European Court Rules On Jehovah's Witness Right To Payment For Surgery Without Blood Transfusion

In A. v. Veselības ministrija, (Eur. Ct. Justice, Oct. 29, 2020), the European Court of Justice instructed a Latvian court on the criteria to apply in a case in which a Jehovah's Witness child living in Latvia needed heart surgery, but the family had religious objections to blood transfusions. The operation was available in Poland, but not in Latvia, without a transfusion. Latvia's health service refused to pay for the procedure to be done in Poland. The family claims that this amounts to illegal discrimination based on religion. The court concluded:

Article 8(5) and (6)(d) of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare, read in the light of Article 21(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a patient’s Member State of affiliation from refusing to grant that patient the authorisation provided for in Article 8(1) of that directive, where hospital care, the medical effectiveness of which is not contested, is available in that Member State, although the method of treatment used is contrary to that patient’s religious beliefs, unless that refusal is objectively justified by a legitimate aim relating to maintaining treatment capacity or medical competence, and is an appropriate and necessary means of achieving that aim, which it is for the referring court to determine.

Courthouse News Service reports on the decision.

1st Circuit Upholds Maine's Exclusion of Sectarian Schools From Tuition Reimbursement

In Carson v. Makin, (1st Cir., Oct. 29, 2020), the U.S. 1st Circuit Court of Appeals upheld Maine's statutory provisions that pay tuition to out-of-district public or private high schools for students whose districts do not operate a high school. However, to qualify to receive tuition assistance payments, a private school must be non-sectarian. Plaintiffs challenge this, particularly in light of the U.S. Supreme Court's Trinity Lutheran and Espinoza decisions. The court distinguished Supreme Court precedent as follows:

Accordingly, we proceed on the understanding that this restriction, unlike the one at issue in Espinoza, does not bar schools from receiving funding simply based on their religious identity -- a status that in and of itself does not determine how a school would use the funds that it receives to provide educational instruction.... Instead, we understand this restriction to bar BCS and TA from receiving the funding based on the religious use that they would make of it in instructing children in the tuition assistance program....

The difficulty Maine confronts is that many of its localities cannot feasibly provide the benefits of that free public education directly to their residents. Thus, Maine has had to adapt to that reality. In doing so, it has chosen to provide -- while still ensuring that any parent in Maine may send their child to a religious school at their own expense -- tuition assistance for those children who live in localities that operate no public secondary school of their own to attend a private school that will provide a substitute for what they cannot get from the government. 

In conditioning the availability of that assistance on the requirement that recipients use it for educational instruction that is as nonsectarian in content as the free public education that is not directly available to them, Maine transgresses neither the Free Exercise Clause nor the Establishment Clause, nor any of the other provisions of the federal Constitution that the plaintiffs invoke.

Courthouse News Service reports on the decision.

9th Circuit: No Qualified Immunity For Refusing Inmate's Religious Diet Request

In Thomas v. Baca, (9th Cir., Oct. 28, 2020), the U.S.9th Circuit Court of Appeals held that qualified immunity was not a defense under the facts of this case for prison officials who refused an inmate's request for a vegetarian-kosher diet. The inmate showed his request was rooted in deep religious belief. Officials asserted no penological interest to justify their refusal.

Indian Tribe Loses Free Exercise Claim In Suit Over Handling of Human Remains At Alamo

In Tap Pilam Coahuiltecan Nation v. Alamo Trust, Inc., 2020 U.S. Dist. LEXIS 201209 (WD TX, Sept. 23, 2020), a Texas federal district court dismissed a suit brought by an Indian tribe complaining that-- because they are not a federally recognized tribe-- they were excluded from the human remains protocol governing remains found during renovations at the Alamo. Plaintiffs contended that their exclusion discriminates against them because of their race and religion, and violates their free exercise rights. The court said in part:

Plaintiffs state that their core religious beliefs require that when a body is moved, they must perform a "forgiveness ceremony," seeking the deceased ancestor's forgiveness for disturbing their final resting place....

Plaintiffs are seeking to gain participation in the human remains protocol and permission to conduct their ceremony in the Alamo Chapel. Indeed, as Defendants point out, inclusion in the human remains protocol and permission to enter the Alamo Chapel outside of operating hours to conduct a religious ceremony are both "benefit[s] that [are] not otherwise generally available[.]" Patterson, 398 F. Supp. 3d at 123. Rather, they are benefits Plaintiffs seek to exact from Defendants. Such relief is unavailable under Lyng. 485 U.S. at 451; Patterson, 398 F. Supp. 3d at 123....

Suit Challenges Michigan Mask Mandate Imposed On Catholic School

Suit was filed last week in a Michigan federal district court challenging state COVID-19 orders requiring elementary school students to wear masks during the school day. The complaint (full text) in Resurrection School v. Gordon, (WD MI, filed 10/22/2020), alleges, among other things, that the requirement violates students' free exercise and free speech rights. The complaint, brought by a Catholic school along with some students and parents, alleges in part:

At the start of the school year in August 2020, Plaintiffs C.M., Z.M., and N.M. were beginning to engage in Catholic fellowship with their classmates and form relationships with other children based upon the teachings and example of Jesus Christ. Mandating Plaintiff Mianecki’s young children to wear facial coverings is hindering the formation of these bonds and prevents the body of Christ from freely associating....

When wearing facial coverings, Plaintiffs C.M., Z.M., and N.M struggle to engage in and celebrate the Mass....

For many, including Plaintiffs, forcing them to wear a face mask is forcing them to convey a message with which they disagree even when socially distanced in private homes or non- public schools. Wearing a mask conveys the message that the wearer has surrendered his or her freedom to the government, particularly in light of the facts of this current declared pandemic. During this current political climate, a mask has become a symbol. And because a mask has become a political symbol, the wearing of a mask is a form of symbolic speech. Consequently, via the mask mandates, Defendants are compelling Plaintiffs to engage in a form of expression and to convey a message with which they disagree.

Lansing State Journal reports on the lawsuit.

Suit Challenges Missionaries Class In Oklahoma Elementary School

 Suit was filed in an Oklahoma federal district court this week by secular humanists who object to an Oklahoma elementary school's "Missionaries" program which brings Christian missionaries into the school as part of the regular curriculum for students in pre-K through 8th grade. Students are not permitted to opt out of the class. The complaint (full text) in American Humanist Association, Inc. v. Elementary School District No. 22 of Adair County Oklahoma, (ED OK, filed 10/27/2020) alleges that the practice violates the Establishment Clause. American Humanist Association issued a press release announcing the filing of the lawsuit. [Thanks to Friendly Atheist via Mel Kaufman for the lead.]

President Sets Refugee Numbers for FY 2021 With Emphasis On Persecuted Minority Religions

In a Memorandum (full text) issued on Oct. 27, President Trump set the number of refugees to be admitted to the United States in FY 2021 (July 1, 2020 to June 30, 2021) as 15,000.  Of this number, 6,000 are unused spaces from FY 2020 that were not used because of the COVID-19 crisis.  The Presidential Determination set out in the Memorandum places particular emphasis on refugees who are the subject of religious persecution. 

5,000 of the spots are designated for refugees who have been persecuted or have a well-founded fear of persecution on account of religion, or who are admissible under the Lautenberg and Specter Amendments. Those amendments cover, among others, religious minorities in Iran.

4,000 of the spots are designated for refugees covered by the Refugee Crisis in Iraq Act of 2007 (12 Stat. 395). This includes Iraqis who were employed by the United States and Iraqis who are members of a persecuted religious or minority community.

5,000 of the spots are designated for others admitted under the United States Refugee Admissions Program.

The President's Memorandum also provides:

Additionally, I specify that persons from certain high-risk areas of terrorist presence or control, including Somalia, Syria, and Yemen, shall not be admitted as refugees, except those refugees of special humanitarian concern:  (1) who have been persecuted or have a well-founded fear of persecution on account of religion; ... [and certain other exceptions].

6th Circuit: Bus Ad Ban Is Unconstituitonal

In American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation (SMART), (6th Cir., Oct. 23, 2020), the U.S. 6th Circuit Court of Appeals held unconstitutional a Detroit public transit authority's rejections of an ad aimed at Muslims considering leaving Islam. The ad read:

Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com.

The ads were rejected under rules banning political ads and ads that hold up a group of people to scorn or ridicule.  The court said in part:

SMART’s ban on “political” ads is unreasonable for the same reason that a state’s ban on “political” apparel at polling places is unreasonable: SMART offers no “sensible basis for distinguishing what may come in from what must stay out.” Mansky, 138 S. Ct. at 1888. Likewise, SMART’s ban on ads that engage in “scorn or ridicule” is not viewpoint neutral for the same reason that a ban on trademarks that disparage people is not viewpoint neutral: For any group, “an applicant may [display] a positive or benign [ad] but not a derogatory one.” Matal v. Tam, 137 S. Ct. 1744.

Courthouse News Service reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Religious Affiliation of 2020 Electorate Reviewed

The Pew Research Center this week published an overview of the characteristics of the 2020 electorate. It had this to say about the religious affiliation of registered voters in the U.S.:

Christians account for the majority of registered voters in the U.S. (64%). But this figure is down from 79% as recently as 2008. The share of voters who identify as religiously unaffiliated has nearly doubled during that span, from 15% to 28%.

The share of White Christians in the electorate, in particular, has decreased in recent years. White evangelical Protestants account for 18% of registered voters today, down from 21% in 2008. During the same period, the share of voters who are White non-evangelical Protestants fell from 19% to 13%, while the share of White Catholics fell from 17% to 12%.

Around eight-in-ten Republican registered voters (79%) are Christians, compared with about half (52%) of Democratic voters. In turn, Democratic voters are much more likely than GOP voters to identify as religiously unaffiliated (38% vs. 15%).

4th Circuit Hears Oral Arguments In Conversion Therapy Ban Challenge

Yesterday the U.S. 4th Circuit Court of Appeals heard oral arguments in Doyle v. Hogan. (Audio of full oral arguments.) In the case, a Maryland federal district court dismissed free speech and free exercise of religion challenges to Maryland's ban on mental health professionals engaging in conversion therapy with minors. (See prior posting.) Courthouse News Service reported on yesterday's proceedings, saying that questions of standing to sue dominated the arguments.

University Student Government Court Orders Reinstatement of Student Senate President Ousted For Religious Views

 In a 19-page decision, the Florida State University Student Supreme Court held that a Catholic student who had been removed as Student Senate president because of religious views he expressed criticizing Black Lives Matter, the ACLU and Reclaim the Block as taking views opposed to Catholic teachings. The decision in Denton v. Daraldik, (FL Student Sup. Ct., Oct. 26, 2020), ordering plaintiff's reinstatement as Student Senate president, said in part:

Plaintiff was acting in his capacity as a private citizen when he made the statements for which he was removed. Plaintiff sent messages in the CSU group chat. The Catholic Student Union, while funded by SGA, operates to promote the teachings of the Catholic Church.... 

The Senates treatment of Plaintiff’s case violated its obligation under the First Amendment not to take action that is hostile to a religion or religious viewpoint. The Senators’ during debate reveal that they were neither tolerant nor respectful of Plaintiff’s religious beliefs when they held their vote of no-confidence. Here, as in Masterpiece, Plaintiff was entitled to a neutral decisionmaker who would give full and fair consideration to his sincerely held religious beliefs. The Senate did not act as a neutral decisionmaker in this case.

ADF issued a press release announcing the decision. (See prior related posting.)

Religious Claim To Cancel Social Security Participation Fails

 In Davis El v. Saul, 2020 U.S. Dist. LEXIS 194196 (MD TN, Oct. 20, 2020), a Tennessee federal district court adopted a magistrate's recommendation (2020 U.S. Dist. LEXIS 195880 (Aug. 31, 2020)) and dismissed a suit by plaintiff who claimed that his free exercise rights, and other constitutional rights, were violated because the government gave him no way to terminate his participation in the Social Security system. The court affirmed the magistrate's conclusion that the Anti-Injunction Act bars the suit.   The magistrate said in part:

Plaintiff does not deny that he could fill out and submit Form 4029 and thereby possibly receive a religious exemption. Instead, he argues that he should not have to follow the required procedure because he does not want a religious exemption to SSI; he wants to "cancel" the contract he perceives to exist between himself and SSA....

Plaintiff has provided no authority for his proposition that not being provided with an alternative to requesting a religious exemption is itself a First Amendment violation....

Because Plaintiff's claims ultimately seek to enjoin the assessment and collection of a federal tax and Plaintiff cannot satisfy either prong of the limited exception to the Anti-Injunction Act's jurisdictional bar, this Court lacks subject matter jurisdiction over Plaintiff's claims.

Court Refuses To Dismiss Indictment In Tree of Life Synagogue Case

In United States v. Bowers, (WD PA, Oct. 15, 2020), a Pennsylvania federal district court refused to dismiss an indictment under the federal Hate Crimes Prevention Act and the Church Arson Act brought against defendant charged in the 2018 attack on Pittsburgh's Tree of Life Synagogue. (Full text of Superseding Indictment.) The court rejected both the facial and the as-applied challenge to the Hate Crimes Act. The court said in part:

Each federal court to have considered the constitutionality of § 249(a)(1) has found it to be a valid exercise of Congressional power under the Thirteenth Amendment....

[T]he congressional intent behind §249(a)(1) makes clear that Congress intended to prohibit violence on the basis of real or perceived religions that “were regarded as races at the time of the adoption of the [Reconstruction] amendments.”... [T]herefore ... §249(a)(1) includes protection for Jewish people in that they were considered a distinct race when the Thirteenth Amendment was-applied.

Upholding the constitutionality of the Church Arson Act against a facial attack, the court said in part:

Congress had a rational basis to conclude that the conduct regulated by § 247 substantially affects interstate commerce.

Responding to defendant's as-applied challenge, the court said in part:

The Defendant’s as-applied challenge requires consideration of a developed factual record and the application of the statute to those facts. Thus, it is premature to determine the as-applied issue at this time.

Recent Articles of Interest

 From SSRN:

• Timothy Lubin, Dignity and Status in Ancient and Medieval India, (Human Dignity in Asia: A Dialogue between Law and Culture, edited by Jimmy Chia-Shin Hsu (Cambridge University Press, Forthcoming).
• Neil James Foster, Statutory Construction and Biblical Hermeneutics- Law in the Service of the Gospel?,  ((2020) 252 St Mark's Review 106-128).

From BYU Law Review, Law & Religion Issue:

• Andrew Koppelman, Gay Rights, Religious Liberty, and the Misleading Racism Analogy
• Shannon Gilreath, Anti-Gay Discrimination, “Conscience Exemptions,” and the Racism Analogy: A Reply to Professor Koppelman.
• James M. Oleske, Jr., In the Court of Koppelman: Motion for Reconsideration.
• Hon. J. Clifford Wallace, With an Even Hand: The Call for Pakistan’s Executive Task Force for Religious Tolerance.

US Signs Multinational Women's Health Declaration That Rejects Abortion

The U.S. Department of Health and Human Services announced that on Oct. 22, the United States co-sponsored a virtual signing ceremony for the Geneva Consensus Declaration on Promoting Women's Health and Strengthening the Family. The Declaration (full text) which calls for universal health care and supporting the role of the family was signed by 32 countries. It reads in part:

[We] Emphasize that “in no case should abortion be promoted as a method of family planning” and that “any measures or changes related to abortion within the health system can only be determined at the national or local level according to the national legislative process”;

... Reaffirm that “the child… needs special safeguards and care… before as well as after birth”....

The signatories agreed to work together to:

Improve and secure access to health and development gains for women, including sexual and reproductive health, which must always promote optimal health, the highest attainable standard of health, without including abortion;

Reaffirm that there is no international right to abortion, nor any international obligation on the part of States to finance or facilitate abortion, consistent with the long-standing international consensus that each nation has the sovereign right to implement programs and activities consistent with their laws and policies...

The primary co-sponsors of the Declaration are Brazil, Egypt, Hungary, Indonesia, Uganda and the United States. The signatories are mostly nations from Africa, the Middle East and Eastern Europe. 

[Thanks to Scott Mange for the lead.]

5th Circuit: Exception To Notice Requirement Under Texas RFRA Applies

 In Gonzales v. Mathis Independent School District, (5th Cir., Oct. 22, 2020), the U.S. 5th Circuit Court of Appeals affirmed a Texas federal district court's issuance of a preliminary injunction to prevent a public school's exclusion of a student from extracurricular activities. The school invoked its hair length requirement to bar two brothers from such activities. The brothers had each made a religious promise (promesa) to wear one lock of hair uncut and braided to protect their mother's pregnancy and to ask for a cure for one of the brothers who had contracted meningitis. The court concluded that one of the brothers was precluded from suing under the Texas Religious Freedom Restoration Act because he had not complied with the statutory requirements of giving 60 days advance notice of the suit. It found, however, that the other brother fell within an exception from the notice requirement

Poland's Top Court Invalidates Law Permitting Abortion In Cases of Fetal Defects

Amnesty International and AP report that yesterday Poland's Constitutional Court has held unconstitutional the provision in Poland's Act on Family Planning, Human Embryo Protection, and Conditions of Legal Pregnancy Termination that permits abortion in cases of  "severe and irreversible fetal defect or incurable illness that threatens the fetus’ life." In an 11-2 decision, Poland's top court further narrowed Poland's strict abortion law. According to AP:

The ruling came in response to a motion from right-wing lawmakers who argued that terminating a pregnancy due to fetal defects — the most common reason cited for legal abortions in Poland — violates a constitutional provision that calls for protecting the life of every individual.

The challenged law was introduced in 1993 as a hard-won compromise that also allows abortions when a pregnancy endangers a woman’s health or life, or results from rape or other illegal act. Even before Thursday’s ruling, many Polish women have sought abortions abroad.

In justifying its decision, the court said there can be no protection of the dignity of an individual without the protection of life. The verdict was announced by the court’s president, Julia Przylebska, a loyalist of the right-wing government.

[Thanks to Scott Mange for the lead.]

Title VII Religious Exemption Does Not Protect Against Suit Over Sexual Orientation Discrimination

 In Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., (SD IN, Oct. 21,2020), an Indiana federal district court held that a former Catholic school guidance counselor who was fired because of her same-sex marriage may bring a discrimination claim under Title VII. The court rejected the school's contention that the religious institution exemption in Title VII applies. The court said in part:

Sexual orientation is a protected class under Title VII, and the language and legislative history of Title VII indicate Congress intended that religious institutions remain subject to Title VII's prohibition on discrimination on the basis of a protected class. To be sure, this case requires a careful balancing of religious liberty and an employee's right to be free from discrimination. The proper balance is to interpret Title VII's religious exemption to allow a religious employer to make hiring decisions in favor of coreligionists without facing claims of religious discrimination, but to allow a plaintiff to bring claims of other forms of Title VII discrimination. The religious exemption does not bar Starkey's Title VII claims of discrimination on the basis of sexual orientation, retaliation, and hostile work environment....

So, the question then becomes: Does a religious reason for an employment decision bar a plaintiff's Title VII claim when the religious reason also implicates another protected class?  The exemption under Section 702 should not be read to swallow Title VII's rules. It should be narrowly construed to avoid reducing Title VII's expansive rights and protections.

 Indiana Lawyer reports on the decision.

Student Sues Over Ban On Shirt With Anti-Gay Message

Suit was filed in a Tennessee federal district court last week by a high school student and her father challenging a public school's interpretation of a Policy in its Student Handbook that bars clothing with offensive messages, including sexual connotations.  The school insisted that the Policy prohibits plaintiff from wearing a shirt featuring the message "homosexuality is a sin-- 1 Corinthians 6:9-10".  The suit contends that this violates plaintiff's free exercise and free speech rights. The complaint (full text) in B.A.P. v. Overton County Board of Education, (MD TN, filed 10/16/2020), alleges in part:

Plaintiffs have a personal belief in the Biblical mandate to spread the Gospel of Jesus Christ, and Plaintiff B.A.P. engages in activities, for the purpose of spreading the Gospel of Jesus Christ, that are prohibited by the [school's] Policy.

WZTV reports on the lawsuit.

USCIRF Hearing On Hate Speech Targeting Religious Groups

Yesterday the U.S. Commission on International Religious Freedom held a hearing on Combatting Online Hate Speech and Disinformation Targeting Religious Communities.  The USCIRF website has a video of the full hearing and transcripts of witnesses' testimony.