Musicians Sue Over Denial Of Religious Exemption From Vaccine Mandate

A Title VII religious discrimination lawsuit was filed yesterday in a Florida federal district court by three musicians who have religious objections to COVID vaccines. They were placed on partial-paid leave by their private employer, an arts organization that operates the Naples Philharmonic, when they refused to comply with the employer's vaccine mandate.  The complaint (full text) in Leigh v. Artis-Naples, Inc., (MD FL, filed 9/21/2022), alleges in part:

Artis-Naples implemented an illegal policy that no exemption or accommodation would or could be granted to any employee who had to be present onsite to perform their job....

Artis-Naples irrationally and pretextually argues that accommodating unvaccinated employees who follow alternative preventative measures would place an “undue hardship” on its operations—specifically, that unvaccinated employees present “a direct threat” of infection to patrons and coworkers....

Florida law requires Artis-Naples to exempt Plaintiffs from the Mandate....

As a matter of law, it can never be an “undue hardship” for an employer to comply with the state law and public policy.

School Gets Declaratory Relief Stating That It Should Have Receive State Bus Transportation

In St. Augustine School v. Underly, (ED WI, Sept. 19, 2022), a Wisconsin federal district court, deciding a case on remand from the 7th Circuit, issued a declaratory judgment that state school officials violated Wisconsin law by failing to furnish bus transportation to students attending St. Augustine. At issue was whether St. Augustine School was affiliated with the same denomination as another nearby Catholic school so that only one of the schools would be entitled to bus transportation. The district court said that under the terms of the remand, it could not grant relief on plaintiff's constitutional claims. However, because another appeal was likely, the court did express its opinion on those claims, saying in part:

because the rule as applied by the defendants did not cut St. Augustine off from benefits “for no other reason” than that it was a religious school,... the defendants’ denial of benefits did not violate the Free Exercise Clause.

Employees Fired For Religious Refusal Of COVID Vaccine Bring Title VII Suit

Four former employees of a continuing care retirement community filed suit in an Alabama federal district court last week claiming that they were wrongly fired for refusing the COVID vaccine on religious grounds.  The 105-page complaint (full text) in Hamil v. Acts Retirement-Life Communities, Inc., (SD AL, filed 9/15/2002), contends that plaintiffs were subjected to a hostile work environment, harassment, and wrongful termination based on their sincerely held religious beliefs. They were denied religious exemptions, or had previously granted religious exemptions rescinded. According to the complaint:

Such conduct was undertaken to preserve Defendants' exorbitant sums of monetary assistance in the form of government grants, coronavirus relief funds, and Medicare and Medicaid funds....

In the case at hand, the crux of the issue is the unlawful employment practices undertaken by Defendant and not the constitutional validity of any vaccine mandate....

The complaint contains lengthy descriptions of plaintiffs' religious beliefs and alleges various violations of Title VII as well as numerous state law claims. 1819News reports on the lawsuit.

Appropriation To Christian School Challenged Under South Carolina Constitution

Suit was filed yesterday in a South Carolina state trial court contending that a state budget appropriation of $1.5 million to  Christian Learning Centers of Greenville County violates the provision in South Carolina's constitution that bars the use of public funds "for the direct benefit of any religious or other private educational institution." The complaint (full text) in Parker v. McMaster, (SC Com. Pl., filed 9/20/2022) asserts that the appropriation also contravenes the state constitution's Establishment Clause. The appropriation is aimed at partially funding a $14 million residential school for disadvantaged and at-risk youth. Freedom From Religion Foundation issued a press release announcing the filing of the lawsuit.

Christian Rescue Mission Charged With Religious Discrimination Files Suit

Suit was filed yesterday in a Wyoming federal district court by a Christian rescue mission challenging interpretations by the EEOC and the Wyoming Department of Workforce Services of the employment discrimination provisions of state and federal law.  The complaint (full text) in Rescue Mission v. EEOC, (D WY, filed 9/20/2022), contends that the Rescue Mission's free exercise and free expression rights were violated when the EEOC and WDWS found probable cause that the Mission engaged in religious discrimination in refusing to hire non-Christians as associates in its Thrift Stores.  The agencies took the position that a religious exemption was available only as to "ministerial" positions. The Rescue Mission's complaint alleges in part:

The [Thrift store] position has spiritual qualifications that require candidates to “[m]aintain a personal relationship with Jesus Christ,” “live a Godly life in public and private, thereby providing a Christian role model for those we seek to reach,” and “[a]gree with the WRM Statement of Faith.”

ADF issued a press release announcing the filing of the lawsuit.

11th Circuit: Muslim Prison Chaplain Loses Suit Over Exclusions From Execution Chamber

In Maisonet v. Commissioner, Alabama Department of Corrections, (11th Cir., Sept. 16, 2022), the U.S. 11th Circuit Court of Appeals affirmed the dismissal of a suit by a Muslim volunteer Chaplain who claimed that his free exercise rights were infringed when he was prevented from being in the execution chamber when two inmates to whom he ministered were executed. The court held that the chaplain lacked standing to obtain declaratory or injunctive relief because he did not identified any death row inmate whose execution he will be unable to attend in the future. Alabama now allows chaplains in the execution chamber. The court concluded that the chaplain did have standing to pursue his claim for damages in the cases of the two inmates whose executions he was unable to attend previously. However qualified immunity shields defendants from liability.

7th Circuit: Muslim Inmate Entitled To Religious Exemption From Strip Searches By Transgender Guards

In West v. Radtke, (7th Cir., Sept. 16, 2022), the U.S. 7th Circuit Court of Appeals held that a Muslim inmate's rights under RLUIPA were violated when prison authorities refused to exempt him from strip searches conducted by transgender men. Wisconsin first argued that the inmate, Rufus West, should not care that he is searched by a transgender inmate because Islam equally condemns exposing the naked body to any guard, male or female. The court responded that:

The substantial-burden inquiry does not ask whether West’s understanding of his faith obligations is correct.

Prison authorities went on to argue that the burden on West's religious exercise was justified by the state's compelling interest in complying with the anti-discrimination requirements of Title VII which bars discrimination against its transgender guards. The Court said, however:

The prison offers no argument under established Title VII doctrine that exempting West from cross-sex strip searches would inflict an adverse employment action on its transgender employees....

The prison’s Title VII argument would fail even if it could show that exempting West from cross-sex strip searches would lead to an adverse employment action. Title VII permits sex-based distinctions in employment where sex “is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise.” 42 U.S.C. § 2000e-2(e)....

Sex is a bona fide occupational qualification for performing strip searches of prisoners with sincere religious objections to cross-sex strip searches.

The Court also rejected the prison's equal protection defense. It remanded for further development the inmate's 4th Amendment claims. 

Recent Articles of Interest

From SSRN:

• Elizabeth Sepper & James David Nelson, Government's Religious Hospitals, (Virginia Law Review, Forthcoming 2023).
• Marc O. DeGirolami, Traditionalism Rising, (Journal of Contemporary Legal Issues, Forthcoming).
• Samuel Director, Of Blood Transfusions and Feeding Tubes: Anorexia-Nervosa and Consent, (Public Affairs Quarterly, Forthcoming).
• Bridget J. Crawford & Walter Edward Afield, Yesterday's Protestor May Be Tomorrow's Saint: Reimagining the Tax System Through the Work of Dorothy Day, (Tax Law Review, Forthcoming).
• Robert Kahn, The Mask Wars and Social Control: Lessons from the 1927 Unveiling Campaign in Soviet Uzbekistan, (California Western International Law Journal, forthcoming 2022).
• Thomas Donnelly, Supreme Court Legitimacy: A Turn to Constitutional Practice, (Brigham Young University Law Review, Vol. 47, No. 1487, 2022).
• Jack M. Balkin, Abortion and Partisan Entrenchment, (September 8, 2022).
• Mark Kende, Constitutional Pragmatism and Abortion, (Drake Law Review, Vol. 64, No. 4, 2021).
• Michael L. Smith, Abandoning Original Meaning, (Albany Law Review, Vol. 86, 2023 (Forthcoming)).
• Ari Ezra Waldman, Policing Queer Sexuality, (Michigan Law Review, Vol. 121, Forthcoming).

From SmartCILP:

• Eva Johan & Hanna Schebesta, Religious Regulation Meets International Trade Law: Halal Measures, a Trade Obstacle? Evidence from the SPS and TBT Committees, 25 Journal of International Economic Law 61-73 (2022).

Yeshiva University Suspends All Student Organization Activities Rather Than Recognize LGBTQ Organization

As previously reported, the U.S. Supreme Court last week in Yeshiva University v. YU Pride Alliance ordered Yeshiva University to first seek relief through appeals in state courts before asking the U.S. Supreme Court to stay a state trial court order requiring it to recognize an LGBTQ student group. Now, as reported by CNN, the University on Friday announced that it would put all undergraduate club activities on hold while it "takes steps to follow the roadmap provided by the US Supreme Court..."

UPDATE: Religion News Service reports:

A Jewish LGBTQ organization [JQY] announced Tuesday (Sept. 20) that it will step in to provide funding for all student clubs at Yeshiva University after school officials suspended all undergraduate student groups rather than recognize an LGBTQ campus group, the YU Pride Alliance.

UPDATE 2: In a statement (full text) issued Sept. 21, YU Pride Alliance announced that it would agree to a stay of the order requiring the University to recognize it while the litigation continues because it does not want YU to punish fellow-students. As reported by The Commentator, the University welcomed the response, saying it offers an opportunity for continuing discussions.

White House Hosts Summit Addressing Hate-Motivated Violence

Yesterday President Biden hosted the United We Stand Summit at the White House directed at countering hate-motivated violence. The President spoke at the Summit for nearly 25 minutes (full text of remarks), calling on Congress to pass budget increases to protect nonprofits and houses of worship from hate-fueled violence, and to pass legislation to hold social media platforms accountable for spreading hate-fueled violence. He said in part:

There is a through-line of hate from massacres of Indigenous people, to the original sin of slavery, the terror of the Klan, to ... anti-immigration violence against the Irish, Italians, Chinese, Mexicans, and so many others laced throughout our history.

There is a through-line of violence against religious groups: antisemitic, anti-Catholic, anti-Mormon, anti-Muslim, anti-Hindu, anti-Sikh.

Look, folks, and that through-line of hate never fully goes away.  It only hides.

The White House also issued a Fact Sheet on the Summit, announcing a number of new government and private initiatives to address hate-fueled violence. Several clergy were among the "Uniters" honored at the Summit.

Supreme Court Vacates Stay of Injunction Against Yeshiva University, Sending Case Back To State Courts

The U.S. Supreme court yesterday in Yeshiva University v. YU Pride Alliance, (Sup. Ct., Sept. 14, 2022), vacated the stay issued on Sept. 9 by Justice Sotomayor of a New York state trial court's injunction that required Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance. In a 5-4 vote, the Court issued the following opinion directing the University to first seek expedited review and interim relief from New York trial courts.  Here is the full opinion [paragraph breaks added]:

The application (22A184) for stay pending appeal of a permanent injunction entered by the New York trial court, presented to Justice Sotomayor and by her referred to the Court, is denied without prejudice to applicants again seeking relief from this Court if, upon properly seeking expedited review and interim relief from the New York courts, applicants receive neither. The order heretofore entered by Justice Sotomayor is vacated.

Applicants Yeshiva University and its president seek emergency relief from a non-final order of the New York trial court requiring the University to treat an LGBTQ student group similarly to other student groups in its student club recognition process. The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief. First, applicants may ask the New York courts to expedite consideration of the merits of their appeal. Applicants do not assert, nor does the Appellate Division docket reveal, that they have ever requested such relief. Second, applicants may file with the Appellate Division a corrected motion for permission to appeal that court’s denial of a stay to the New York Court of Appeals, as the Appellate Division clerk’s office directed applicants to do on August 25. Applicants may also ask the Appellate Division to expedite consideration of that motion.

If applicants seek and receive neither expedited review nor interim relief from the New York courts, they may return to this Court.

Justice Alito, with whom Justice Thomas, Justice Gorsuch, and Justice Barrett join, dissent.

NY Jewish Week reports on the decision. [Thanks to Rabbi Michael Simon for the lead.]

UPDATE: Here is the full text of Justice Alito's dissent. He said in part:

At least four of us are likely to vote to grant certiorari if Yeshiva’s First Amendment arguments are rejected on appeal, and Yeshiva would likely win if its case came before us. A State’s imposition of its own mandatory interpretation of scripture is a shocking development that calls out for review. The Free Exercise Clause protects the ability of religious schools to educate in accordance with their faith.

Study Of State Statutory Religious Liberty Protections Released

First Liberty Institute's Center for Religion, Culture and Democracy yesterday released a 95-page report titled Religious Liberty In the States 2022 (full text). The Report ranks each state by examining its statutory protections and exemptions for religious belief in the following areas: absentee voting for religious reasons; religious exemptions from childhood immunization requirements; conscience protections for health care providers; religious exemptions from health insurance contraceptive mandates; provisions for religious entities, public officials and businesses to refuse to participate in marriages and weddings that violate religious beliefs; and a state Religious Freedom Restoration Act.

6th Circuit Refuses To Stay Class-Wide Injunction Against Air Force Enforcing Vaccine Mandate Against Religious Objectors

In Doster v. Kendall, (6th Cir., Sept. 9, 2022), the U.S. 6th Circuit Court of Appeals refused to grant an emergency stay of a class-wide injunction that was issued by an Ohio federal district court in a suit by Air Force and Space Force members who object on religious grounds to receiving the COVID vaccine. The district court enjoined the military from taking enforcement measures, while litigation is pending, against service members who have submitted confirmed requests for a religious accommodation from the military's vaccine mandate. The 6th Circuit said in part:

[T]he Department challenges only the merits of the district court’s decision to certify the class—the Department’s position being that, even if the named plaintiffs are likely to prevail on their individual claims, the court’s certification of the class was an abuse of discretion, and thus so too was the court’s issuance of a class-wide preliminary injunction....

The Department ... argues that RFRA claims categorically cannot be certified for class treatment. Here, for example, it says that the plaintiffs’ RFRA claim requires the court to determine separately for each service member whether the vaccination mandate is the least restrictive means of furthering a compelling governmental interest. We agree that most RFRA claims require that kind of individualized analysis; and we have no quarrel with the Department’s contention that such an analysis could not be conducted class-wide here. But the Department’s argument misconceives the nature of the RFRA claim that the district court certified. The court’s order emphasized on almost every page that the RFRA claim it certified was one based on a class-wide “clear policy of discrimination against religious accommodation requests.” ... That claim ... does not turn on an analysis of the class members’ individual circumstances and likely can be adjudicated class-wide.

Liberty Counsel issued a press release announcing the decision.

West Virginia Legislature Passes Restrictive Abortion Bill

The West Virginia legislature yesterday gave final passage to House Bill 302 (full text) which outlaws most abortions. It provides in part:

An abortion may not be performed or induced or be attempted to be performed or induced unless in the reasonable medical judgment of a licensed medical professional: (A) there exists a nonmedically viable fetus; (B) there exists an ectopic pregnancy; or (C) there exists a medical emergency.

In addition ..., an abortion may be performed by a licensed medical professional when:(1) the patient is a victim of sexual assault or incest; (2) a report is made to a qualified law enforcement officer; (3) the licensed medical professional determines that probable gestational age of fetus has not exceed 14 weeks; and (4) the licensed medical professional complies with the provisions of §16-2R-5 [minors and reporting provisions].

A prison sentence of 3 to 10 years is prescribed for anyone (other than the mother) who violates the abortion prohibitions. West Virginia Public Broadcasting reports on the bill. [Thanks to Scott Mange for the lead.]

Mask Mandate Did Not Violate Free Exercise Rights

 In Bush v. Fantasia, (D MA, Sept. 12, 2022), a Massachusetts federal district court dismissed claims that a COVID mask mandate imposed by a town Board of Health and a public library violated plaintiffs free exercise rights. Plaintiffs claimed that they "have sincerely held religious beliefs that proscribe our wearing face masks and/or submitting to coerced medical devices/products such as face masks." The court said in part:

Plaintiffs do not identify a religious practice or explain the coercive effect the mask mandates had on that practice. A mere vague allegation that mask mandates violate their religion is not enough to survive even the most a generous pleading standard....

Even assuming arguendo that Plaintiffs have sufficiently alleged a burden on their exercise of religion, their claims would still fall. The mask mandates were facially neutral and generally applicable, i.e., they did not single out, or make any reference to, a religion or any religious practice and applied equally to all....

The court also rejected equal protection, due process and a number of other challenges. 

NY Board Of Regents Adopts "Substantial Equivalency" Guidelines For Private And Religious Schools

As reported by JTA, the New York Board of Regents yesterday approved the Final Substantial Equivalency Regulation (full text) (summary) which implements NY Education Law §3204(2) requiring instruction in nonpublic schools to be at least "substantially equivalent" to that in public schools in the same city or district. Originally proposed in March (see prior posting), the Regulation provides multiple pathways for private and religious schools to demonstrate compliance. The Regulation garnered increased attention after the New York Times on Sunday published a lengthy article setting out the findings of its study of the inadequacies of secular instruction in a number of Hasidic Jewish schools. (It also posted the article in Yiddish on its website.) The Forward also has background on the new rule.

Christian University Trustees Sued Over LGBTQ Hiring Policy

Suit was filed this week in a Washington state trial court against six members of the Board of Trustees of Seattle-Pacific University challenging the University's policy of refusing to hire LGBTQ faculty or staff if they are in a same-sex marriage or a same-sex relationship.  The complaint (full text) in Guillot v. Whitehead, (WA Super. Ct., filed 9/11/2022), brought by a group of students, faculty and staff, alleges breach of fiduciary duty, fraud, negligent misrepresentation and interference with contractual relationships. It contends that "rogue" members of the University Board of Trustees have misled other Board members about the vote necessary to eliminate the hiring policy. The University, which was founded by the Free Methodist Church of North America, defines itself as a Christian university. One-third of its board members and its president must be members of the Free Methodist Church. The complaint alleges in part:

1. This case is about six men who act as if they, and the educational institution they are charged to protect, are above the law.

2. They are powerful men who use their positions, as trustees of Seattle Pacific University (“SPU”), to advance the interests of a religious denomination at the expense of the students, alumni, staff, and faculty of the university....

102. SPU is a university in crisis, stemming from the abusive leadership of entrenched interests who usurped control of the BOT to place it in service of sectarian-motivated LGBTQ+ discrimination....

AP reports on the lawsuit.

Certiorari Petition Filed Again In Bakery's Refusal To Design Wedding Cake For Same-Sex Marriage

Last week, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Klein v. Oregon Bureau of Labor and Industries, (Sup. Ct., filed 9/7/2022). This is the second time the case has worked its way up to the Supreme Court. (See prior posting.) At issue is a finding by the state Bureau of Labor and Industries that Sweetcakes bakery violated the state's public accommodation law when it refused on religious grounds to design and create a wedding cake for a same-sex wedding. In January, the state court of appeals remanded the case to the Bureau of Labor and Industries for it to determine a remedy after finding that the Bureau's first determination of damages was tainted by non-neutrality. (See prior posting.) In August, the Bureau imposed damages of $30,000. First Liberty has additional background.

Recent Articles of Interest

From SSRN:

• Leah Plunkett & Michael Lewis, The Wages of Crying Life: What States Must Do to Protect Children After the Fall of Roe,  (Pepperdine Law Review, 2022-2023).
• Aaron Tang, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban, (Stanford Law Review, Forthcoming).
• Evan R. Seamone, Beyond 'Restoration of Honor': Compensating Veterans for the Psychological Injuries of the Gay and Transgender Bans, (28 William & Mary Journal of Race, Gender, & Social Justice 687 (2022)).
• Cameron Moody, Iranian Music Censorship & International Human Rights Law, (Brooklyn Journal of International Law, Vol. 47, No. 1, 2022).
• John Kenedi, Problematic of Correctional Service (Lapas) in the Perspective of Indonesian Penal Law and Islamic Criminal Law, (2022).

From SmartCILP:

Jordan Blair Woods, Book Review. Bigotry, Civil Rights, and LGBTQ Child Welfare. Who's the Bigot? Learning from Conflicts over Marriage and Civil Rights Law, by Linda C. McClain, 120 Michigan Law Review 1011-1032 (2022).

UK Government Issues Suggestions For Places of Worship To Take Part In Mourning For Queen

In Britain last Friday, the government's Department for Levelling Up, Housing and Communities issued National Mourning Period: Guidance for Faith and Belief Groups and Places of Worship. It contains liturgical and operational suggestions for religious venues that wish to take part in the Period of Mourning for Queen Elizabeth II. Law & Religion UK has links to additional resources.