Lev Tahor Leaders Sentenced To Prison

The U.S. Attorney's Office for the Southern District of New York announced last Thursday that two leaders of extremist Jewish sect Lev Tahor have been sentenced to 12 years in prison, followed by 5 years of supervised release, for child sexual exploitation offenses and kidnapping.  According to the announcement:

In or about 2017, [NACHMAN] HELBRANS arranged for his then-12-year-old niece, Minor-1, to be “married” to a then-18-year-old man.  Though they were never legally married, they were religiously “married” the following year, when Minor-1 was 13 and her “husband” was 19.  Lev Tahor leadership, including HELBRANS and [MAYER] ROSNER, required young brides ... to have sex with their husbands, to tell people outside Lev Tahor that they were not married, and to lie about their ages....

After [Minor-1's] mother fled and settled in New York with her children, HELBRANS and ROSNER devised a plan to kidnap Minor-1, then 14 years old, to return her to Guatemala and to her then-20-year-old “husband.”  In December 2018, they kidnapped Minor-1 and her brother in the middle of the night from a home in upstate New York and transported them through various states and, eventually, to Mexico.... At the time of the kidnapping, Lev Tahor leadership was seeking asylum for the entire Lev Tahor community in the Islamic Republic of Iran.

Times of Israel reports on the sentencing.

NY AG Orders Anti-Muslim Group To Stop Spying On The Muslim Community

 In an April 1 press release, New York Attorney General Letitia James announced that the office's Civil Right Bureau has sent a Cease and Desist Notification (full text) to an "anti-Muslim hate group" warning it to stop its discriminatory surveillance of the Muslim community. The Notification says in part:

The New York State Office of the Attorney General (OAG) has reviewed reports alleging that your organization, the Investigative Project on Terrorism (IPT), used paid informants and infiltrators to spy on Muslim houses of worship, Muslim advocacy groups, and prominent Muslim leaders. You are advised that such conduct could violate the New York Civil Rights Law and other state and federal laws. You are hereby instructed to cease and desist any ongoing or contemplated unlawful espionage operations against Muslims and Muslim organizations within the State of New York. Discrimination has no place in New York. The OAG will use every tool at its disposal to protect Muslim New Yorkers against unlawful intimidation campaigns.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Pew Survey On Attitudes Toward Religious Exemption Claims To Vaccine Mandates

Yesterday the Pew Research Center released the results of its American Trends Panel survey on attitudes toward COVID-19 mandates and claims of religious objections to vaccines. A release titled Americans skeptical about religious objections to COVID-19 vaccines, but oppose employer mandates reads in part:

Two-thirds of U.S. adults say most people who claim religious objections to a COVID-19 vaccine “are just using religion as an excuse to avoid the vaccine,” while about a third (31%) say they think the objectors “sincerely believe getting a COVID-19 vaccine is against their religion.”

At the same time, most Americans do not think those with religious objections to the COVID-19 vaccine – regardless of the sincerity of their beliefs – should lose their jobs. A majority of adults (65%) say employers that require coronavirus vaccinations should “allow employees who have religious objections to keep their jobs even if they decline to get the vaccine.” Around a third (32%) disagree....

White House Announces Initiatives To Support Transgender Americans

President Biden this week issued a Proclamation (full text) recognizing yesterday as "Transgender Day of Visibility." The Proclamation says in part:

To everyone celebrating Transgender Day of Visibility, I want you to know that your President sees you.  The First Lady, the Vice President, the Second Gentleman, and my entire Administration see you for who you are — made in the image of God and deserving of dignity, respect, and support....

In the past year, hundreds of anti-transgender bills in States were proposed across America, most of them targeting transgender kids.  The onslaught has continued this year.  These bills are wrong.  Efforts to criminalize supportive medical care for transgender kids, to ban transgender children from playing sports, and to outlaw discussing LGBTQI+ people in schools undermine their humanity and corrode our Nation’s values.

This was followed yesterday with the issuance by the White House of a lengthy Fact Sheet (full text) outlining the Administration's efforts to advance equality and visibility of transgender, non-binary and gender non-conforming Americans. Among the new initiatives announced are allowing "X" to be selected as a gender marker on passport applications and various other federal forms.  The Fact Sheet also says:

In recent months, multiple states have removed critical information about mental health resources for LGBTQI+ youth from official state websites. Transgender youth often face significant barriers in accessing supportive resources, and are at greater risk of attempted suicide. In response, the Department of Health and Human Services released a new website that offers resources for transgender and LGBTQI+ youth, their parents, and providers. These resources include best practices for affirming an LGBTQI+ child, and information about suicide prevention services.

Court Dismisses Unification Church Trademark Dispute On Ecclesiastical Abstention Grounds

In Holy Spirit Association for the Unification of World Christianity v. World Peace and Unification Sanctuary, Inc., (MD PA, March 30, 2022), a Pennsylvania federal district court dismissed on ecclesiastical abstention grounds a trademark dispute between the Unification Church (HSA), led by the late Rev. Sun Myung Moon's wife, and defendant Unification Sanctuary, an organization created by Rev. Sun Myung Moon's son to spread Rev. Moon's teachings. At issue is the right of Sanctuary to use the trademarked Twelve Gates symbol. The court said in part:

While it is undisputed that the Twelve Gates symbol is registered with the USPTO in HSA’s name, Sanctuary contends that the Twelve Gates symbol is not entitled to trademark protection because the symbol has become generic as a universal religious symbol that represents Unificationism generally....

[T]he implicit question raised ... is whether Sanctuary can be classified as a branch of the Unificationist church in light of the apparent fundamental disagreements between the parties relating to the beliefs and practice of this religion. Indeed, while Sanctuary classifies itself as a Unificationist church, HSA vehemently disputes this assertion.... [I]t is well-settled that the court cannot resolve church disputes on the basis of religious doctrine and practice....

HSA’s registration of the Twelve Gates symbol with the USPTO constitutes prima facie evidence that it owns this trademark right....  However, Sanctuary has contested HSA’s ownership on inherently religious grounds. Specifically, Sanctuary has alleged that Sean Moon is the owner of all Unificationist property as the heir of Rev. Moon, and that he therefore owns the trademark to the Twelve Gates symbol since he controls the Unificationist Church, and by extension, HSA as a branch of same.

Plainly, this is a dispute that the court cannot resolve without venturing into issues of church leadership or organization—an area in which the Southern District of New York and the Second Circuit have already determined is inappropriate in a similar dispute presented by the same parties.

Lipstadt Finally Confirmed As Special Envoy To Combat Antisemitism

Late yesterday, The U.S. Senate by voice vote confirmed Prof. Deborah Lipstadt to be Special Envoy to Monitor and Combat Anti-Semitism, with the rank of Ambassador. The Forward reports on the Senate's action. Confirmation has been held up for months, largely because of concerns by Foreign Relations Committee member Ron Johnson about tweets from Lipstadt last March critical of him. (See prior posting.)

Arizona Governor Signs Bills On Transgender Issues And Abortion

As described in a press release from the Governor's office, yesterday Arizona Governor Doug Ducey signed the following bills into law:

Senate Bill 1138, sponsored by Sen. Warren Petersen, delays irreversible gender reassignment surgery until the age of 18. The bill does not prohibit puberty blocking hormones or any other hormone therapy and will not require any child to go off any prescriptions they may be taking....

The Governor also signed S.B. 1165, sponsored by Sen. Nancy Barto. This legislation requires all Arizona public schools, and any private schools that compete against them, to expressly designate their interscholastic athletics teams based on the biological sex of the participating students....

Continuing Arizona’s commitment to protecting preborn children, the Governor also signed S.B. 1164, sponsored by Sen. Nancy Barto. The bill prohibits a physician from performing an abortion past 15 weeks gestation, except in a medical emergency....

Women who received an abortion after 15 weeks may not be prosecuted.

NBC News reports on these developments.

No Title VII Violation In Denying Hospital Employee 7 Days Off For Jewish Holiday Observance

In Wagner v. Saint Joseph's/ Candler Health Systems, Inc., (SD GA, March 28, 2022), a Georgia federal district court held that a hospital did not violate Title VII when it fired an Orthodox Jewish admissions notification specialist for taking off four days, in addition to the three days that were approved, to observe the Fall Jewish holidays. The court said in part:

The evidence shows that, due to the unique nature of Wagner’s job, accommodating her request would have required her supervisors and fellow employees ... to perform Wagner’s job for seven days over a seventeen-workday period. The parties agree that Wagner’s job was “time-sensitive” and that there were financial ramifications for the Hospital if Wagner (or whoever was performing her job) failed to notify insurance companies of inpatient stays involving one of their insureds within twenty-four hours.... Wagner also concedes that if the Hospital were to have granted her seven days off to observe the October High Holidays, [fellow employees] ... would have had to bear an additional workload, which would have taken them away from their own jobs....

This evidence suggests that the Hospital would have—and ultimately did— endure more than a de minimis cost in order to accommodate Wagner’s request to miss seven days of work to observe the October High Holidays.

11th Circuit Grants Limited Stay Of Injunction Against Navy's Vaccine Mandate

In Navy SEAL 1 v. Secretary of the U.S. Department of Defense, (11th Cir., March 30, 2022), the U.S. 11th Circuit Court of Appeals granted a limited stay of a Florida district court's preliminary injunction granted to two service members who objected on religious grounds to complying with the military's COVID vaccine mandate. The court allowed the Navy to consider the plaintiffs’ vaccination status in making deployment, assignment, and other operational decisions while appeals are pending. However the court refused to stay the injunction more broadly. Liberty Counsel issued a press release announcing the decision.

Ban On Proselytizing At City Farmers Market Violates Free Speech Rights

In Denton v. City of El Paso, (WD TX, March 29, 2022), a Texas federal magistrate judge concluded that plaintiff's free speech rights were violated by a policy of the city whose Museums and Cultural Affairs Department refused to allow Plaintiff to proselytize at the Downtown Art and Farmers Market.  The city's policy barred First Amendment expression and religious proselytizing within and during the Market. The magistrate judge recommended granting of nominal damages and injunctive relief.

European Court Says Refusal To Register Jehovah's Witnesses Violates ECHR

In Christian Religious Organization of Jehovah's Witnesses in the NKR v. Armenia, (ECHR, March 22, 2022), the European Court of Human Rights held that refusal by Nagorno Karabakh to register Jehovah's Witnesses as a religious organization amounts to a violation by Armenia of Article 9 of the European Convention on Human Rights. [Thanks to Law & Religion UK for the lead.]

District Court Issues Class-Wide Injunction To Navy SEALS Vaccine Objectors

 In U.S. Navy SEALs 1-26 v. Austin, (ND TX, March 28, 2022), a Texas federal district court granted a class-wide preliminary injunction to  4,095 Navy servicemembers who object on religious grounds to the Navy's COVID-19 vaccine mandate and have filed religious accommodation requests. The court also certified two sub-classes. However, the court immediately stayed the injunction "insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions." This decision expands the court's previous grant of a preliminary injunction to 35 individual plaintiffs into a class-wide injunction.  That order was stayed, pending appeal, by the Supreme Court, insofar as it barred the Navy from considering the COVID vaccination status of the service members in making deployment, assignment and operational decisions. (See prior posting.) Liberty Counsel issued a press release announcing the decision.

Certiorari Denied In Synagogue Picketing Case

Last week, the U.S. Supreme Court denied review in Brysk v. Herskovitz, (Docket No. 21-1024, certiorari denied 3/21/2022). (Order List). In the case, the U.S. 6th Circuit Court of Appeals dismissed a suit by synagogue members against anti-Israel pickets who have picketed services at the Beth Israel Synagogue in Ann Arbor, Michigan every week since 2003.  A majority held that the picketers were protected by the First Amendment. (See prior posting).

Recent Articles Of Interest

From SSRN:

• Michael Heise & Gregory C. Sisk, Approaching Equilibrium in Free Exercise of Religion Cases? Empirical Evidence from the Federal Courts, (Cornell Legal Studies Research Paper Forthcoming).
• Adam McDuffie, The Problem with the Peace Cross: American Legion v American Humanist Association and the Power of Courts to Shape Societal Memory, (Religio et Lex 4:1 (Summer 2021): 5-18).
• Sahar F. Aziz, Different Name, Same Aim: Targeting Muslims in 'Soft Counterterrorism', (March 25, 2022).
• Steven J. Heyman, Transforming Natural Religion: An Essay on Religious Liberty and the Constitution, (Brigham Young University Law Review, Vol. 48, No. 4, Forthcoming 2023).
• Shiv Narayan Persaud, The American Constitution in the Cycle of Kali Yuga: Eastern Philosophy Greets Western Democracy, (Seattle Journal for Social Justice: Vol. 20 : Iss. 1 , Article 16 (2021).
• Bryan Lammon, Reforming Qualified-Immunity Appeals, (87 Missouri Law Review (Forthcoming 2023)).
• Kimberley Harris, How Do You Solve a Problem Like S.B. 8? Flagrantly Unconstitutional Laws, Procedural Scheming, and the Need for Pre-Enforcement Offensive Litigation, (Tennessee Law Review, Forthcoming).
• Priya Kamath, Outcast(e): The Case for Recognizing Caste Under U.S. Anti-Discrimination Law, (September 20, 2021).
• Dr. Sulaiman Lebbe Rifai, Islam and the West in Ali al- Namlah’s Reconciliatory Thought, (February 5, 2022).
• Peter Molk, Where Nonprofits Incorporate and Why It Matters,  (Iowa Law Review, Forthcoming 2023).

From SmartCILP:

• Cochav Elkayam-Levy, The Diversity of Womanhood and All of God's Creatures: Addressing Challenges in the Protection of Women's Religious Freedoms Using a Novel Classification, 53 Cornell International Law Journal 595-642 (2020).
• Emily Prifogle, Rural Social Safety Nets for Migrant Farmworkers in Michigan, 1942–1971, 46 Law & Social Inquiry 1022-1061 (2021).
• Lisa Harms, Claiming Religious Freedom at the European Court of Human Rights: Socio-Legal Field Effects on Legal Mobilization, [Abstract], 46 Law & Social Inquiry 1206-1235 (2021).
• Nurfadzilah Yahaya, Book Review. Gramophones, Paper Money, and Brimmed Hats: Sharia under Colonial Rule. Modern Things on Trial: Islam's Global and Material Reformation in the Age of Rida, 1865–1935, by Leor Halevi, [Abstract], 46 Law & Social Inquiry 1275-1280 (2021).
• Robin Knauer Maril, Religiously Motivated Conduct and the Reasonable Accommodation Requirement under Title VII: A New Framework for Analysis, 66 Villanova Law Review 731-764 (2021).

11th Circuit Rejects Preacher's Challenge To Campus Permit Requirement

In Keister v. Bell, (11th Cir., March 25, 2022), the U.S. 11th Circuit Court of Appeals rejected a challenge to the University of Alabama's policy that requires a permit in order for a speaker to participate in expressive conduct on University grounds, with an exception for “casual recreational or social activities.” The challenge was brought by a traveling evangelical preacher who, with a friend, set up a banner, passed out religious literature and preached through a megaphone on a campus sidewalk. The court concluded that the sidewalk was a limited public forum, even if it was technically owned by the city rather than the University. Thus the University could impose reasonable, viewpoint neutral restrictions. It also concluded that the exception for "casual ... activities" was not unconstitutionally vague and that the University's advance notice requirement was constitutional.

Iowa Adopts IHRA Definition Of Antisemitism

On March 23, Iowa Governor Kim Reynolds signed HF 2220 (full text) which provides that in the enforcement of state anti-discrimination laws, in determining whether an act was undertaken with antisemitic intent, the state shall take into consideration the definition of antisemitism adopted in 2016 by the International Holocaust Remembrance Alliance.

Governor Reynolds also signed HF2373 (full text) which expanded the definition of "company" in the state's Israel Anti-boycott law.

KCRG News reported on the governor's actions.

No Qualified Immunity For Requiring Patient To Attend Religious Service

In Erie v. Hunter, (MD LA, March 23, 2022), a Louisiana federal district court rejected a qualified immunity defense raised by a psychiatric aide employed by a state mental health facility.  Plaintiff, who had been civilly committed to the facility, contended that he was forced to attend a Christian religious service. He sued for damages, alleging an Establishment Clause violation. Defendant argued that she was the only aide on the ward and could not leave any patient in their room with no one on duty.  Therefore she was faced with the choice of requiring plaintiff to attend or prohibiting all patients on the ward from attending. The court said in part:

Defendant contends that she exercised "fair and reasonable judgment in ensuring the safety and security of the residents under her care while also allowing those residents who wish to attend the service to do so."...

This argument fails on multiple levels. First, the "clearly established" prong of the qualified immunity analysis does not measure the reasonableness of a defendant's actions against the circumstances presented; rather, it measures the reasonableness of the defendant's actions against the "state of the law" at the time the defendant acted....

Second, assuming for present purposes that Defendant only had two options available to her, she nonetheless chose the option that favored religion.... Ultimately, whether Defendant's choice to force Plaintiffs attendance at the religious service violated the Establishment Clause's guarantee of religious neutrality will turn on whether she acted with the ostensible and predominant purpose of advancing religion." ...

[W]hile Defendant's motive/intent may ultimately bear on the outcome of Plaintiffs Establishment Clause claims—particularly if those motives are consistent with the state's interest in maintaining safety of all ELMHS residents—such issues cannot be determined from the allegations of Plaintiffs complaint and require factual development through discovery.

[Thanks to Glenn Katon for the lead.]

Supreme Court Stays District Court's Ban On Navy Applying Vaccine Mandate To SEALs With Religious Objections

Yesterday in Austin v. U.S. Navy Seals 1-26, (Sup.Ct., March 25, 2022), in a case on its shadow docket, the U.S. Supreme Court by a vote of 6-3 stayed a Texas district court's order that barred the Navy from considering the COVID vaccination status of 35 service members in making deployment, assignment and operational decisions. The service members all have religious objections to the vaccines. The Court's stay remains in effect while appeals to the 5th Circuit and, subsequently if necessary, to the Supreme Court are pending. The stay was granted through an unsigned one-paragraph order.  However, Justice Kavanaugh filed a concurring opinion, saying in part:

[T]he District Court, while no doubt well-intentioned, in effect inserted itself into the Navy’s chain of command, overriding military commanders’ professional military judgments. The Court relied on the Religious Freedom Restoration Act... But even accepting that RFRA applies in this particular military context, RFRA does not justify judicial intrusion into military affairs in this case. That is because the Navy has an extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all Special Warfare personnel—including control over decisions about military readiness. And no less restrictive means would satisfy that interest in this context.

Justice Thomas dissented without opinion.  Justice Alito, joined by Justice Gorsuch, filed a dissenting opinion, which concluded that the Navy had not satisfied the requirements of RFRA or the 1st Amendment.  However, the opinion would grant limited relief to the Navy while appeals are pending.  The opinion said in part:

While I am not sure that the Navy is entitled to any relief at this stage, I am also wary, as was the District Court, about judicial interference with sensitive military decision making. Granting a substantial measure of deference to the Navy, I would limit the [district court's] order to the selection of the Special Warfare service members who are sent on missions where there is a special need to minimize the risk that the illness of a member due to COVID–19 might jeopardize the success of the mission or the safety of the team members.

NBC News reports on the decision. [Thanks to Joshua Sarnoff via Religionlaw for the lead.]

Michigan City Violated RLUIPA In Applying Special Requirements On Places Of Worship

In United States v. City of Troy, (ED MI, March 18, 2022), a Michigan federal district court enjoined the city of Troy, Michigan from enforcing its zoning ordinance that imposes stricter setback and parking standards on places of worship than it does on non-religious uses in the same zoning district. The Zoning Board of Appeal refused to grant a variance from these requirements to the Islamic Adam Community Center. The court held that the city had violated the "equal terms" provisions of RLUIPA, saying in part:

While it may be true that places of worship do cause some of the negative impacts to which Troy refers—a high number of visitors, traffic influxes during short periods of time, safety considerations due to increased traffic, and nuisances such as increased noise, light, or exhaust fumes—Troy fails to provide evidence as to how exactly these concerns are unique with respect to places of worship and not similar institutions such as schools or banquet halls.

The court also concluded that the city had violated the "substantial burden" provisions of RLUIPA.  [Thanks to John Kulesz for the lead.]

DHS Issues New Interim Final Rule On Asylum Application Procedures

Yesterday, in a 512-page Release (full text), the Department of Homeland Security adopted an Interim Final Rule (IFR) on procedures for deciding on applications for asylum. It summarized the new rule in part as follows:

The principal purpose of this IFR is to simultaneously increase the promptness, efficiency, and fairness of the process by which noncitizens who cross the border without appropriate documentation are either removed or, if eligible, granted protection. The IFR accomplishes this purpose both by instituting a new process for resolving the cases of noncitizens who have been found to have a credible fear of persecution or torture and by facilitating the use of expedited removal for more of those who are eligible, and especially for populations whose detention presents particular challenges.