New Ohio Law Allows Religious Apparel For Student Athletes

On Feb. 28, Ohio Governor Mike DeWine signed into law Senate Bill 181 (full text) which allows students to wear religious apparel while competing in inter-scholastic athletic competitions or extracurricular activities.  A limited exception allows regulation where the apparel would create a legitimate danger. In such cases, reasonable accommodation is required. Don Byrd has additional background on the law.

Anti-Abortion Protesters Can Move Ahead With Challenge To COVID Order

 In Global Impact Ministries, Inc. v. City of Greenspboro, (MD NC, March 16, 2022), a North Carolina federal district court allowed plaintiffs who were anti-abortion protesters, to move ahead with their free speech, freedom of association, equal protection, due process and 4th Amendment claims.  Plaintiffs allege that the city's COVID stat-at-home order was enforced to bar them from walking, praying, and counseling outside of an abortion clinic while others who were not praying or engaging in religious speech were allowed to walk in the area. The court did dismiss plaintiffs' free exercise claim, finding that the COVID order was neutral and generally applicable.

ABC Surveys Religious Views Of SCOTUS Nominee Jackson

 ABC News features an article surveying what is known about Supreme Court nominee Ketanji Brown Jackson's religious beliefs. ABC points to religious references in two speeches out of 2000 pages of documents and one year of service on an advisory board of Montrose Christian School where Jackson focused mainly on fundraising.  ABC reports:

Friends and former colleagues close to Jackson have described her religious practice as private and deeply personal, neither a frequent topic of conversation nor an overly outward display. She identifies as a Protestant Christian, one Jackson associate, who asked to speak anonymously due to sensitivity of the matter, told ABC News.

Indian Court Upholds Hijab Ban In Schools and Colleges

As reported by CBS News:

The top court in the southern Indian state of Karnataka on Tuesday upheld a ban on hijabs, or Muslim headscarves, in schools and colleges in a ruling that could deepen the religious divide in the country.

In Resham v. State of Karnataka, (High Ct. Karnataka, March 15, 2022), a 3-judge panel of the High Court of the Indian state of Karnataka in a 129-page opinion upheld the ban, saying in part:

wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith.

Kansas Teacher Sues Over Requirement To Use Students' Preferred Pronouns

 CNN reported last week on a lawsuit filed by a Fort Riley, Kansas middle school teacher who was disciplined for refusing to call a transgender student by the student's preferred name and pronouns. The complaint alleges in part:

Any policy that requires Ms. Ricard to refer to a student by a gendered, non-binary, or plural pronoun (e.g., he/him, she/her, they/them, zhe/zher, etc.) or salutation (Mr., Miss, Ms.) or other gendered language that is different from the student's biological sex actively violates Ms. Ricard's religious beliefs.

Recent Articles of Interest

 From SSRN:

• Ronald J. Colombo, A Legal Analysis of Religious Arbitration, (Canopy Forum 2022 (Center for Law and Religion / Emory University)).
• Kyle Velte, Lesson for LGBT Rights Advocates from Who's the Bigot?, (Journal of Law and Religion, Vol. 36, No. 341, 2021).
• Andrew M. Koppelman, The Increasingly Dangerous Variants of the “Most-Favored-Nation” Theory of Religious Liberty, (Northwestern Public Law Research Paper No. 22-1 (2022).
• Pasquale Annicchino, Friends of the Court: Christian Conservative Arguments on Human Dignity Before the U.S. Supreme Court and the European Court of Human Rights, (BYU Law Review 2021).
• Carliss Chatman, We Shouldn't Need Roe, (UCLA Women's Law Journal, Forthcoming).

From SSRN (Non-U.S. Law)

• Samiul Hasan, Islam in Bangladesh: Decline of the Liberal Hanafi School in the Information Age, (March 7, 2022).
• Imran A. Nyazee, The Future of Islamic Law, (February 12, 2022).
• Laura T. Kessler, Achieving Equality without a Constitution: Lessons from Israel for Queer Family Law, (in Queer and Religious Alliances in Family Law Politics and Beyond (Nausica Palazzo & Jeffrey A. Redding eds., Anthem Press) (2022 Forthcoming).
• Raphael Cohen-Almagor, The Republic, Secularism and Security: France versus the Burqa and the Niqab (Introduction), (Cham: Springer, 2022).
• Kristopher Kinsinger, Quebec's Bill 21 and the Secular Conceit of Religious Neutrality, (IJRF Vol 13:1/2 2020).
• Jeffrey A. Redding, Translating 'Courts' Cautiously, (The Immanent Frame: Secularism, Religion, and the Public Sphere 2021).
• Jeffrey A. Redding, Religion, (The Cambridge Companion to the Constitution of India (Aparna Chandra, Gautam Bhatia, Niraja Gopal Jayal eds., 2022).
• Alec Stone Sweet, Wayne Sandholtz & Andenas, The Failure to Destroy the Authority of the European Court of Human Rights: 2010-2018, (March 12, 2022).
• Berihun Adugna Gebeye, Global Constitutionalism and Cultural Diversity: The Emergence of Jurisgenerative Constitutionalism in Africa, (Global Constitutionalism 2021).

From SmartCILP:

• Daniel Cameron & Matthew F. Kuhn, Religious Liberty in the Age of COVID-19: Kentucky's Experience, 59 University of Louisville Law Review 203-226 (2021).

Defamation Suit Dismissed On Ecclesiastical Abstention Doctrine

In Heras v. Diocese of Corpus Christie, (TX App, March 10, 2022), a Texas state appellate court affirmed the dismissal on ecclesiastical abstention grounds of defamation suits by two priests who were included on the diocese's list of clergy who have been credibly accused of sexually abusing a minor. The court said in part:

[W]e hold appellants’ defamation suits are barred by the ecclesiastical abstention doctrine because the substance and nature of the appellants’ claims against appellees are inextricably intertwined with appellees’ internal directive for openness and transparency.... More specifically, appellants’ claims are inextricably intertwined with appellees’ decision to release the list incompliance with an internal church directive....

Texas Supreme Court Effectively Ends Challenge To Heartbeat Abortion Ban

The Texas Supreme Court, answering a question of state law certified to it by the U.S. 5th Circuit Court of Appeals, has effectively prevented abortion providers from challenging Texas "heartbeat" abortion law.  In Whole Woman's Health v. Jackson, (TX Sup.Ct., March 11, 2022), the court concluded:

Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the Act’s requirements, either directly or indirectly.

CNN reports on the decision. 

Israel's Chief Rabbi Proposes Special Court To Aid Ukrainian Refugees In Proving Religious Status

Jewish Press and Israel Hayom yesterday reported that Israel's Chief Ashkenazi Rabbi David Lau in a letter to Israel's attorney general has proposed setting up a special religious court (Beit Din) to assist the expected 30,000 or more refugees from Ukraine in proving their Jewish status, thus entitling them to Israeli citizenship under the Law of Return.  The refugees are now entering the country with tourist visas.  Lau pointed out that many Ukrainians fled their homes without documentation of their religious status. Lau plans to appoint three retired religious court judges with experience in this area to the special Beit Din.

Lawsuit By Nun Seeks A Religious Exemption From D.C.'s Healthcare Professionals' Vaccine Mandate

Litigation over the denial of religious exemptions from COVID vaccine mandates continues. This week, a suit was filed in the D.C. federal district court by a nun who is a surgeon and family physician. The DC health department denied her request for a religious exemption from its vaccine requirement for health care professionals.  The complaint (full text) in Byrne v. Bowser, (D DC, filed 3/9/2022) contends that this violates Sr. Deirdre's rights under RFRA and the Free Exercise Clause. In seeking a temporary restraining order and preliminary injunction. plaintiff lists the various medical services she will be unable to perform, including "her abortion pill reversal ministry with the result that human lives that could have been saved in utero might well be lost." Attached to the complaint are nearly 450 pages of exhibits. Thomas More Society issued a press release announcing the filing of the lawsuit.

Legal Responses Continue To Texas Ban On Gender Transition For Minors

 As previously reported, last month Texas Attorney General Ken Paxton in an Attorney General Opinion concluded that a number of procedures used to treat gender dysphoria, i.e. assist transgender individuals in their gender transitions, can amount to child abuse under Texas law. Building on this opinion, Governor Greg Abbott sent a letter to the head of the Texas Department of Family and Protective Services, instructing them to promptly investigate cases covered by the Attorney General's Opinion. As those investigations began, numerous legal developments followed.

On March 2, the Office for Civil Rights of the U.S. Department of Health and Human Services issued a Guidance on Gender Affirming Care which read in part:

Section 1557 protects the right of individuals to access the health programs and activities of recipients of federal financial assistance without facing discrimination on the basis of sex, which includes discrimination on the basis of gender identity.... [I]f a parent and their child visit a doctor for a consultation regarding or to receive gender affirming care, and the doctor or other staff at the facility reports the parent to state authorities for seeking such care, that reporting may constitute violation of Section 1557 if the doctor or facility receives federal financial assistance.

In response, the state of Texas filed an amended complaint (full text) in its pending lawsuit against the federal government (State of Texas v. EEOC, ND TX filed 3/9/2022)  challenging this Guidance.

Meanwhile, in Jane Doe v. Abbott, (TX Dist. Ct., March 2, 2022), a Texas state trial court granted a temporary restraining order providing: "Defendants are immediately enjoined and restrained from taking any actions against Plaintiffs based solely on the Governor’s letter and DFPS statement ... as well as Attorney General Paxton’s Opinion...." The state Court of Appeals in Abbott v. Jane Doe, (TX App., March 9, 2022), held that the TRO was not an appealable order. Texas Tribune reports on some of these developments.

Alaska Supreme Court Upholds Award Of Vaccination Decision-Making To Father Over Mother's Religious Objections

 In Lady Donna Dutchess v. Dutch, (AK, March 9, 2022), the Alaska Supreme Court upheld a trial court's decision awarding sole authority to make decisions regarding vaccinations to a divorced father. The mother objected to all vaccinations for the children on religious grounds. The mother contended that this violated her free exercise rights under the state and federal constitutions. Rejecting that argument, the Alaska Supreme Court said in part:

We are not convinced that heightened scrutiny necessarily applies to child custody determinations allocating decision-making authority between parents, nor did the parties brief this issue. We note that several other state courts have concluded that strict scrutiny does not apply to a custody determination between parents with divergent religious convictions.... [A] court’s application of custody statutes in a manner exhibiting “a preference for the religious over the less religious” would essentially place “government on the side of organized religion, a non-secular result that the establishment clause is designed to prevent.” ...[T]he superior court here properly considered how the mother’s desire not to vaccinate the children was contrary to the recommendation of the children’s pediatrician and counter to their best interests.

Even if we were to apply heightened scrutiny ... , the superior court’s ruling would withstand review. The Statehas “an undeniably compelling interest in protecting the health of minors.”

Another Suit Seeks Religious Exemptions From Military's Vaccine Mandate

Yet another group of military personnel have filed suit challenging the military's COVID vaccine mandate.  As in a number of other cases, plaintiffs complain that while regulations allow religious exemptions, almost all applications for them are denied.  The complaint (full text) in Roth v. Austin, (D NE, filed 3/8/2022), was filed by 36 Air Force and Air National Guard members who allege that their rights under RFRA and the First Amendment have been infringed. WOWT reports on the lawsuit.

Sanctions On Russian Financial Firm Leads Counsel To End Representation In Litigation Over Recovery Of Jewish Books From Russia

As previously reported, for nearly two decades Agudas Chasidei Chabad has been attempting to recover from the Russian government two expropriated collections of valuable Jewish religious books and manuscripts. In 2013, the D.C. federal district court held the Russian government and three of its agencies in civil contempt, and imposed sanctions of $50,000 per day, for not complying with a 2010 default judgement ordering it to return the materials.  Plaintiffs have been attempting to find Russian assets to satisfy the sanctions by issuing subpoenas to various entities. In Agudas Chasidei Chabad of United States v. Russia Federation, (DC Cir., Dec. 3, 2021), the D.C. Circuit Court of Appeals refused to quash subpoenas directed at several Russian entities, including State Development Corp VEB.RF. (Background).  At the same time that an appeal to the U.S. Supreme Court was being planned, Russia began aggressive moves toward Ukraine. This led the U.S. to impose sanctions on VEB.RF. (Department of Treasury Press Release, Feb. 22, 2022). Now, as reported by Reuters, VEB.RF's lawyers in the litigation with Chabad, the global firm of Freshfields Bruckhaus Deringer, announced on Monday that it is ending its representation of VEB.RF. On Monday, the law firm filed a Motion (full text) with the D.C. Circuit seeking a stay of proceedings until VEB has obtained substitute counsel.

Suit Challenges DC's Remaining Mask Mandate For Catholic Schools

In Mayor's Order 2022-029 (Feb. 14, 2022), the District of Columbia lifted its COVID mask mandate for various business and recreation venues, and houses of worship, but continued the mandate for a number of facilities including "Public, public charter, private, parochial, and independent schools."  On Monday, suit was filed in the D.C. federal district court by parents of Catholic school students alleging that keeping the mask mandate on Catholic schools violates RFRA and the First Amendment. The complaint (full text) in Dugan v. Bowser, (D DC, filed 3/7/2022) alleges in part:

Defendants’ mandate requiring the children to wear masks in their Catholic school classrooms—while allowing children and adults to not wear masks nearly everywhere else—is arbitrary, unscientific, and irrational. Under Defendants’ policy, a child could sit for hours at the Wizards game at the crowded Capitol One Arena without wearing a mask, but she must cover her face for seven hours a day, the moment she steps into her Catholic school building....

In addition to unconstitutionally burdening Catholic schools and treating them unequally, Defendants’ prolonged mask mandate has had substantially detrimental effects on—and is continuing to significantly impede—the Parents’ children’s Catholic formation and education.

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

UPDATE: On March 11, ADF announced that the lawsuit has been voluntarily dismissed after D.C. revoked the mask mandate.  (Plaintiff's Notice of Voluntary Dismissal).

Questionnaire Upheld As Basis For Vaccine Religious Exemption

In Ferrelli v. State of New York Unified Court System, (ND NY, March 7, 2022), a New York federal district court upheld the system for determining whether employees are entitled to religious exemptions from the COVID vaccine mandate imposed on all judges and employees of the New York state court system. The court described the screening process for exemptions in part as follows:

[T]he two most common reasons for seeking a religious exemption were (1) concern about the connection between COVID-19 vaccines and fetal cells, and (2) concern about the sanctity or purity of the applicant’s body.... Because the committee often found the information in applicants’ personal statements insufficient to assess the basis for and sincerity of the belief, it created a supplemental form.... In particular, Section A inquires as to applicants’ use of other medications and vaccinations that were tested using fetal cell lines, and requests explanations of inconsistencies in past or present use of such products.... Section B requests information about other medicines, medical treatments, vaccines and/or foods from which the applicant abstains due to her religious beliefs; when she began abstaining; and why her faith requires such abstention.....

The court concluded that this exemption process was neutral and generally applicable, saying in part:

Defendants have not created a system of individualized exemptions and refused to extend it to religious hardships. Rather, they have created a system of religious exemptions and refused to extend it to Plaintiffs based on responses, or lack thereof, to a supplemental form.

Pentagon Asks Supreme Court To Stay Injunction Obtained By Navy SEALS Who Object To Vaccines

 Yesterday in Austin v. U.S. Navy Seals 1-26 the Pentagon filed with the Supreme Court an Application (full text) for a stay while appeals are pending of an injunction issued by a Texas federal district court. In the case, the district court issued a preliminary injunction barring the Navy from imposing its COVID vaccine mandate on 35 Navy service members who have religious objections to the vaccines. (See prior posting.) The  Pentagon sought a stay of the injunction from the 5th Circuit insofar as it precludes the Navy from considering vaccination status in making deployment, assignment, and other operational decisions. The 5th Circuit refused to grant the stay. (See prior posting.)  In its Application to the Supreme Court, the Pentagon contends in part:

[E]ven if respondents’ claims had merit, respondents would not be entitled to an injunction dictating the Navy’s deployment, assignment, and operational decisions.... An injunction that trenches on core Article II prerogatives concerning which military servicemembers are qualified for which missions  ... has no precedent in our Nation’s history.

The Application was filed with Justice Alito who called for appellees to respond by March 14. SCOTUSblog reports on the filing.

Christian Student Sues His High School For Bullying and Harassment

 Suit was filed last week in a Florida federal district court by a Christian high school student against his public charter school alleging bullying and harassment by students, reinforced by the school, because he regularly brought a Bible to school and read it during his free time.  The complaint (full text) in Ortiz v. Mater Academy, Inc., (SD FL, filed 2/28/2022) summarizes the allegations as follows:

Nicholas Ortiz, a 14-year-old freshman, was discriminated and retaliated against by his high school, Mater Academy, because he is a Christian. Nicholas repeatedly made the school aware of a pattern of pervasive bullying by his fellow students, bullying that was reinforced by the words and actions of the school. Yet the school did not just sweep Nicholas's bullying claims under the rug-- failing to report them as required under the law-- they retaliated against Nicholas for reporting the harassment.... The school validated the despicable false rumors about Nicholas being broadcast on social media, [and] denied Nicholas due process....

The 57-page complaint sets out in detail the instances of bullying and harassment, including fellow-students ripping pages from his Bible. Numerous social media postings are reproduced in the complaint. The complaint alleges 1st and 14th Amendment violations as well as various state law claims. Christian Headlines reports on the lawsuit.

Code Enforcement Against Buddhist Temple Did Not Violate Free Exercise Clause Or RLUIPA

In Temple of 1001 Buddhas v. City of Fremont, (ND CA, March 4, 2022), a California federal district court dismissed a suit by a Miaolan Lee who lives on property owned by the Temple of 1001 Buddhas challenging the city's enforcement of the state's building, electrical and plumbing codes. Among others, the court dismissed plaintiff's free exercise and RLUIPA claims, saying in part:

Although the code enforcement does not permit her to use (for any purpose) the three buildings that are in severe noncompliance, Lee can exercise her religion elsewhere on her property. The code enforcement does not at all “coerce [her] into acting contrary to [her] religious beliefs or exert substantial pressure on [her] to modify his behavior and to violate [her] beliefs.” ...

Lee argues that the City violated RLUIPA when West “instruct[ed] Plaintiff Lee that she could only pray on the property in the main house or in the dome Meditation Hall and nowhere else on the Real Property.” ... Lee contends that this act was “an implementation of a land use regulation.”... [T]he Court now concludes that Lee does not state a claim on this basis because Lee does not plausibly allege that this remark constituted the “application of a zoning or landmarking law” within the meaning of RLUIPA.

Recent Articles Of Interest

From SSRN:

• Mark Rienzi, Religious Liberty and Judicial Deference, (Notre Dame Law Review, 2022).
• Sherif Girgis, Defining 'Substantial Burdens' on Religion and Other Liberties, (August 26, 2021).
• Netta Corren Barak, Yoav Kan-Tor, & Nelson Tebbe, Examining the Effects of Antidiscrimination Laws on Child Welfare: Law on the Books, (February 25, 2022).
• Bradley J. Lingo & Michael Schietzelt, A Second-Class First Amendment Right? Text, Structure, and Free Exercise After Fulton, (February 25, 2022).
• Samuel J. Levine, The Supreme Court’s Hands-Off Approach to Religious Questions in the Era of COVID-19 and Beyond, (24 J. Const. L. 276 (2022)).
• Anna Offit, Religious Convictions, (101 N.C. L. Rev. __ (Forthcoming).
• Robin S. Maril, The Administrative State and the Executive Establishment of Religion, (February 28, 2022).
• Robert C. Blitt, Human Rights and Disinformation Under the Trump Administration: The Commission on Unalienable Rights, (St. Louis University Law Journal, Vol. 66, 2021).
• Sonya G. Bonneau, The Romantic Author as Compelled Speaker,(March 1, 2022).

From SSRN (Reproductive Rights):

• Robert A. Bohrer, A Freezer Chest of Frozen Embryos: Valuing Lives, (February 22, 2022).
• Itay Ravid & Jonathan Zandberg, The Future of Roe and the Gender Pay Gap: An Empirical Assessment, (March 2, 2022).
• Jeffrey A. Parness, Abortion and Safe Haven Laws, (93 University of Colorado Law Review Online (2022 Forthcoming)).

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

• Barry Winston Bussey, Not Set in Stone: Constitutional Religious Rights and Direct Democracy in Canada, (Direct Democracy Practices at the Local Level, edited by Christophe Emmanuel Premat, IGI Global, 2022, pp. 154-178).
• Smriti Parsheera, Half the Land with Half the Sky: Seeking Inheritance Rights for Lahaul's Tribal Women, (February 22, 2022).
• Chhavi Tiwari, Srinivas Goli, & Mohammad Zahid Siddiqui, Poverty, Wealth Inequality, and Nancial Inclusion among Castes in Hindu and Muslim Communities in Uttar Pradesh, India (January 4, 2022), (Journal of International Development. Forthcoming).
• Nizamuddin Ahmad Siddiqui, Personal Laws in India: A Theoretical Investigation from the Perspective of Muslim Personal Law, (1(1) Journal of Law and Religious Affairs 63 (2021)).

From SmartCILP:

• Ralph Gants, Remarks at the Islamic Society of Boston Cultural Center, 62 Boston College Law Review 2745-2746 (2021).