with violence and required them to be homeless until she considered them redeemed. All told, her scheme netted $1.5 million, most of which came from DTM members. She spent over $1 million on personal expenses, such as travel, rental and vacation properties, and luxury hotels....

Dickey wanted the jury instructed as follows:  

You should not consider the ways in which the Defendant exercised or practiced her religion in determining whether she is guilty of these charges. All individuals have a right to the free exercise of religion.  

Her proposed jury instruction failed at the outset because it is not an accurate statement of the law. Dickey’s proposed instruction would have excused her criminal conduct based on her religious assertions. That broad interpretation finds no support in the caselaw. To the contrary, neutral laws of general applicability are consistent with the First Amendment.

Suit Over Teaching 1st Graders About Transgender Topics Moves Forward

In Tatel v. Mt. Lebanon School District, (WD PA, Oct. 27, 2022), a Pennsylvania federal district court allowed parents of first graders to move ahead with their due process, equal protection and free exercise claims against a teacher who has a transgender child for teaching their students about transgender topics over parental objections. It also permitted plaintiffs to move ahead against school administrators, the school board and the school district   The court summarized its decision, saying in part:

[T]he factual allegations in the complaint present plausible claims that Parents have fundamental constitutional rights (pursuant to Substantive and Procedural Due Process under the Fourteenth Amendment and the First Amendment Free Exercise clause) that were violated by a public school teacher, over the Parents’ objections and without notice and opt out rights, when the teacher promoted her own agenda to their first grade children about gender dysphoria and transgender transitioning, including showing videos or reading books about those topics, telling the children that the Parents may be wrong about the child’s gender, telling a child she would never lie (implying the parents may be lying about the child’s identity), telling the children to keep the discussions about transgender topics secret, and grooming a student to become a transgender child. The Equal Protection and familial privacy claims asserted by the Plaintiffs are plausible, but will benefit from further factual development. 

A claim based on the children's privacy rights was dismissed without prejudice.

Scottish Court Awards Damages for Franklin Graham's Cancelled Event

 In Billy Graham Evangelistic Association v. Scottish Event Campus Limited, (Glascow Sheriff's Ct., Oct. 24, 2022), a trial court in Scotland concluded that a large arena in Scotland whose majority owner is the city of Glascow violated the Equality Act when it cancelled an appearance by evangelist Franklin Graham because of concern that he might make homophobic and Islamophobic comments during his appearance. The court awarded Graham's organization damages equivalent to $112,000(US). The court said in part:

The event was cancelled because of (a) the religious or philosophical beliefs of the pursuer and Franklin Graham as viewed by the defender and (b) the reaction by others to the religious or philosophical beliefs professed by the pursuer and/or Franklin Graham. Those objectors had included the defender’s principal shareholder, its sponsor, objectors on social media, some press, an MSP and persons representing contrasting religious views.

(See prior related posting.) Charlotte Observer and BBC News report on the decision.

Prof Who Criticized Native American Grave Repatriation Laws Can Move Ahead with Retaliation Suit

In Weiss v. Perez, (ND CA, Oct. 19, 2022), a California federal district court allowed a tenured professor of physical anthropology at San Jose State University to move ahead against most of the defendants she named in a lawsuit alleging that the University has retaliated her against because of her opposition to repatriation of Native American remains.  In a book that Prof. Elizabeth Weiss co-authored that was published in 2020, she argued that the Native American Graves Protection and Repatriation Act and the California Native American Graves Protection and Repatriation Act "undermine objective scientific inquiry and violate the Establishment Clause of the United States Constitution by favoring religion over science." She expressed similar views in an op-ed and on Twitter.  Weiss claims that because of her speaking on this issue, the University has interfered with her research and limited her professional activities in a number of ways that have reduced her responsibilities and damaged her professional reputation. The Art Newspaper reports on the decision.

Kroger Settles Religious Accommodation Suit With EEOC

As reported by HR Dive, the EEOC announced yesterday that it has reached a settlement in a religious discrimination suit it had filed against a Conway, Arkansas Kroger store for failing to accommodate two employees who refused to wear the company's apron which features a four-color heart symbol. Kroger developed the symbol as part of a campaign emphasizing the company's four service-based commitments. The employees insisted that the symbol promotes the LGBT community which the employees' religious beliefs preclude them from doing. (See prior posting.) Under the settlement, Kroger will pay each employee $20,000 in back pay plus $52,000 each in additional damages.  Another $36,000 in damages is apparently for attorneys' fees.  Kroger has also agreed to create a religious accommodation policy and will give additional religious discrimination training to store manage­ment.

Today Is International Religious Freedom Day

Today is International Religious Freedom Day, marking the 24th anniversary of the signing of the International Religious Freedom Act of 1998. Statements marking the day have been issued by the U.S. Commission on International Religious Freedom and the U.S. State Department.

EEOC Sues Over Refusal to Accommodate First Responders' Need to Wear Beards

The EEOC announced yesterday that it has filed a Title VII and ADA suit against Global Medical Response, Inc. and American Medical Response, Inc. which operate one of the largest medical transport companies in the country. The suit alleges that the companies have refused to accommodate employees in EMT and paramedic positions who wish to wear facial hair for religious reasons or because of medical conditions. The companies contend that facial hair prevents respirators from fitting properly, but the EEOC says that the companies should have accommodated the religious and medical needs of employees by allowing them to wear the type of respirators that would have allowed them to maintain beards.

Brooklyn Yeshiva Will Pay Additional $5 Million In Penalties for Lunch Program Fraud

The U.S. Attorney's Office for the Eastern District of New York announced on Monday that Central United Talmudic Academy, a yeshiva in Brooklyn, has entered a three-year deferred prosecution agreement under which it has agreed to pay $5 million in penalties for conspiracy to commit wire fraud.  This is in addition to $3 million in restitution it has already paid. The Announcement describes "several overlapping frauds" to which CUTA has admitted, saying in part:

According to admissions in the statement of facts and other public documents, between 2014 and 2016, CUTA received more than $3.2 million in reimbursement for a meal program that purported to feed students of the yeshiva.  The program was almost entirely fictitious.  Rather than feed its children, the School diverted the funding, including to subsidize parties for adults. To commit the crime, the School fabricated records and made dozens of sworn misrepresentations to government agencies.

During the investigation into the fictitious meal program, the investigative team uncovered evidence of other fraudulent conduct by the School and its employees.  In addition to the program fraud noted above, this included various payroll practices that enabled the School’s employees to commit benefit and tax fraud....

By underrepresenting its employees’ income, CUTA enabled its employees to obtain various public benefits—including health care and childcare—that would not have been available if the employees honestly reported their income.

Officials of the school have previously pleaded guilty and been sentenced for fraud. The Announcement was also posted in Yiddish on the website of the U.S. Attorney's Office. Gothamist reports on the agreement.

Buffalo Catholic Diocese Reaches Settlement With New York AG In Suit Over Handling of Sex Abuse Claims

The Catholic Diocese of Buffalo announced yesterday in a press release and a Letter to the Faithful that it has reached a settlement with the New York Attorney General in the suit brought against it and two of its former bishops alleging that they mishandled complaints of sexual abuse of minors and vulnerable adults. (See prior posting.) The provisions of the Stipulated Final Order (full text) in People of the State of New York v. Diocese of Buffalo, (SD NY, Oct. 24, 2022) were described by Bishop Michael Fisher in part as follows:

The settlement that the Diocese and the New York Attorney General have agreed to confirms that the rigorous policies and protocols the Diocese has put in place over the past several years are the right ones to ensure that all young people and other vulnerable persons are safe and never at risk of abuse of any kind by a member of the clergy, diocesan employee, volunteer, or member of a religious order serving in the Diocese of Buffalo.  At the same time, we have strengthened our Safe Environment policies with the Priest Supervision Program which I implemented in June of last year to account for priests removed from active ministry, and with the additional appointment of a new Child Protection Policy Coordinator. We hope that these initiatives, along with our commitment to producing an additional detailed annual compliance audit by an independent auditor, will provide further evidence of our commitment to the level of accountability and transparency that all Catholic faithful and the broader public rightly deserve and require.

Certiorari Filed in Challenge to Arkansas Anti-BDS Law

 A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Arkansas Times, LP v. Waldrip, (Sup. Ct., filed 10/20/2022). In the case, the U.S. 8th Circuit Court of Appeals sitting en banc, in a 9-1 opinion, upheld against a free speech challenge Arkansas' law requiring public contracts to include a certification from the contractor that it will not boycott Israel. (See prior posting.) ACLU issued a press release announcing the filing of the petition for review.

Yeshiva University Creates New LGBTQ Student Group Amid Litigation

Yeshiva University, which is embroiled in litigation over whether it must recognize an LGBTQ student group, YU Pride Alliance, yesterday announced that it has approved a new club for undergraduate LGBTQ students "that presents an approved traditional Orthodox alternative to YU Pride Alliance." Known as Kol Yisrael Areivim Club, the new organization is described by the University:

This newly founded undergraduate student club, which emerges from Yeshiva’s principles and its students’ interest for a club under traditional Orthodox auspices, was approved by the Administration, in partnership with lay leadership, and endorsed by senior Roshei Yeshiva. It also reflects input and perspectives from conversations between Yeshiva’s rabbis, educators, and current and past undergraduate LGBTQ students. The club will provide students with space to grow in their personal journeys, navigating the formidable challenges that they face in living a fully committed, uncompromisingly authentic halachic life within Orthodox communities. Within this association students may gather, share their experiences, host events, and support one another while benefiting from the full resources of the Yeshiva community – all within the framework of Halacha – as all other student clubs.

The University said it also wants to strengthen its support systems for LGBTQ students. 

YU Pride Alliance issued a response to the University's announcement, calling it a "desperate stunt" by the University, saying in part:

The YU sham is not a club as it was not formed by students, is not led by students, and does not have members; rather it is a feeble attempt by YU to continue denying LGBTQ students equal treatment as full members of the YU community.

Both sides say the current litigation will continue. The Forward reports on these developments.

Today Is Diwali; NYC Schools To Recognize It

Today is Diwali, the Hindu Festival of Lights which is also celebrated by some Jains, Sikhs and Buddhists. As reported by CNN, last Thursday New York City Mayor Eric Adams announced that starting next year, Diwali will be a public school holiday in New York City.  In order to keep the same number of school days in the academic year, state legislation has been introduced to allow New York City public schools to no longer celebrate Anniversary Day as a holiday. Anniversary Day (also known as Brooklyn-Queens Day) is variously described as celebrating the opening of the first Protestant Sunday School on Long Island or the founding of the Brooklyn Sunday School Union in 1816.

UPDATE: Here is President Biden's statement sending greetings for a happy Diwali.

State's Removal of 16-Year-Old Transgender Child from Parents' Home Did Not Violate Their Free Exercise Rights

In In re A.C. (Minor Child), (IN App., Oct. 21, 2022), an Indiana state appeals court upheld a trial court's order removing from the home a 16-year old transgender child who suffered from an untreated eating disorder and who was emotionally abused because of their parent's unwillingness to accept their transgender identity. The parents testified that they could not affirm their child's transgender identity or use the child's preferred pronouns because of their religious beliefs.  In rejecting the parents' Free Exercise claims, the court said in part:

[T]he Dispositional Order was based on Child’s medical and psychological needs and not on the Parents’ disagreement with Child’s transgender identity....

Even if the Parents were able to demonstrate that the Dispositional Order imposes a substantial burden on their religious freedom, their claim that Child’s continued removal from the home violates the Free Exercise Clause would fail....  [P]rotecting a child’s health and welfare is well recognized as a compelling interest justifying state action that is contrary to a parent’s religious beliefs.

The court also held that the trial court's order requiring the parents to refrain from discussing Child’s transgender identity during visitation does not violate the parents' free speech rights.

Recent Articles of Interest

From SSRN:

• Jeffrey A. Brauch, Human Germline Editing and a Christian View of Human Nature, (August 25, 2022).
• Ira P. Robbins, The Obsolescence of Blue Laws in the 21st Century, (Stanford Law & Policy Review, Vol. 33, No. 2, 2022).
• Nathan B. Oman, The Development of Modern Latter-day Saint Marriage Rules (July 12, 2022).
• Nathan B. Oman, "Time, Eternity, and Real Estate: Hilton v. Roylance, Mormon Law in Secular Court, and the Opacity of Religion", (July 12, 2022).
• Rebecca Aviel & Wiley Kersh, The Weaponization of Attorney's Fees in an Age of Constitutional Warfare, (Yale Law Journal, Forthcoming).
• Stephen G. Gilles, What Does Dobbs Mean for the Constitutional Right to a Life-or-Health-Preserving Abortion?, (Mississippi Law Journal, Vol. 92, 2022).
• Frank G. Colella, Incorporation by Reference Nixed a Charitable Deduction for Art, (Tax Notes Federal, Vol. 177, No. 1, p. 35 (Oct. 3, 2022)).

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

• Dhruva Gandhi, Religious Discrimination under the Indian Constitution: Unpacking the Contents of Religion, (Indian Journal of Constitutional Law, 2022).
• Laetitia-Ann Greeff, A Critical Analysis of Parental Corporal Punishment: A Call for Legislative Reform, (October 10, 2022).
• Brandon Reece Taylorian, How Do Governments Use Recognition and Registration to Control Religion, (August 18, 2022).
• Latifatul Fajriyyah & Alfitri, Hearsay Evidence Admissibility: Due Process and Evidentiary Rules in Muslim Marriage Legalization (Isbat Nikah), (Fiat Justisia Jurnal Ilmu Hukum 16, no. 3 (2022): 269-296).
• Ioanna Tourkochoriti, The Constitutional Politics of Religion, (Mark Tushnet and Dimitry Kochenov eds., Research Handbook on the Politics of Constitutional Law (Edward Elgar, 2023), Forthcoming).
• Yulia Ioffe & Hedi Viterbo, Homophobia Disguised as Children’s Rights in Russia’s Constitutional Referendum, (VerfBlog, 2020/6/29).
• Imran A. Nyazee, Foundations of Article 62(1)(f) in Islamic Law (Being Sadiq and Ameen), (October 6, 2022).
• Lucas Lixinski, Religious Heritage in International Law: Nationalism, Culture, and Rights,  (64(1) Pravovedenie 138-155 (2020)).

NY Gun Ban at Places of Worship Violates 2nd Amendment

In Hardaway v. Nigrelli, (WD NY, Oct. 20, 2022), a New York federal district court issued a temporary restraining order barring enforcement of the provision in New York law that prohibits possession of firearms at "any place of worship or religious observation." The suit was filed by two clergy who allege that as leaders of their churches they want to carry firearms on church premises to keep the peace. The court concluded that the state restriction violates the Second Amendment, saying in part:

Here, the state cites to a handful of enactments in an attempt to meet its "burden" to demonstrate a tradition of accepted prohibitions of firearms in places of worship or religious observation.... The notion of a "tradition" is the opposite of one-offs, outliers, or novel enactments....

[T]he Nation's history does not countenance such an incursion into the right to keep and bear arms across all places of worship across the state. The right to self-defense is no less important and no less recognized at these places.

Volokh Conspiracy has more on the decision. [Thanks to Steven H. Sholk for the lead.]

Baker With Religious Objections to Same-Sex Marriage Did Not Violate California's Civil Rights Law

In a tentative decision which becomes final in ten days unless objections are filed, a California state trial court has concluded that a bakery which refuses on religious grounds to furnish custom designed cakes for same-sex weddings and instead refers customers to another bakery for such items did not violate the Unruh Civil Rights Act. In Department of Fair Employment and Housing v. Cathy's Creations, Inc., (CA Super. Ct., Oct. 21, 2022), the court concluded that the state failed to prove intentional sexual orientation discrimination, saying in part:

Miller and Tastries do not design and do not offer to any person-- regardless of sexual orientation-- custom wedding cakes that "contradict God's sacrament of marriage between a man and a woman.

The court went on to hold that because California's Unruh Civil Rights Act is a neutral law of general applicability, the state did not violate defendant's free exercise rights. However, application of the Unruh Civil Rights Act here would violate defendants' free speech rights because it would compel expressive conduct based on content or viewpoint. Thomas More Society issued a press release announcing the decision.

Canadian Court Sentences Former Politician on Charge of Antisemitic Hate Speech

Ottawa City News reports on the sentencing by a Saskatchewan trial court of the leader of a now defunct political party for violation of Canada's hate speech law:

The former leader of the Canadian Nationalist Party was handed a one-year sentence Thursday on a hate speech charge after he called for the genocide of Jewish people in a video posted on the party's website and social media accounts.

Travis Patron, who founded the now-defunct party, was convicted of wilfully promoting hate by a jury earlier this month during a trial in Estevan, Sask.

Justice Neil Robertson of Court of King's Bench accepted the Crown's recommendation that the 31-year-old serve one year behind bars.

Indictment Handed Down in 2018 Shooting of Jehovah's Witness Building

The Justice Department announced yesterday that a federal grand jury in Seattle, Washington has indicted Mikey Diamond Starrett, aka Michael Jason Layes, on one count of damaging religious property and one count of using a firearm during a crime of violence. According to the indictment, in May 2018 Starrett used a semi-automatic rifle to damage the Jehovah’s Witnesses Kingdom Hall of Yelm, Washington because of its religious character. He had also previously been charged with possession of an unregistered firearm.  If convicted, he faces a sentence of up to 20 years in prison on the charge of damaging religious property, plus up to ten years on the other charges. Last September, in U.S. v. Layes, (WD WA, Sept. 14, 2021), a federal magistrate judge ordered Starrett to be held in pre-trial detention.