Public School Districts Challenge Expansion Of Ohio's Voucher Program

Suit was filed yesterday in an Ohio state trial court by five school districts and an organization comprised of dozens more, as well as by parents of school students, challenging the Ohio legislature's recent expansion of the EdChoice voucher program. The complaint (full text) in Columbus City School District v. State of Ohio, (OH Com. Pl., filed 1/4/2022), alleges that the expanded program violates Article VI, Sec. 2 of the Ohio Constitution which calls for creation of "a thorough and efficient system of common schools throughout the State" and provides that "no religious or other sect, or sects, shall ever have any exclusive rights to, or control of, any part of the school funds of this state." The complaint alleges in part:

148. The General Assembly’s continuing efforts to expand the EdChoice Program have been undertaken with full knowledge that these state funds would overwhelmingly benefit parochial schools, at the expense of Ohio’s public school students.

149. These private sectarian institutions will receive exclusive and unfettered control of approximately $250 million of Ohio’s school funding in Fiscal Year 2022....

150. Diverting almost a quarter of a billion dollars of taxpayer funding to the exclusive control of parochial schools violates the framers’ intent in retaining the full text of Article VI, Section 2 to ensure that public education funds would not be used to support religious sects, including parochial schools.

Columbus Dispatch reports on the lawsuit.

Consent Decree Entered In Suit Claiming Religious Discrimination In Action Against Mosque Construction

 A consent decree (full text) was entered yesterday in a Mississippi federal district court in Abraham House of God and Cemetery, Inc. v. City of Horn Lake, (ND MS, Jan. 3, 2022). The suit alleged that the City of Horn Lake denied approval of the site plan for a proposed mosque because of religious animus. (See prior posting.) The consent decree requires the city to approve the site plan within two weeks, and to act promptly on future applications for permits relating to construction of the mosque.  ACLU issued a press release announcing the filing of the consent decree.

11th Circuit: Punitive Damages For Non-Physical Injuries Are Available To Inmate Under RLUIPA

In Mays v. Joseph, (11th Cir., Jan. 3, 2022), the U.S. 11th Circuit Court of Appeals held that a prisoner may recover punitive damages for violation of his religious exercise rights under RLUIPA in a suit against a prison warden in the warden's individual capacity.  In the case, plaintiff claimed that the Georgia Department of Corrections' grooming policy that barred him from growing his hair or a goatee longer than three inches violated his rights to express his religion. The court held that while an incarcerated plaintiff may not recover compensatory damages for mental or emotional injuries absent physical injury, he can recover punitive damages and nominal damages. Here plaintiff had waived his nominal damage claim.

Maneuvering Continues In Challenge To Texas Heartbeat Abortion Law

Procedural maneuvering continues in the challenge by abortion providers to the Texas "heartbeat" abortion law. The courts have kept the Texas law in effect while the maneuvering goes on, with Texas seeking to delay proceedings as long as possible and plaintiff abortion providers seeking to speed them forward.  

The U.S. Supreme Court held that the law could be challenged despite the state's attempt to draft the law to prevent anyone from being able to do so because there were still some state officials involved in enforcing the law. The Supreme Court then remanded the case to the 5th Circuit (which had previously allowed the law to remain in effect), instead of to the district court (which had previously enjoined the law while appeals were pending). In the 5th Circuit, Texas is seeking to have the question of whether state officials are in fact still involved in enforcing the law certified to the Texas Supreme Court for resolution, while the abortion providers challenging the law contend that the U.S. Supreme Court has already decided that issue. The 5th Circuit has scheduled oral arguments for Friday on the appropriateness of certifying the case, as well as on other jurisdictional questions.

 So yesterday, in In re Whole Woman's Health, (U.S. Sup. Ct., filed 1/3/2022), the plaintiffs in the case filed a petition (full text) with the U.S. Supreme Court asking it to issue a writ of mandamus directing the Court of Appeals to remand the case immediately to the district court. Texas Tribune reports on these developments.

Navy Enjoined From Applying Vaccine Mandate To Plaintiff Religious Objectors

 In U.S. Navy SEALs 1-26 v. Biden, (ND TX, Jan. 3, 2022), a Texas federal district court issued a preliminary injunction barring the U.S. Navy from imposing its COVID-19 vaccine mandate on 35 Navy service members who are plaintiffs in the case.  The court held that plaintiffs need not exhaust their military remedies before suing because, while the Navy's policy provides for religious exemptions, the denial of each exemption request is predetermined.  Also, even if a religious exemption is granted, the service member is then permanently barred from deployment.

The court concluded that applying the vaccine mandate to plaintiffs violates the Religious Freedom Restoration Act, saying in part:

Because the Plaintiffs have demonstrated a substantial burden, Defendants must show that this burden furthers a compelling interest using the least restrictive means....

Even if Defendants have a broad compelling interest in widespread vaccination of its force, they have achieved this goal without the participation of the thirty-five Plaintiffs here. At least 99.4% of all active-duty Navy servicemembers have been vaccinated.... The remaining 0.6% is unlikely to undermine the Navy’s efforts.... With a 99.4% vaccination rate, the Navy’s herd immunity is at an all-time high. COVID-19 treatments are becoming increasingly effective at reducing hospitalization and death....

Moreover, the Navy is willing to grant exemptions for non-religious reasons. Its mandate includes carveouts for those participating in clinical trials and those with medical contraindications and allergies to vaccines.... Because these categories of exempt servicemembers are still deployable, a clinical trial participant who receives a placebo may find himself ill in the high-stakes situation that Defendants fear.... As a result, the mandate is underinclusive.

The court also concluded that applying the mandate to plaintiffs violates the 1st Amendment's free exercise clause because the mandate is not neutral and generally applicable.

First Liberty issued a press release announcing the decision.

Australian Court Holds Diocese Vicariously Liable For Abuse By Priest

In the Australian state of Victoria, a trial court has held a Catholic Diocese vicariously liable for sexual abuse of a five-year old in 1971 by Bryan Coffee, an assistant parish priest. In DP (a pseudonym) v. Bird, (Sup. Ct. Victoria, Dec. 22, 2021), the court, in a very lengthy opinion, said in part:

278 By reason of —(a) the close nature of the relationship between the Bishop, the Diocese and the Catholic community in Port Fairy; (b) the Diocese’s general control over Coffey’s role and duties within St Patrick’s parish; (c) Coffey’s pastoral role in the Port Fairy Catholic community; and (d) the relationship between DP, his family, Coffey and the Diocese, which was one of intimacy and imported trust in the authority of Christ’s representative, personified by Coffey — the Diocese is vicariously liable for his conduct....

280 I am also satisfied that Coffey’s role as a priest under the direction of the Diocese placed him in a position of power and intimacy vis-à-vis DP that enabled him to take advantage of DP when alone — just as he did with other boys. This position significantly increased the risk of harm to DP....

However the court refused to hold the Diocese liable on a direct negligence claim, concluding that Coffee's actions were not a foreseeable risk.  Law and Religion Australia and ABC Australia News reports at length on the decision, saying that this is the first time that an Australian court has found a diocese vicariously liable for actions of a priest.  [Thanks to Law & Religion UK for the lead.]

Recent Articles of Interest

From SSRN:

• John Witte, 'Foreword,' to Norman Doe, ed., Church Laws and Ecumenism: A New Path for Christian Unity, (London: Routledge, 2020, vii-ix).
• John Witte, “Foreword,” to Robert F. Cochran, Jr., and Michael P. Moreland, eds., Christianity and Private Law (London: Routledge, 2021, viii-x).
• John Witte, The Right of Freedom of Religion: An Historical Perspective from the West, (in Silvio Ferrari, et al., eds., Routledge Handbook on Freedom of Religion and Belief (London: Routledge, 2020, 9-24).
• John Witte & Andrea Pin, Faith in Strasbourg and Luxembourg: The Fresh Rise of Religious Freedom Litigation in the Pan-European Courts , (Emory Law Journal 70 (2021): 587-661).
• John Witte, 'Introduction,' to John Witte, Jr., et al., eds., The Impact of the Law on Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies,  (Leipzig: Evangelische Verlagsanstalt GmbH, 2021), 15-30).
• John Witte, 'Foreword,' to Paul Valliere and Randall Poole, eds., Law and the Christian Tradition in Modern Russia, (London: Routledge, 2021, ix-xi).
• John Hasnas, Free Speech on Campus: Countering the Climate of Fear, (Georgetown Journal of Law & Public Policy, Forthcoming).
• David A. Kaye, The Troubled World of Hate Speech Regulation,  (Journal of Human Rights, 2022, forthcoming).
• Teresa D. Harrison & Jeremy P. Thornton, Further Evidence on Competition in Nonprofit Donor Market, (Nonprofit and Voluntary Sector Quarterly 2021).

Happy New Year 2022!

Dear Religion Clause Readers:

Happy New Year 2022! I hope that you continue to find Religion Clause a valuable source of information on the intersection of law, religion and public policy.  This past year, we saw a continuation of the trend to convert cultural and political disagreements with legislative or executive decisions into religious freedom or church-state claims that can be asserted before the courts.  Faced with this deluge, the Supreme Court's increased use of its "shadow docket" to decide important free exercise cases without full briefing and argument has become the subject of controversy.

In reporting on these and other developments, I have attempted to retain Religion Clause's objectivity and its policy of linking to extensive primary source material. I hope that the blog continues to have a reputation for reliability at a time when the objectivity of social media is increasingly called into question.  

Religion Clause is a niche blog whose readership includes lawyers at advocacy organizations, law school faculty, journalists, clergy, governmental agency personnel, students and others working professionally dealing with church-state relations and religious liberty concerns in the U.S. and around the world. I attempt to avoid excessive technical matters in my posts in order to make the blog accessible as well to non-lawyers with a general interest in the area.

2022 promises to be another year of interesting and important developments. I hope you will continue to follow them on Religion Clause.  In addition to accessing the blog directly, links to Religion Clause postings are available on Twitter, Facebook and through e-mail alerts from services listed near the bottom of the blog's sidebar.

Thanks again to all of you who are loyal readers-- both those who have followed Religion Clause for years and those of you who have only recently discovered the blog.  A special thanks to readers who have quickly sent me leads on recent developments, and to those who have alerted me to mistakes. I encourage you to recommend Religion Clause to colleagues, students and friends who might find it of interest.

Best wishes as we all face the challenges that 2022 brings to us.  I hope that we are able to deal with these challenges by respecting divergent viewpoints and supporting the foundational institutions of American democracy.

Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions. Best wishes for 2022.

Howard Friedman

Hebrew Israelite Student Seeks $4M In Damages For Coach's Punishment That Violated His Religious Dietary Requirements

Suit was filed yesterday in an Ohio federal district court by a Hebrew-Israelite high school football team member who was told to eat a pepperoni pizza as discipline for missing a mandatory weight class. When the student objected that eating pork was a violation of his religious beliefs, he was allowed to remove the pepperoni, but still was forced to eat the pizza with pork residue on it. The complaint (full text) in K.W. (Junior) v. Canton City School District, (ND OH, filed 12/29/2021) alleges 1st and 14th Amendment, as well as other, claims saying in part:

All Defendants were fully aware of Junior’s religious beliefs; however, Defendants established practices and implemented actions that were antisemitic and/or in direct violation of Plaintiffs’sincere religious beliefs. therefore violating 42 U.S.C. § 1983.

WHEREFORE, Plaintiffs demand compensatory damages of $3,000,000.00 and punitive damages of $1,000,000.00.... [as well as] injunctive relief....

Other dollar amounts are sought for other causes of action set out in the complaint.  WKYC News reports on the lawsuit.

Church Dispute Dismissed On Ecclesiastical Abstention Grounds

In Iglesia Pentecostal Filadelfia, Inc. v. Rodriguez, (TX App., Dec. 29, 2021), a Texas state appellate court affirmed a trial court's dismissal of an internal church dispute on ecclesiastical abstention grounds. Jose  Rodriguez, Jr. took over as pastor of the church when his mother passed away. Plaintiffs sued on behalf of the church challenging Rodriguez's actions in that role. The court said in part:

Here, the trial court found that neither side complied with the Church’s organizational and governing documents, including the Bylaws, a decision we find support for in the record .... Therefore, we find that a determination of the Church’s claims at issue would impermissibly embroil the trial court in a religious controversary to include choosing its church leaders....

Further, the Church’s second declaration is clearly a matter of church authority or governance as opposed to substantively and effectively a property dispute as it asks the trial court to declare that “[Jose Jr.] has no right or authority to act on the behalf of [the Church] and its congregation.”

Moreover, to develop the Church’s conversion claim would impermissibly force the trial court to decide the Church’s corporate governance because to do so would require it to determine which board to inquire of for the reason behind the alleged unlawful use of funds.

India Refuses To Allow Mother Theresa's Charity To Receive Further Funds From Abroad

The Guardian reports that on Christmas Day, India's Ministry of Home Affairs refused to renew the license allowing Missionaries of Charity to continue to receive financial support from abroad.  Missionaries of Charity, which runs a network of charities across India, was founded by Mother Theresa in 1950. Accusations, denied by the Charity, are that it lures poor young Hindu women into becoming Christians by forcing them to read the Bible, recite Christian prayers and wear a cross around their neck. Hardline Hindus say that the Charity is intentionally hurting the religious sentiments of Hindus.

Muslim Woman Sues Gun Range For Religious Discrimination

A religious discrimination suit was filed yesterday in a Missouri federal district court against a "faith, family and freedom" based indoor gun range that refuses admission to Muslim women wearing hijabs. The complaint (full text) in Barakat v. Brown, (WD MO, filed 12/28/2021) alleges that this policy of the Frontier Justice gun range, owned by a Christian family, violates the public accommodation anti-discrimination provisions in Title II of the 1964 Civil Rights Act.  CAIR issued a press release announcing the filing of the lawsuit.

NY Governor Vetoes Bill Aimed At Preventing Hasidic Jews Moving Into Neighboring Town

Last week (Dec. 22), New York Governor Kathy Hochul vetoed Senate Bill 1811 which would have authorized the Town of Blooming Grove to create community preservation funds that could acquire property needed to preserve the character of the community. (Full text of bill.)  According to JNS, the Governor's Veto Memorandum read in part:

There have been well-documented tensions in Orange County between local elected officials and members of the Hasidic community. Similar tensions in the nearby Town of Chester resulted in litigation. It would be inappropriate to sign this legislation at this juncture, while facts are still being gathered about the situation. Therefore, I am constrained to veto this bill.

JNS reports further:

Blooming Grove is less than 10 miles north of the Chassidic enclave of Kiryas Joel, which has a population of some 30,000 people, nearly all of them chassidim. In recent years, members of the Orthodox community have been moving to nearby towns, including Chester and Blooming Grove. Restrictions on home building and land development are seen by some as an attempt to limit the growth of the Orthodox community in the region.

According to the Agudath Israel of America, which had been lobbying against the legislation for several months, “the real purpose of the bill is to buy up open lands in order to keep Chassidic Jews from purchasing this land and building homes in Blooming Grove … .”

British Employment Tribunal Says Equality Act Does Not Cover Discrimination Because Of Fear Of COVID

Among other things, Britain's Equality Act, §10, prohibits discrimination on the basis of "belief".  In X v. Y, (Empl. Trib., Dec. 13, 2021), an Employment Tribunal in England's city of Manchester held that an employee's fear of catching COVID-19 and her need to protect herself and others does not qualify as a "belief" for purposes of the Act.  The Tribunal said in part:

I do not find that the claimant’s fear amounts to a belief. Rather, it is a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat. Most (if not all) people, instinctively react to perceived or real threats of physical harm in one way or another.... However, a fear of physical harm and views about how best to reduce or avoid a risk of physical harm is not a belief for the purposes of section 10.

Law & Religion UK reports on the decision.

Deposit Of Nominal Damages Does Not Moot Student's Claim In Remand From Supreme Court

In March in Uzuegbunam v. Preczewski, the U.S. Supreme Court held that a college student's suit for nominal damages was not mooted when the school changed its challenged policies.  The case involves a challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature and proselytizing on campus. (See prior posting.) Now on remand, defendants sought to obtain dismissal of the case by depositing nominal damages of $2 with the court and having it paid over to plaintiffs. In Uzuegbunam v. Preczewski, (ND GA, Dec. 22, 2012), a Georgia federal district court held that this would not moot the case.  ADF issued a press release announcing the district court's decision.

Recent Articles of Interest

 From SSRN:

• Ronit Irshai, Feminist Research in Jewish Studies: What’s in a Name, (in: Re-Making the World: Christianity and Categories, Essays in Honor of Prof. Karen King, edited by Taylor G. Petrey (Germany: Mohr Siebeck, 2019), pp. 257-276).
• Ronit Irshai, The Construction of Gender in Halakhic Responsa by the Reform Movement: Transgender People as a Case Study, (Journal of Modern Jewish Studies, 18:2, 160-176 (2019).
• Pamela Laufer-Ukeles, The Power of Blood: The Many Faces of Menstruation in Jewish Law and Beyond, (Columbia Journal of Gender and Law, Vol. 41, No. 1, 2021).
• Derek Ross, Truth-Seeking and the Unity of the Charter’s Fundamental Freedoms, (98 Supreme Court Law Review (2d), 2020).
• Jimmy Chia-Shin Hsu, Right to Life and Capital Punishment in Transnational Judicial Dialogue, (Asian Journal of Comparative Law, First View, pp. 1 - 27 (2021)).
• Sital Kalantry, Do Reason-Based Abortion Bans Prevent Eugenics?, (Cornell Law Review, Vol. 107, No. 1, 2021).
• Muhammad Munir, One Step Forward, Two Steps Back: The Unending Twist and Turn Regarding the Law of Khul‘ and its Exposition by the Superior Courts in Pakistan, (Manchester Journal of Transnational Islamic Law & Practice (MJTILP) Volume 17, Issue 1:2021, pp. 133-149).

From SmartCILP:

• Charles Adside III, The Establishment Clause Forbids Coercion, Not Cooperation, between Church and State: How the Direct Coercion Test Should Replace the Lemon Test, 95 North Dakota Law Review 533-568 (2020).
• Michael J. Broyde & Alexa J. Windsor, In Contracts We Trust (and No One Can Change Their Mind)! There Should Be No Special Treatment for Religious Arbitration, 21 Pepperdine Dispute Resolution Law Journal 1-42 (2021).

Top 10 Religious Liberty and Church-State Developments Of 2021

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year.  My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention. The selection of top stories obviously involves a good deal of subjective judgment.  This year many developments were interrelated, so deciding what counts as a separate development was a challenge.  I welcome e-mail comment from those who disagree with my selection of top stories.  Here are my Top Ten picks:

1. A flood of court decisions on religious freedom challenges to COVID-19 restrictions on worship services, followed by state measures to prevent future governmental closing down of church services

2. Supreme Court refuses to enjoin Texas heartbeat abortion law pending appeal, while allowing challenges to the unique law to proceed in lower courts.

3. Extensive challenges to the absence of religious exemptions in COVID vaccine mandates.

4. Supreme Court's increased use of its "shadow docket" to render important decisions.

5. Biden Administration reasserts bans on discrimination against transgender and gay individuals, while treatment of transgender individuals in athletic competitions and in classrooms by teachers who refuse to recognize their gender identity become important issues

6. Supreme Court in Fulton v. City of Philadelphia holds unanimously that Philadelphia has violated the free exercise rights of Catholic Social Services by refusing to contract it to provide foster care services unless it agrees to certify same-sex couples as foster parents. 

7. Congress and President take action against China over Uyghur genocide.

8. The United States returns as a member of the United Nations Human Rights Council.

9. Supreme Court rules on rights of chaplains to be in execution chambers.

10. U.S. bishops back down on denial of communion to President Biden over his views on abortion after Pope supports Biden.

Fraud and Emotional Distress Claims Against Archdiocese Are Dismissed

In Dux v. Bugarin, (MI App., Dec. 21, 2021), a Michigan state appellate court dismissed an intentional infliction of emotional distress (IIED) claim and a fraud claim growing out of the Archdiocese of Detroit's removal of an accused Catholic priest supported by plaintiffs. The court describes plaintiffs' claims:

In their IIED count, plaintiffs claimed defendants’ statement that the allegations of sexual abuse were credible was an “extreme and outrageous act.” In their fraud count, plaintiffs alleged the Archdiocese asked its parishioners, including plaintiffs, to donate money to the Catholic Services Appeal (CSA). Plaintiffs alleged the Archdiocese represented the donations would be used for church ministry and would not be used to settle claims “of any nature” against the Archdiocese.

Dismissing the IIED claim under the ecclesiastical abstention doctrine, the court said in part:

The trial court properly dismissed plaintiffs’ IIED claim because resolution of that claim would require the trial court to delve into matters of ecclesiastical policy concerning how the Archdiocese investigates and evaluates claims of sexual abuse made against its clergy.... [A]ny inquiry into the means and methods by which the Archdiocese evaluates such claims would require the trial court to inquire into ecclesiastical matters forbidden under the First Amendment.

Dismissing plaintiffs' fraud claims, the court said that one of the fraud claims-- that they were defrauded by the statement that donations would be used for the church "ministry"-- would require courts to impermissibly inquire into internal church matters. It would need to decide whether "ministry" includes investigation into sex abuse claims and providing treatment for victims. Turning to a second fraud claim, the court said in part:

Turning then to whether plaintiffs otherwise stated a claim for fraud on the basis of the statement that CSA donations would not be used to settle claims against the Archdiocese, plaintiffs’ claim is premised on the theory that the Archdiocese had a duty to disclose the information about the true purpose of the donations.

“Michigan courts have recognized that silence cannot constitute actionable fraud unless it occurred under circumstances where there was a legal duty of disclosure.”

School's Anti-Racism Curriculum Challenged As Religious Discrimination

Suit was filed yesterday in a Virginia state trial court by parents of a number of school children challenging the Albemarle County School Board's "Anti-Racism Policy" and the curriculum developed to implement it. The complaint (full text) in C__I__v. Albemarle County School Board, (VA Cir. Ct., filed 12/22/2021) alleges violations of a number of provisions of the Virginia state Constitution. The allegations include a religious discrimination claim which reads in part:

302. Defendants’ curriculum discriminates on the basis of religion by teaching that Christianity is a “dominant” “identity” that has oppressed “subordinate” “identities” such as Islam, Buddhism, Judaism, other non-Christian religions, and atheism....

304. Defendants’ curriculum discriminates against Christians by identifying them as “dominant” and an “identity” for others to work against.

305. Defendants’ curriculum discriminates against other religions by identifying them as “subordinate.”

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

Faith-Based Homeless Shelter Denied Injunction Against Alaska City's Anti-Discrimination Laws

In Downtown Soup Kitchen v. Municipality of Anchorage, (D AK, Dec. 20, 2021), an Alaska federal district court refused to grant injunctive relief to a faith-based homeless shelter for women that objected to Anchorage's newly revised public accommodation and housing anti-discrimination laws. The shelter refuses to house transgender women. The court concluded that the faith-based shelter failed to show a credible threat of enforcement of either the public accommodation or the housing sections of the new law. The city takes the position that the provisions do not apply to the shelter and disclaims any intent to prosecute. However the court held that the shelter does have standing to sue for damages for the nearly 3-month period before the city disclaimed any intent to prosecute under the housing provisions. Anchorage Daily News reports on the decision.