Biden Executive Order Permits Transgender Individuals To Serve In Military

Yesterday President Biden issued an Executive Order (full text) reversing the Trump Administration's 2018 transgender military service ban. In his remarks at the signing of the Executive Order, President Biden said in part:

this is reinstating a position that previous commanders and — as well as the Secretaries have supported.  And what I’m doing is enabling all qualified Americans to serve their country in uniform, and essentially restoring the situation as it existed before, with transgender personnel, if qualified in every other way, can serve their government in the United States military.

NPR reports on the Executive Order.

Annual AALS Law & Religion Bibliography Issued

The Association of American Law Schools Section on Law & Religion has released its 2020 Newsletter which includes a 23-page bibliography of books and articles.

Review Denied In Challenge To Nevada's Limit on Worship Services

The U.S. Supreme Court today denied a petition for certiorari before judgment in Calvary Chapel Dayton Valley v. Sisolak, (Docket No. 20-639, cert. denied 1/25/2021). (Order List.) At issue is the constitutionality of Nevada Governor Steve Sisolak's COVID-19 Order limiting indoor worship services to no more than 50 people with social distancing. The SCOTUSblog case page has links to all the pleadings in the case. The Supreme Court previously refused to enjoin enforcement of the Order pending appeal. (See prior posting.)

Supreme Court Dismisses and Vacates Judgment Below In Temporary Texas Abortion Ban Controversy

The U.S. Supreme Court today granted certiorari in Planned Parenthood v. Abbott, (Docket No. 20-305, Jan. 25, 2021) (Order List), summarily vacated the judgment below and remanded the case to the 5th Circuit with instructions to dismiss the case as moot. The case began as a challenge to Texas Gov. Greg Abbott's order temporarily barring most elective abortions during the COVID-19 crisis. Subsequently the Governor permitted abortion services to resume. At issue in the case now was whether the Supreme Court would vacate the Court of Appeals judgments below so that they would no longer serve as precedent in other cases. (See petition for certiorari.) The SCOTUSblog case page has links to all the pleadings in the case.

1st Circuit Again Upholds Boston's Refusal To Fly Christian Flag From City Hall Flagpole

In Shurtleff v. City of Boston, (1st Cir., Jan. 22, 2021), the U.S. 1st Circuit Court of Appeals, in a case coming before it for a second time, again upheld the city of Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. The court said in part:

Because the City engages in government speech when it raises a third-party flag on the third flagpole at City Hall, that speech is not circumscribed by the Free Speech Clause....  The City is therefore "entitled" to "select the views that it wants to express."...

The court also rejected plaintiffs' Establishment Clause claim, saying in part:

The exclusion of religious entities from a public  program, without more, does not violate the Establishment Clause. See Carson ex rel. O.C. v. Makin, 979 F.3d 21, 49 (1st Cir. 2020). Nor is proof of such exclusion evidence of hostility towards religion....

We add, moreover, that while the Establishment Clause may not require a secular-flag policy, the City "may act upon [its] legitimate concerns about excessive entanglement with religion" in administering its flag-raising program....

Our government-speech finding bolsters the conclusion that the City would be perceived to endorse the messages conveyed by the flags that it flies.

Jewish Organization Fails To Prove Violations In Denial of Its Use of Free After-School Space

In Chabad Chayil, Inc. v. School Board of Miami-Dade County Florida, (SD FL, Jan. 22, 2021), a Florida federal district court dismissed claims by a Jewish non-profit organization that the Miami-Dade County School Board and the County's Office of Inspector General (OIG) violated its 1st and 14th Amendment rights when it took away its rent free use of school facilities for after-school programs. The OIG, after investigating an anonymous complaint, claimed that Chabad Chayil violated various regulations in applying for rent-free use and in operating its program. The court concluded that Chabad Chayil had failed to show that its claims met the requirements for liability under 42 USC §1983. It "failed to allege facts showing that any School Board official or staff member was a final policymaker with respect to the decisions or actions that Chabad Chayil maintains were unconstitutional...." It failed to show a OIG custom or policy that would make it liable for free exercise violations. Chabad Chayil also failed to prove equal protection or due process violations.

9th Circuit Upholds California's Temporary Ban On Indoor Worship Services

 In South Bay United Pentecostal Church v. Newsom, (9th Cir., Jan. 22, 2021), the U.S. 9th Circuit court of Appeals affirmed a California federal district court's denial of a preliminary injunction to a church that objects to the state's COVID-19 ban on indoor religious services. The court describes the current restrictions:

California permits unlimited attendance at outdoor worship services and deems clergy and faith-based streaming services “essential,” but has temporarily halted all congregate indoor activities, including indoor religious services, within portions of the state currently identified by objective measures as being at high risk....

South Bay argues that the current restrictions on indoor services prohibit congregants’ Free Exercise of their theology, which requires gathering indoors.

In upholding the state's requirement, the court said in part:

Notably, in response to the State’s mountain of scientific evidence, South Bay has not pointed to anything in the record to support the notion that the lesser restriction that it seeks—100% occupancy with a reliance solely on mask-wearing, social distancing, and sanitation measures—would be effective to meet California’s compelling interest in controlling community spread. South Bay’s self-serving assertion that it has experienced no incidence of the virus among its worshipers is entirely anecdotal and undermined by evidence of outbreaks in similarly situated places of worship.

The court concluded, however, that 100- and 200-person caps for later stages of recovery are unconstitutional "because California has imposed different capacity restrictions on religious services relative to non-religious activities and sectors."

Recent Articles of Interest

 From SSRN:

• Craig Westergard, Haply a Minority's Voice May Do Some Good: Diversity at the United States Supreme Court, (29 Journal of Judicial Administration 174, 2020).
• Thomas Mohr, Religious Minorities and the Constitution of the Irish Free State, 1922-1937, (UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 1/2021).
• Sohail Wahedi, American Muslims: The Untouchables of American Constitutional Democracy?, (Idaho Law Review, Vol. 56, 2020, pp. 305-321).
• Alan Edward Brownstein & Thomas Charles Berg, Giving Our Better Angels a Chance: A Dialogue on Religious Liberty and Equality, (Journal of Appellate Practice and Process, volume 21, issue 2 (forthcoming)).
• Matthew Stevens, Centralism, Civil Rights, and Witchcraft,  (November 15, 2020).
• Michael Ramsden, Accountability for Crimes Against the Rohingya: Strategic Litigation in the International Court of Justice, (The Chinese University of Hong Kong Faculty of Law Research Paper Forthcoming).

Suit Challenges DOE's Conditioning of Federal Grants To Colleges On Free Exercise For Student Religious Groups

Suit was filed earlier this week in the D.C. federal district court challenging recent changes to Department of Education rules (see prior posting) on protection of free speech and religious freedom by colleges and universities receiving federal grants. The complaint (full text) in Secular Student Alliance v. U.S. Department of Education, (D DC, filed 1/19/2021) challenges this addition to DOE rules:

As a material condition of the Department’s grant, each State or subgrantee that is a public institution shall not deny to any student organization whose stated mission is religious in nature and that is at the public institution any right, benefit, or privilege that is otherwise afforded to other student organizations at the public institution (including but not limited to full access to the facilities of the public institution, distribution of student fee funds, and official recognition of the student organization by the public institution) because of the religious student organization’s beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs.

The complaint contends:

Under the guise of enforcing the First Amendment, the Rule bars public colleges and universities from requiring religious student organizations to comply with nondiscrimination requirements, including university rules and state laws specifying that university-recognized, university-funded student organizations may not bar students from club membership or leadership on the basis of characteristics such as race, religion, sex, sexual orientation, gender identity, disability status, or status as a veteran.

American Atheists issued a press release announcing the filing of the lawsuit.

Biden Issues Executive Order Calling For Agency Rules To Protect Against LGBTQ Discrimination

On Wednesday, President Biden issued an Executive Order (full text) calling on all federal agencies that administer statutes barring sex discrimination to review any of their regulations that do not assure that this protection extends to discrimination on the basis of gender identity and sexual orientation. The Executive Order begins with a broad policy statement:

Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.  Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.  Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes.  People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination.  All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.

It also takes the position that the Supreme Court's recent Title VII Bostock decision applies equally to the sex discrimination bans in Title IX of the Education Amendments of 1972, the Fair Housing Act and the Immigration and Nationality Act. NBC News reports on the Executive Order.

Biden-Harris Statement on Anniversary of Roe v. Wade

 This morning the White House issued a Statement from President Biden and Vice President Harris on the 48th Anniversary of Roe v. Wade (full text) which reads:

Today marks the 48th anniversary of the U.S. Supreme Court’s landmark ruling in Roe v. Wade.  

In the past four years, reproductive health, including the right to choose, has been under relentless and extreme attack.  We are deeply committed to making sure everyone has access to care – including reproductive health care – regardless of income, race, zip code, health insurance status, or immigration status. 

The Biden-Harris Administration is committed to codifying Roe v. Wade and appointing judges that respect foundational precedents like Roe.  We are also committed to ensuring that we work to eliminate maternal and infant health disparities, increase access to contraception, and support families economically so that all parents can raise their families with dignity.  This commitment extends to our critical work on health outcomes around the world. 

As the Biden-Harris Administration begins in this critical moment, now is the time to rededicate ourselves to ensuring that all individuals have access to the health care they need.

U.S. Catholic Bishops Call For Biden To Change His Policies On Abortion Rights

The head of the U.S. Conference of Catholic Bishops, Archbishop José H. Gomez, released a lengthy statement (full text) on Wednesday as Joe Biden was inaugurated as U.S. President. The statement particularly focuses on Biden's stance on abortion, saying in part:

I look forward to working with President Biden and his administration, and the new Congress....

Working with President Biden will be unique, however, as he is our first president in 60 years to profess the Catholic faith.... [I]t will be refreshing to engage with a President who clearly understands, in a deep and personal way, the importance of religious faith and institutions. Mr. Biden’s piety and personal story, his moving witness to how his faith has brought him solace in times of darkness and tragedy, his longstanding commitment to the Gospel’s priority for the poor — all of this I find hopeful and inspiring.

At the same time, as pastors, the nation’s bishops are given the duty of proclaiming the Gospel in all its truth and power, in season and out of season, even when that teaching is inconvenient or when the Gospel’s truths run contrary to the directions of the wider society and culture. So, I must point out that our new President has pledged to pursue certain policies that would advance moral evils and threaten human life and dignity, most seriously in the areas of abortion, contraception, marriage, and gender. Of deep concern is the liberty of the Church and the freedom of believers to live according to their consciences....

For the nation’s bishops, the continued injustice of abortion remains the “preeminent priority.”...

Rather than impose further expansions of abortion and contraception, as he has promised, I am hopeful that the new President and his administration will work with the Church and others of good will.... My hope is that we can begin a dialogue to address the complicated cultural and economic factors that are driving abortion and discouraging families.

Pakistani Agency Threatens U.S. Website Owners With Sanctions Because of Ahmadi Content

 AP reported yesterday that Pakistan’s Telecommunication Authority earlier this month ordered two American men to shut down their U.S.-based website Trueislam.com. According to AP:

The legal notice accuses Zafar and Khan, a lawyer, of violating Pakistani laws for hosting and disseminating content on their website related to members the Ahmadi community who are “not allowed to preach or propagate their faith or invite others to accept their faith."

The notice also threatened a fine of $3.1 million as well as charges under Pakistan's controversial blasphemy law. As explained by AP:

Pakistan’s parliament declared Ahmadis non-Muslims in 1974. Since then, they have repeatedly been targeted by Islamic extremists in the Muslim-majority nation. An Ahmadi can get 10 years in prison for claiming to be a Muslim.

5th Circuit En Banc Hears Oral Arguments On Texas Abortion Restrictions

Yesterday the U.S. 5th Circuit Court of Appeals sitting en banc heard oral arguments in Whole Women's Health v. Paxton. (Audio of full oral arguments). The full court is rehearing the case after a 3-judge panel last October by a 2-1 vote (full text of panel majority decision) held unconstitutional a Texas statute that requires women to undergo a medically unnecessary procedure to cause fetal demise before obtaining a dilation and evacuation (D&E) abortion. Courthouse News Service reports on the oral arguments.

Expanded Contraceptive Mandate Exemptions Again Upheld

Last July in Little Sisters of the Poor v. Pennsylvania, the U.S. Supreme Court rejected two kinds of challenges to the Trump Administration's expanded conscience exemptions from the Affordable Care Act's contraceptive coverage mandate. the Court held that the relevant federal departments had authority to promulgate the rules, and that the procedural process used to adopt the rules was valid. The case was remanded for consideration of any other issues. (See prior posting.) Now in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, (D MA, Jan. 15, 2021), a Massachusetts federal district court on remand held that the expanded exemptions are not arbitrary and capricious, and do not violate either the Establishment Clause or the Equal Protection guarantee of the 5th Amendment. In rejecting the Establishment Clause challenge, the court said in part:

Permitting entities to practice their beliefs as they would in the absence of the relevant government-imposed regulations does not, in this instance, rise to an unconstitutional violation of the Establishment Clause.

Suit Challenges Trump Administration's Loosening of Limits On Faith-Based Federally Funded Programs

Suit was filed this week in a New York federal district court by seven advocacy groups challenging the Trump Administration's loosening of restrictions on faith-based organizations' operation of programs and activities funded by federal grants. The complaint (full text) in MAZON: A Jewish Response to Hunger v. Azar, (SD NY, filed 1/19/2021) alleges in part:

Because the Agencies provide no reasonable justification for the rule change, because they fail to account for the harms caused by the 2020 Rule, because their reasoning is inconsistent and contrary to the record, and because they fail to consider obvious alternatives, the 2020 Rule is arbitrary and capricious in violation of the APA.

The complaint explains the challenged rule as follows:

The 2020 Rule eliminates the common-sense and agreed-upon requirements from the 2016 Rule, such as that beneficiaries receiving services from a faith-based provider receive a notice of their rights not to be discriminated against based on religion and the option to request a referral to an alternate provider. These requirements imposed virtually no burden, but provided beneficiaries with much-needed information empowering them to protect their own religious liberty.

The 2016 rule reflected a consensus proposal of a number of different interest groups. American Atheists issued a press release announcing the filing of the lawsuit.

Biden Ends Trump Administration's "Muslim-Bans"

President Joe Biden yesterday issued a Proclamation (full text) revoking the Trump administration's controversial travel bans that mainly impacted Muslim countries. The Proclamation reads in part:

The United States was built on a foundation of religious freedom and tolerance, a principle enshrined in the United States Constitution.  Nevertheless, the previous administration enacted a number of Executive Orders and Presidential Proclamations that prevented certain individuals from entering the United States — first from primarily Muslim countries, and later, from largely African countries.  Those actions are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all....

Make no mistake, where there are threats to our Nation, we will address them.  Where there are opportunities to strengthen information-sharing with partners, we will pursue them.  And when visa applicants request entry to the United States, we will apply a rigorous, individualized vetting system.  But we will not turn our backs on our values with discriminatory bans on entry into the United States.

Transgender Health Care Mandate Violates RFRA Rights of Catholic Entities

In Religious Sisters of Mercy v. Azar, (D ND, Jan. 19, 2021), a North Dakota federal district court in a 57-page opinion, granted a number of Catholic-affiliated health care and health insurance entities, and several Catholic employers, an injunction barring enforcement against them of transgender anti-discrimination rules that require them to provide or provide insurance coverage for transgender transition procedures. The court concluded that the anti-discrimination rules violate plaintiffs free exercise rights under RFRA. Becket Law has more background on the case.

Secretary of State Pompeo Declares Chinese Crimes Against Humanity and Genocide Against Uyghurs

Yesterday, Secretary of State Mike Pompeo announced that the State Department has concluded that since March 2017 China has committed crimes against humanity against the predominantly Muslim Uyghurs and other members of ethnic and religious minority groups in Xinjiang. These crimes remain ongoing.  The State Department has also concluded that China has-- and continues to-- commit genocide against the Muslim Uyghurs and other minority groups in the Xinjiang Uyghur Autonomous Region in Western China. 

Clergy Who Will Speak At Biden's Inauguration Are Identified

Vox reports that the clergy who will deliver the invocation and benediction at President Joe Biden's inauguration today are men with whom Biden has close personal ties.  Fr. Leo O’Donovan who will deliver the invocation was president of Georgetown University from 1980- 2001. Biden's son Hunter was  student at Georgetown during part of this period.  Rev. Silvester Beaman who will deliver the closing benediction is pastor of the predominately African-American Bethel AME Church in Wilmington, Delaware.

Biden Attending Mass This Morning With Bipartisan Congressional Leadership

According to The Hill, this morning President-Elect Joe Biden is attending Mass at Cathedral of St. Matthew the Apostle in downtown Washington, DC. At his invitation top leaders of both parties in the House and Senate-- Nancy Pelosi, Kevin McCarthy, Chuck Schumer and Mitch McConnell-- will attend with him.

President Trump Declares Jan. 22 As National Sanctity of Human Life Day

Yesterday, President Donald Trump issued a Proclamation (full text) declaring January 22, 2021 as National Sanctity of Human Life Day. The Proclamation reads in part:

Every human life is a gift to the world.  Whether born or unborn, young or old, healthy or sick, every person is made in the holy image of God.  The Almighty Creator gives unique talents, beautiful dreams, and a great purpose to every person.  On National Sanctity of Human Life Day, we celebrate the wonder of human existence and renew our resolve to build a culture of life where every person of every age is protected, valued, and cherished.

This month, we mark nearly 50 years since the United States Supreme Court’s Roe v. Wade decision.  This constitutionally flawed ruling overturned State laws that banned abortion, and has resulted in the loss of more than 50 million innocent lives....

The United States is a shining example of human rights for the world.  However, some in Washington are fighting to keep the United States among a small handful of nations — including North Korea and China — that allow elective abortions after 20 weeks.  I join with countless others who believe this is morally and fundamentally wrong, and today, I renew my call on the Congress to pass legislation prohibiting late-term abortion....

President Proclaims National School Choice Week

President Trump yesterday issued a Proclamation (full text) declaring January 24-30 as National School Choice Week. The Proclamation reads in part:

In the land of the free, a child’s zip code should never determine their future....

I renew my call to the Congress to pass the Education Freedom Scholarships and Opportunity Act, so we can finally take a giant step towards true liberty for students.  This landmark legislation would give more than 1 million children the freedom to attend the school that best fits their needs, and would create more than $5 billion in annual tax credits for those who donate to local scholarship funds, empowering more families to choose the best educational setting for their children.

I also call on the Congress to pass the School Choice Now Act, which will ensure every State can fund elementary and high school scholarship programs, so that students do not lose access to their school of choice because of economic disruptions.

Martin Luther King, Jr. Federal Holiday Proclamation Issued

Today is Martin Luther King, Jr. Day and President Trump earlier this week issued the annual Proclamation (full text) declaring today a federal holiday. This year's Proclamation reads in part:

In the face of tumult and upheaval, Dr. King reminded us to always meet anger with compassion in order to truly “heal the hurts, right the wrongs and change society.”  It is with this same spirit of forgiveness that we come together to bind the wounds of past injustice by lifting up one another regardless of race, gender, creed, or religion, and rising to the first principles enshrined in our founding documents.

No Free Exercise Infringement When Court Allocates Vaccination Decision-Making Between Parents

 In In re Marriage of Crouch, (CO App., Jan. 14, 2021), a Colorado state appellate court remanded a trial court's refusal to modify the allocation of medical decision-making by divorced parents for their children. Originally both parents had agreed, largely for religious reasons, that their children should not be vaccinated. Subsequently the father changed his mind and sought to have them vaccinated.  The appeals court held that the trial court improperly imposed on the father an added burden in order to overcome the mother's right to free exercise of religion.  The court said in part:

A parent’s free exercise rights are not implicated by a court’s allocation of decision-making responsibility between parents.

Grand Junction Daily Sentinel reports on the decision.

Recent Articles of Interest

 From SSRN:

• Craig S. Wright, Establishing Meaning in the First Amendment,  (October 25, 2020).
• Margo A. Bagley, Irene Calboli & Maria Lillà Montagnani, Exploring Intellectual Property Through the Lens of Religious Thought,  (Handbook on Intellectual Property Research, Oxford University Press (2020, Forthcoming)).
• Mohammad Fadel, DNA Evidence and the Islamic Law of Paternity in Light of Maqāṣid Al-Sharīʿa, (December 31, 2020).
• Maximilian Lakitsch, Understanding Conflicts with Religious Dimensions in their Transnational Interrelations, (Graz Law Working Paper No 02-2021).
• Rachel Slepoi, Bostock's Inclusive Queer Frame, (107 Virginia Law Review Online (Forthcoming 2021)).
• Mohammad Fadel, International Law in General in the Medieval Islamic World, (The Cambridge History of International Law, Volume VIII: International Law in the Islamic World, Part I: International Law in the Medieval Islamic World (622-1453) (Forthcoming)).
• Chokri Kooli & Riadh Abadli, The Relevance and Impact of Laws Regulating Premarital Screenings in the Muslim Arab Countries,  (Journal of Sharia and Islamic Studies. 35(120), Pages 281-332, 2018).
• Natalie Silver & Renate Buijze, Tax Incentives for Cross-Border Giving in an Era of Philanthropic Globalization: A Comparative Perspective, (Canadian Journal of Comparative and Contemporary Law, 6(1), 2020, pp.109-150).

From SmartCILP:

• Sunny Dharod, Responding to "Stealth Theocracy": Propositions for India's Civil Courts, 32 Geogetown Journal of Legal Ethics 503-524 (2019).

Restrictions On Sex Offenders Survives Free Exercise Challenge

Tennessee Code §40-39-211(d)(1)(B) prohibits violent sexual offenders from remaining within 1000 feet of any playground. In State of Tennessee v. Colllier, (TN Ct. Crim. App., Jan. 14, 2021), Tennessee state appellate court rejected a free exercise challenge to this provision:

Defendant argues that the statute is overbroad because if “playground” includes both public and private playgrounds, the statute would prevent the Defendant from attending church services, as most churches have a playground.... The Free Exercise Clause does not protect all conduct associated with religious practice.... Conduct remains subject to regulation for the protection of society.”...  The Defendant remains free to hold whatever beliefs he may choose and privately practice religion as he wishes. However,... [t]he State’s “paramount” interest in “protect[ing] the public from [sexual] offenders” allows it to “define” and limit the extent of the Defendant’s “freedom to act.”

Religious Freedom Day Presidential Proclamaton

President Trump issued a Proclamation (full text) this week declaring December 16 as Religious Freedom Day. The date, commemorated annually, marks the anniversary of Virginia's adoption of the Virginia Statute for Religious Freedom in 1786. President Trump's Proclamation is largely a catalogue of steps taken by his administration to further religious freedom, saying in part:

Over the past 4 years, my Administration has worked tirelessly to honor the vision of our Founders and defend our proud history of religious liberty.  From day one, we have taken action to restore the foundational link between faith and freedom and promote a culture of religious liberty.  My Administration has protected the rights of individual religious believers, communities of faith, and faith-based organizations.  We have defended religious liberty domestically and around the world.

2nd Circuit: Vermont May Not Exclude Religious School Students From Dual Enrollment Program

In A.H. v. French, (2d Cir., Jan. 15, 2021), the U.S. 2nd Circuit Court of Appeals held that a preliminary injunction should issue to allow funding of a high school student's college enrollment under Vermont's Dual Enrollment Program. Vermont statutes pay for high schoolers in public schools to take two college courses. Students in private high schools are eligible to take advantage of the Dual Enrollment Program only if their high school tuition is publicly funded. Under a separate program-- the Town Tuition Program-- school districts that do not have high schools are to fund students' tuition in either out-of-district public high schools or secular private high schools. In this case, a student was denied participation in the Dual Enrollment Program because her high school was religious and thus was denied public funding under the Town Tuition Program. the court said in part: 

In these circumstances, the State’s reliance on the “publicly funded” requirement as a condition for DEP eligibility imposes a “penalty on the free exercise of religion.”...

Judge Menashi filed a concurring opinion. ADF issued a press release announcing the decision.

8th Circuit Hears Oral Arguments In Missouri Vaccination Exemption Case

On Tuesday, the U.S. 8th Circuit Court of Appeals heard oral arguments (audio of full arguments) in two cases consolidated for argument-- B.W.C. v. Williams and G.B. v. Crossroads Academy. In the cases, a Missouri federal district court rejected constitutional challenges by parents to the form that Missouri requires to be completed in order to claim a religious exemption for a school child from vaccination requirements. The form contains language strongly encouraging parents to obtain vaccinations for their children. (See prior posting.) Courthouse News Service reports on the oral arguments. [Thanks to Scott Mange for the lead.]

Apache Leaders Sue To Prevent Forest Service Transfer of Religious Site

Suit was filed this week in an Arizona federal district court on behalf of traditional Apache religious and cultural leaders seeking to prevent the U.S. Forest Service from transferring to mining companies a parcel of land used by the Western Apache Peoples for traditional religious ceremonies. The complaint (full text) in Apache Stronghold v. United States, (D AZ, filed 1/12/2021) alleges in part:

The deliberate and direct effect of the Defendants’ publicly stated plans and planned actions is to illegally annihilate the religious freedom rights of the Western Apache Peoples at a sacred and actively utilized religious place and traditional Western Apache cultural property known to the Apache since time immemorial as Chi’chil Biłdagoteel [or] as it is commonly known: “Oak Flat.” ***

[T]he Forest Service ... has suddenly publicly stated for the first time its intent to publish a Final Environmental Impact Statement ... on ... January 15, 2021.  That ... will immediately enable the Forest Service to attempt to convey a 2,422-acre parcel of “Forest Service land” to an entity owned entirely by foreign mining corporations, pursuant to a mandate in Section 3003 of the “Cromnibus” National Defense Authorization Act of 2015 ... slipped in at the 11th hour with a total federal government operational shutdown looming....

Apache Stronghold issued a press release announcing the filing of the lawsuit. 

DOL Says That Ministerial Exception Allows Non-Compliance With FLSA For Religious Teachers

The U.S. Department of Labor has released a January 8, 2021, Wage and Hour Opinion Letter (full text) concluding that the "ministerial exception" doctrine can create an exemption to the Fair Labor Standards Act's requirements. The letter concludes that a private religious day care and pre-school may pay its teachers on a salary basis that would not otherwise conform to the wage-and-hour requirements of the Fair Labor Standards Act if the teachers qualify as "ministers" for purposes of the ministerial exception. [Thanks to Heather Kimmel for the lead.]

8th Circuit Hears Arguments In College's Deregistration of Christian Student Group

The U.S. 8th Circuit Court of Appeals yesterday heard oral arguments in InterVarsity Christian Fellowship USA v. University of Iowa. (Audio of full oral arguments.)  In the case,  an Iowa federal district court held that the University of Iowa and three of its administrators violated the free speech and free exercise rights of a Christian student organization when it revoked its registered student organization status. The University's action was taken because Intervarsity Christian Fellowship required its leaders to affirm the group's Christian statement of faith. The court also denied defendants' claim of qualified immunity. (See prior posting.) Becket Law has a press release with links to some of the documents in the case.

New Law Elevates Anti-Semitism Monitor To Rank of Ambassador

Yesterday President Trump signed HR 221, Special Envoy to Monitor and Combat Anti-Semitism Act (full text). The new law elevates the Special Envoy to the rank and status of ambassador.

National Association of Realtors Bans Hate Speech By Its Members

In a previously little-noticed change to its Code of Ethics, the National Association of Relators has instituted a ban on hate speech by its 1.4 million members. The changes (full text) were adopted Nov. 13, 2020. Some of the changes became effective immediately and others became effective January 1, 2021. New Standard of Practice 10-5 provides:

REALTORS® must not use harassing speech, hate speech, epithets, or slurs based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity.

The Association has posted an FAQ document to explain the new policies.  KULR News yesterday reported on the changes:  

The sweeping prohibition applies to association members 24/7, covering all communication, private and professional, written and spoken, online and off. Punishment could top out at a maximum fine of $15,000 and expulsion from the organization.

NAR’s decision, allowing any member of the public to file a complaint, has alarmed other real estate agents, and also some legal and ethics experts, who say the hate speech ban’s vagueness is an invitation to censor controversial political opinions, especially on race and gender....

Some real estate agents fear the new speech code will be used to censor agents who express disapproval of affirmative action, gay marriage, transgender pronouns, Black Lives Matter, undocumented immigrants or other politicized issues.

Among those caught up in the uncertainty are real estate agents who are Christian preachers or Sunday school teachers, or anyone who expresses traditional religious views on gender and sexuality that are out of vogue in some circles today.

Supreme Court Allows Enforcement of FDA Rule On Medical Abortions While Appeals Are Pending

The U.S. Supreme Court in Food & Drug Administration v. American College of Obstetricians & Gynecologists, (US Sup. Ct., Jan 12, 2021), stayed a Maryland federal district court's injunction pending appeal of an FDA rule on access to medical abortions. The FDA requires mifepristone, one of two drugs necessary for a medical abortion, to be picked up in person by the patient at a hospital, clinic or medical office.  The district court had continued to enjoin that requirement during the COVID epidemic, even though in October the Supreme Court had sent the case back for further consideration by the district court.  Now, in a case on its so-called "shadow docket" (cases seeking emergency relief without full oral argument) the Supreme Court in an unsigned opinion has granted a stay of the injunction pending disposition of appeals in the 4th Circuit and Supreme Court.

Chief Justice Roberts filed a brief concurring opinion, stating in part:

The question before us is not whether the requirements for dispensing mifepristone impose an undue burden on a woman’s right to an abortion as a general matter. The question is instead whether the District Court properly ordered the Food and Drug Administration to lift those established requirements because of the court’s own evaluation of the impact of the COVID–19 pandemic. Here as in related contexts concerning government responses to the pandemic, my view is that courts owe significant deference to the politically accountable entities with the “background, competence, and expertise to assess public health.”

Justice Sotomayor, joined by Justice Kagan, filed a dissenting opinion, saying in part:

Due to particularly severe health risks, vastly limited clinic options, and the 10-week window for obtaining a medication abortion, the FDA’s requirement that women obtain mifepristone in person during the COVID–19 pandemic places an unnecessary and undue burden on their right to abortion....

What rejoinder does the Government have to the possibility that refusing to suspend the FDA’s in-person requirements for mifepristone during the COVID–19 pandemic will cause some women to miss the 10-week window altogether? No cause for concern, the Government assures this Court, because even if the FDA’s in-person requirements cause women to lose the opportunity for a medication abortion, they can still seek out a surgical abortion. What a callous response.

Justice Breyer dissented without filing or joining an opinion.  SCOTUSblog has further coverage of the decision.

Colorado Supreme Court: Same-Sex Common Law Marriages Before Obergefell Are Valid

In In re Marriage of LaFleur & Pyfer, (CO Sup. Ct., Jan. 11, 2021), the Colorado Supreme Court held that a court may recognize as a common law marriage a relationship entered into by same-sex couples before the U.S. Supreme Court's Obergefell decision that legalized same-sex marriages. Chief Justice Boatright concurred in part. Justice Samour dissented. In In re Marriage of Hogsett & Neale, decided at the same time, the Colorado Supreme Court refined the test for common law marriages in Colorado.

Supreme Court Will Hear Arguments Today In College Speech Policy Case

The U.S. Supreme Court hears oral arguments this morning in Uzuegbunam v. Preczewski. The case grows out of a challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature on campus. Subsequently, the school changed its policies.  The U.S. 11th Circuit Court of Appeals held that the change mooted plaintiff's claim for nominal damages. (See prior posting.) The 10:00 am oral arguments may be viewed live at this link. I will update this post to include a link to the written transcript of the arguments when it becomes available later today. SCOTUSblog's case page contains links to all the briefs filed in the case. Colorado Politics reports on the decisions.

UPDATE: Here are links to the transcript and audio of the oral arguments.

DOE Says Bostock Decision Does Not Apply To Title IX

 As reported by Education Week, the U.S. Department of Education has released a Jan. 8, 2021 Memorandum (full text) on the impact of the U.S. Supreme Court's Bostock decision on Title IX. While Bostock held that the ban on sex discrimination in Title VII includes discrimination on the basis of sexual orientation and gender identity, the DOE Memo concludes that Bostock does not apply to Title IX, saying in part:

[T]he Department’s longstanding construction of the term “sex” in Title IX to mean biological sex, male or female, is the only construction consistent with the ordinary public meaning of “sex” at the time of Title IX’s enactment.

The memo goes on to provide that some kinds of discrimination based on a person's homosexuality or transgender status may violate Title IX because the discrimination takes into account the person's biological sex.  Examples are employment discrimination and sexual harassment. However, in other educational situations, Title IX does not protect against sexual orientation or gender identity discrimination:

We believe the ordinary public meaning of controlling statutory and regulatory text requires a recipient providing separate athletic teams to separate participants solely based on their biological sex, male or female, and not based on transgender status or homosexuality, to comply with Title IX.

Under Title IX and its regulations, a person’s biological sex is relevant for the considerations involving athletics, and distinctions based thereon are permissible and may be required because the sexes are not similarly situated.

Disagreeing with two Circuit Court opinions, the memo states:

[W]e believe the plain ordinary public meaning of the controlling statutory and regulatory text requires a recipient providing “separate toilet, locker room, and shower facilities on the basis of sex” to regulate access based on biological sex.

The Memorandum also recognizes that religious exemptions under Title IX and RFRA still apply.

Supreme Court Denies Review In Discrimination Suit By Muslim Flight Attendant

The U.S. Supreme Court today denied review in Stanley v. ExpressJet Airlines, Inc., (Docket No. 20-495, certiorari deied 1/11/2021). (Order List.) In the case, the U.S. 6th Circuit Court of Appeals held that a Muslim flight attendant's religious discrimination claim should have been submitted to arbitration. It also rejected her retaliation claim. The flight attendant sought a religious accommodation so that she would not need to prepare or serve alcohol during flights. At issue in the case was the scope of the Railway Labor Act's mandatory arbitration provisions.

Supreme Court Denies Review In Clinic Buffer Zone Case

The U.S. Supreme Court today denied review in Bruni v. City of Pittsburgh, Pennsylvania, (Docket No. 19-1184, certiorari denied 1/11/2021). (Order List [scroll to pg. 25]). In the case, the U.S. 3rd Circuit Court of Appeals upheld a Pittsburgh ordinance that creates a 15-foot buffer zone outside any health care facility, including a Planned Parenthood clinic. Congregating, patrolling, picketing and demonstrating in such areas are banned. (See prior posting.) Justice Thomas added a statement to his vote to deny review, saying that in an appropriate case the Court should re-examine whether intermediate scrutiny is the correct test in buffer zone cases. ADF issued a press release on the denial of certiorari.

Recent Articles of Interest

 From SSRN:

• Jake Young, Qualified Immunity and Religious Liberty (December 10, 2020).
• Marc O. DeGirolami, Reconstructing Malice in the Law of Punitive Damages,14 Journal of Tort Law (Forthcoming).
• Louis E. Wolcher, The Time of Religion and Human Rights, (Journal of Human Rights, Vol. 14, No. 2, Pp. 137-82 (Fall 2019–Winter 2020)).
• Raphael Cohen-Almagor, Taking Profound Offence Seriously: Freedom of Speech v. Human Dignity, (Journal of Hate Studies, Vol. 16(1) (2020): 1–11).
• Husam Suleiman, Defining 'Islamic Finance' ,(October 29, 2020).

From SmartCILP:

• Bill Raley, How Conscientious Objectors Killed the Draft: The Collapse of the Selective Service during the Vietnam War, 68 Cleveland State Law Review 151-171 (2020).
• Winston Bowman, Feat of Clay: Muhammad Ali's Legal Fight against the Vietnam Draft, [Abstract], 44 Journal of Supreme Court History 307-324 (2019).

Supreme Court Wil Hear Challenge To California Donor-Disclosure Requirement

The U.S. Supreme Court on Friday granted certiorari in Thomas More Law Center v. Becerra (Docket No. 19-255, cert. granted 1/8/2021) and Americans for Prosperity Foundation v. Becerra (Docket No. 19-251, cert. grange 1/8/2021) (Order List), and consolidated the cases for oral argument.  At issue is a California administrative rule requiring non-profit organizations that wish to solicit tax deductible contributions in the state to file an annual report that includes an unredacted IRS Form 990 Schedule B. That Schedule contains the names and contributions of significant donors. Thomas More Law Center, which describes itself in its petition for certiorari as a non-profit organization that defends religious freedom, family values, and the sanctity of life, argues in its cert. petition:

For those associated with charities that speak on contentious matters—like Petitioner the Thomas More Law Center (the “Law Center”)—disclosing donor information to the Attorney General’s Registry poses an imminent danger of hate mail, violence, ostracization, and boycotts. Only the most stalwart supporters will give money under such a toxic cloud. Most will reasonably conclude that the risk of association is too great, with the result that groups who make the most threats will effectively shut down those with whom they disagree.

See prior related posting. SCOTUSblog case pages (1, 2) for the cases have links to all the pleadings and related materials.

Ministerial Exception Applies To Title IX Hostile Work Environment Claims

In Koenke v. Saint Joseph's University, (ED PA, Jan. 8, 2021), a woman employed by a Catholic university sued under Title IX claiming sexual orientation discrimination.  The court held that the Supreme Court's Bostock decision should be read to apply to sexual orientation discrimination under Title IX as well as under Title VII. All the parties agreed that plaintiff's position as Assistant Director for Music and Worship was a "ministerial" position for purposes of the ministerial exception. However plaintiff claimed that the ministerial exception does not apply to non-tangible employment discrimination claims such as hostile work environment.  The court disagreed, saying in part:

[H]ostile work environment claims, particularly those brought pursuant to Title VII or Title IX, clearly fall within the scope of cases banned by the ministerial exception.... The Supreme Court has not cabined the ministerial exception to tangible or intangible employment actions, and it is not for this Court to create such an exception to binding precedent.

HHS Adopts Amended Rules Reducing LQBTQ Anti-Discrimination Protections

The Department of Health and Human Services yesterday adopted final rules (full text of Release adopting rules) which narrow LGBTQ non-discrimination protections.  Previously, 45 CFR 75.300(c) barred discrimination on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation in receiving benefits of HHS programs or in administering funded programs. The newly amended rule instead reads:

It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services, to the extent doing so is prohibited by federal statute.

Previously 45 CFR 75.300(d) required grant recipients to treat same-sex marriages as valid. The newly amended rule instead reads:

HHS will follow all applicable Supreme Court decisions in administering its award programs.

In its 86-page release adopting the rule, HHS said that enforcing the prior rule may violate the Religious Freedom Restoration Act. ADF issued a press release announcing the adoption of the new rules. Americans United issued a press release criticizing the new rule.

Religious Leaders React To Storming Of Capitol By Trump Supporters

Religion News Service has published excerpts from separate statements from over 20 faith leaders across the country reacting to the storming of the U.S. Capitol yesterday by supporters of President Trump who were seeking to stop certification of Electoral College votes. For example, Southern Baptist Convention President J.D. Greear said:

Peaceable transitions of power have marked our Republic since the beginning. It is part of honoring and submitting to God’s ordained leaders whether they were our choice or not. We need you, @POTUS to condemn this mob. Let’s move forward together. Praying for safety.

Texas Supreme Court Hears Oral Arguments In Ecclesiastical Abstention Case

The Texas Supreme Court yesterday heard oral arguments in Diocese of Lubbock v. Guerrero, consolidated for argument with In Re Diocese of Lubbock. (Video of oral arguments.) The court's website describes the case:

In this defamation case by a deacon among a list of clergy published on the church website and in a press release, the issues are (1) whether the ecclesiastical-abstention doctrine bars the libel claim when a church internally decides to disclose inside information to the public at large and (2) whether Guerrero, the deacon, presented clear and specific evidence establishing a prima facie case of each element of his defamation claim.

Links to the pleadings and briefs in the cases can be found here and here. Courthouse News Service reports on the oral arguments.

Massachusetts COVID Requirements For Church Services Upheld

In Delaney v. Baker, (D MA, Jan. 6, 2021), a Massachusetts federal district court rejected plaintiff's claims that COVID-19 orders imposing maximum occupancy limits and requiring a mask and social distancing at Catholic religious services, as well as more general mask requirements, violate his free exercise rights. The court held that plaintiff's claims as to restrictions at religious services should be dismissed for lack of standing:

Delaney’s ... challenge ... that his First Amendment right to freely exercise his religion is infringed by the maximum occupancy limits, fails.... This injury is not concrete and particularized, nor is it actual or imminent.... The joint finding is devoid of any evidence that Delaney was ever denied access to his parish church, let alone that such a denial was due to Governor Baker’s occupancy limit....Delaney also argues that the mask mandate violates his religious beliefs and therefore his First Amendment right to the free exercise of his religion and that the social distancing guidelines for churches are an affront to the free exercise of his religion.... Setting aside, for a moment, the mask mandate outside of Delaney’s parish, the mask mandate within his parish and Delaney’s injury from the social distancing guidelines within his parish fail to allege a redressable injury.... Delaney is claiming that Governor Baker’s orders are the cause of his parish’s protocols which are infringing on the exercise of his religion.... There is no evidence, however, that the Archdiocese instituted its protocols only because of Governor Baker’s orders, and even had it done so, there is no evidence that a favorable ruling would result in redress of Delaney’s injury....

As to the more general mask requirement, the court said in part:

Governor Baker’s orders for all residents to wear masks are rationally related to the interest in stemming the spread of COVID-19 because, as the parties stipulated in the joint finding, “[i]t has been proven that the wearing of masks can slow the transmission of the spread of the coronavirus.”....

Delaney’s challenge suffers the same fate under the more deferential Jacobson standard.

Rules For Possessing Coyotes Survive Free Exercise Challenge

In Tranchita v. Callahan, (ND IL, Jan. 5, 2021), an Illinois federal district court rejected an attempt by a wildlife educator who cares for orphan coyote pups to recover a coyote taken from her by the Illinois Department of Natural Resources. The Department insists that the breeder must hold a hound running area permit in order to legally possess the coyote. Plaintiff claims, among other assertions, that the permit requirement violates her free exercise of religion rights:

Tranchita contends that it is her religious belief that she must “‘do unto others as [she] would have them do unto [her],’” that this belief “extends to animals as well as humans,” and that running hounds after coyotes violates this belief.

All the parties agreed that the permit requirement is neutral and generally applicable. The court then concluded:

Because the Hound Running Permit requirement is neutral and generally applicable, the Court must next ask whether the requirement “is rationally related to a legitimate government interest.”... And it is here that Tranchita fails to show a likelihood of success on the merits. No matter how tame a coyote may seem, it is still a wild animal that could pose danger to other animals (such as pets) and people if it were to escape from its enclosure in a densely populated area. Illinois has a legitimate interest in trying to prevent such situations from occurring, and it may do so through regulating who can possess coyotes and where.

American Atheists Release Report On 2020 Legal Developments

Yesterday, American Atheists released a report titled 2020 State of the Secular States (full text). Assessing last year's developments, the 88-page report says in part:

Although state legislation did not significantly impact religious equality in 2020, that same cannot be said for the courts. We saw fundamental changes to the law of church-state separation in the courts this year, most of it extremely negative from a separationist perspective. The U.S. Supreme Court all but struck down the numerous state constitutional protections that limit the flow of public money to religious private schools, while at the same time greatly expanding the ability of religious organizations to evade nondiscrimination protections. And the lower courts granted exemption after exemption to religious organizations, allowing them to meet even in defiance of emergency restrictions by state governors, even at risk to public health.

The report describes its approach to analyzing last year's developments:

This report identifies four categories of public policy in each state that affect religious equality: Constitutional & Nondiscrimination Protections, Education & Youth, Health Care & Wellness, and Special Privileges for Religion. We assess nearly 50 related law and policy measures in each state as well as Puerto Rico and the District of Columbia. The states have been grouped into three broad categories, but they have not been individually ranked.

Religious Affiliation of New Congress Survyed

Pew Research Center yesterday published its survey of the religious affiliation of members of the new 117th Congress. Of the 98 Senate seats and the 433 House seats that were filled as of yesterday, 294 members are Protestant, 158 are Catholic, and 33 are Jewish. Smaller numbers are Mormon (9), Orthodox Christian (7), Muslim (3), Unitarian Universalist (3), Buddhist (2), Hindu (2), Unaffiliated (1).

DC Church Sues Proud Boys For Over Racist Vandalism

An historic Black church in Washington, DC filed suit yesterday against the Proud Boys, its chairman Enrique Tarrio, and members of the organization, seeking damages and declaratory relief for vandalizing of the church.  The complaint (full text) in Metropolitan African Methodist Episcopal Church v. Proud Boys International, L.L.C., (DC Super. Ct., filed 1/4/2021), alleges in part:

1. On December 12, 2020, hundreds of members of the Proud Boys, an all-male group with ties to white nationalism and a pronounced history of violence, traveled to Washington D.C. for the purpose of committing further acts of violence intended to intimidate and silence individuals and organizations that support racial justice.

2. Arriving in droves from around the country, they created a violent riot in Washington, D.C., committed brutal assaults against protestors and passersby, destroyed property, and silenced peaceful speech by tearing down, igniting, and otherwise destroying signs and banners supporting the Black Lives Matter movement.

3.... Metropolitan AME, like other nearby churches showing support for the Black Lives Matter movement, was terrorized through coordinated acts of violence when Proud Boys members climbed over a fence surrounding the Church, came on to the Church’s property and destroyed a large Black Lives Matter sign the Church was proudly displaying.... 

The suit alleges conversion, trespass, violations of the D.C. Bias-Related Crime Act of 1989, and the Freedom of Access to Clinic Entrances Act that prohibits damaging or destroying property of a house of worship. Lawyers Committee for Civil Rights issued a press release announcing the lawsuit. Miami Herald reports on the suit.

Meanwhile (according to AP), yesterday Tarrio returned to D.C. in advance of the protests planned for Wednesday when Congress certifies Electoral College results. He was promptly taken into custody under an arrest warrant issued in connection with the December 12 incident. He also will likely face weapons charges since officers found two high-capacity firearm magazines in his custody when he was arrested.

[Thanks to Michael Lieberman for the lead.]

Stalking Suit Against Church of Scientology and Actor Must Go To Arbitration

Variety  and Vanity Fair report on an Order issued on Dec. 27 by a Los Angeles Superior Court trial judge in a civil suit brought by several women against actor Danny Masterson and the Church of Scientology. The court held that the suit must be arbitrated through the Church of Scientology because of an existing arbitration between the parties. As summarized by Vanity Fair:

The suit was initially filed in August 2019 by Chrissie Carnell Bixler; her husband, Cedric Bixler-Zavala; Marie Bobette Riales; and two Jane Does. It claims that agents working for the church stalked and intimidated them after they reported assault allegations against Masterson [a member of the Church of Scientology] to the police....

Carnell Bixler claims in the lawsuit that Masterson sexually assaulted her multiple times while they were dating in 2001 and 2002. After she reported the assault to the police, her husband alleges in the suit, “agents of the defendants” poisoned their dogs, assaulted them with cars, and made harassing phone calls.... The judge’s ruling will not apply to plaintiff Bobette Riales as she was not a member of the Church of Scientology.

9th Circuit Hears Oral Arguments in Harvest Rock Church Appeal

Yesterday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of arguments) in Harvest Rock Church v. Newsom. In the case, a California federal district court, on remand from the U.S. Supreme Court, upheld California's COVID restrictions on houses of worship. (See prior posting.) Plaintiffs then asked the 9th Circuit for an emergency injunction pending appeal. (Links to briefs and supplemental briefs filed in the 9th Circuit.) That motion was the subject of yesterday's arguments.

Recent Articles of Interest

 From SSRN:

• Sherif Girgis, Fragility, Not Superiority: "Substantial Burdens" on Religion and the Fairness of Special Protections, (September 1, 2020).
• Mark Bell, Fratelli Tutti: Pope Francis' Encyclical and Implications for Labour Law, (UK Labour Law Blog, 10/22/2020).
• Mark Bell, Bridging a Divide: A Faith-Based Perspective on Anti-Discrimination Law, ((2020) 9 Oxford Journal of Law and Religion 56-78).
• Cass R. Sunstein, Our Anti-Korematsu, (December 29, 2020).

6th Circuit: County COVID Order Closing All High Schools Infringes Parochial Schools' Rights

In Monclova Christian Academy v. Toledo-Lucas County Health Department, (6th Cir., Dec. 31, 2020), the U.S. 6th Circuit Court of Appeals granted an injunction pending appeal against enforcement of a health department order prohibiting in-person attendance for Grades 7-12 at the nine Christian and Catholic schools bringing suit. The health department order imposed the same restrictions on public and secular private schools in the Ohio county. The court held that in deciding whether religious schools are treated less favorably than comparable secular activities, it is not enough that secular schools are treated in the same manner:

In Lucas County, the plaintiffs’ schools are closed, while gyms, tanning salons, office buildings, and the Hollywood Casino remain open. Cuomo makes clear that those secular facilities are “comparable” for purposes of spreading COVID-19. 141 S. Ct. at 66; see also, e.g., Roberts, 958 F.3d at 414. The Resolution’s restrictions therefore impose greater burdens on the plaintiffs’ conduct than on secular conduct.

The court also rejected the state's argument that the schools' exercise of religion was not burdened because the order allowed the schools to open for religious education classes and religious ceremonies. The court said in part:

... [N]o one argues that the Department has targeted the plaintiffs’ schools or acted with animus toward religion here. But the plaintiffs argue that the exercise of their faith is not so neatly compartmentalized. To the contrary, they say, their faith pervades each day of in-person schooling.... We have no basis to second-guess these representations.... The Department’s closure of the plaintiffs’ schools therefore burdens their religious practice.

Josh Blackman at Volokh Conspiracy reports on the decision.

Christian After-School Program Employee Not Covered By Unemployment Insurance

In By the Hand Club for Kids, NFP, Inc. v. Department of Employment Security, (IL App., Dec. 30, 2020), an Illinois state appellate court held that an organization that operates a Christ-centered after-school program to aid students is exempt from the Illinois Unemployment Insurance Act. The organization assists students with homework, provides tutoring and literacy program, health services and a meal program. It also provides chapel services and Bible reading. The court concluded that the organization is "operated primarily for religious purposes." Thus the court denied  an unemployment compensation claim by the group's former human resources director.  ADF issued a press release announcing the decision.

Happy New Year 2021!

Dear Religion Clause Readers:

Happy New Year 2021! I hope you find Religion Clause a valuable resource in following the intersection of religion with law and politics. At a time in which factual accuracy is increasingly the victim of ideology, I hope that Religion Clause has built a reputation for reliability.  I strive for objectivity in my posts, and provide extensive links to the primary sources underlying each post for those who wish to fact check or explore more deeply the developments I highlight.

I am pleased that my regular readers span the political and religious spectrum and include 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.

We have all endured one of the most trying years in our lives because of the unprecedented Coronavirus pandemic.  Perhaps surprisingly, the earliest pandemic-related litigation has been dominated by religious liberty disputes.  Governors and courts have been placed in the uncomfortable position of having to decide, for example, whether congregate prayer is as essential as in-person grocery shopping. The coming months may see another round of religious liberty litigation surrounding the roll-out of COVID vaccines if, as seems likely, employers, airlines, schools and others begin to mandate vaccinations.

2021 brings a reconstituted Supreme Court and a new Administration which face ongoing as well as newly-developing religious liberty controversies.  In the past year, many of the most highly charged issues that divide our country politically have continued to divide it along religious lines.  This reality creates difficult challenges for the Supreme Court as well as for the other branches of government.

All of this illustrates the saliency of religion in life, law and politics in the U.S. and around the world. Religion Clause will continue to cover all the legal developments in these areas.  

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. All of you have made Religion Clause the most recognized and reliable source for keeping informed on the intersection of religion with law and politics. I encourage you to recommend Religion Clause to colleagues, students and friends who might find it of interest.

I also remind you that the Religion Clause sidebar contains links to a wealth of resources.  Please e-mail me if you discover broken links or if there are other links that I should consider adding.

Best wishes as you face the challenges that 2021 brings to us!  Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions.

May you have a healthy 2021,

Howard Friedman

Argentina Legislature Votes To Legalize Early Term Abortion

As reported by NPR, Argentina's Senate yesterday voted 38-29 (with one abstention) to approve the Voluntary Interruption of Pregnancy Bill which allows abortions during the first 14 weeks of pregnancy. The Chamber of Deputies, the lower house of  Argentina's Congress, approved the bill on Dec. 11 by a vote of 131-117 (with 6 abstentions). Argentine President Alberto Fernández says he will sign the bill. Last month, Pope Francis wrote opponents of the bill expressing his opposition to the legislation. (ABC News).

President Trump Issues Proclamation Recognizing Anniversary of Martyrdom of St. Thomas Becket

Earlier this week, President Trump issued a lengthy Proclamation (full text) recognizing Dec. 29th as the 850th Anniversary of the Martyrdom of Saint Thomas Becket. The Proclamation reads in part:

Before the Magna Carta was drafted, before the right to free exercise of religion was enshrined as America’s first freedom in our glorious Constitution, Thomas gave his life so that, as he said, “the Church will attain liberty and peace.”...

When the Archbishop refused to allow the King to interfere in the affairs of the Church, Thomas Becket stood at the intersection of church and state. That stand, after centuries of state-sponsored religious oppression and religious wars throughout Europe, eventually led to the establishment of religious liberty in the New World....

As Americans, we were first united by our belief that “rebellion to tyrants is obedience to God” and that defending liberty is more important than life itself. If we are to continue to be the land of the free, no government official, no governor, no bureaucrat, no judge, and no legislator must be allowed to decree what is orthodox in matters of religion or to require religious believers to violate their consciences....

To honor Thomas Becket’s memory, the crimes against people of faith must stop, prisoners of conscience must be released, laws restricting freedom of religion and belief must be repealed, and the vulnerable, the defenseless, and the oppressed must be protected.

Trump Executive Order Provides School Choice Funding For Disadvantaged Students Lacking In-Person Schools

President Trump yesterday issued an Executive Order allowing states to use funds from Community Services Block Grants to provide scholarships to private or parochial schools, or for home schooling or or other educational services, for disadvantaged students whose public schools do not offer in-person classes during the COVID pandemic. As reported by Politico:

The move comes after the $900 billion coronavirus relief deal ... that Trump signed on Sunday excluded many of the school choice provisions that his administration and GOP lawmakers had sought to include in that sweeping legislation.

The Dec. 28 Executive Order on Expanding Educational Opportunity Through School Choice (full text) provides in part:

The Secretary of Health and Human Services shall take steps, consistent with law, to allow funds available through the Community Services Block Grant program to be used by grantees and eligible entities to provide emergency learning scholarships to disadvantaged families for use by any child without access to in-person learning.  These scholarships may be used for:

(i)    tuition and fees for a private or parochial school;

(ii)   homeschool, microschool, or learning-pod costs;

(iii)  special education and related services, including therapies; or

(iv)   tutoring or remedial education.

Michigan Supreme Court Affirms Narrow Reading of "No-Aid" Clause

In Council of Organizations and Others for Education About Parochiaid v. State of Michigan, (MI Sup. Ct., Dec. 28, 2020), the Michigan Supreme Court by an evenly divided 3-3 decision affirmed a state Court of Appeals decision holding that there are no state or federal constitutional bars to state reimbursement of private and parochial schools for the costs they incur in complying with state health, safety, and welfare mandates such as state asbestos regulations and vehicle inspections. At issue was whether the no-aid provision of Art. 8 Sec. 2 of the Michigan Constitution only bars aid for educational services, or whether it also covers other reimbursements to non-public schools. Detroit News reports on the decision.

2nd Circuit Invalidates New York's Fixed Capacity Limits For Houses of Worship

Last month, the U.S. Supreme Court in a widely noted decision enjoined while appeals are pending New York's 10 and 25 person occupancy limits on houses of worship in red and orange zones of high COVID infections. (See prior posting.) Now the U.S. 2nd Circuit Court of Appeals has come down with a decision in that pending appeal.  In Agudath Israel of America v. Cuomo, (2nd Cir., Dec. 28, 2020), (in a decision that also covers the suit brought by the Catholic Diocese of Brooklyn), the court held that these limits imposed on houses of worship are subject to strict scrutiny, and that they are not narrowly tailored to stem the spread of COVID-19. It remanded the cases to the district court, instructing it to issue a preliminary injunction. It also ordered the district court to determine in the first instance whether alternative limits in the governor's Order of 25% and 33% of capacity can satisfy strict scrutiny. In reaching its conclusion, the court said in part:

[T]he [Governor's] Order does not impose generally applicable public-health guidelines, like requiring masks and distancing or limiting capacity by time. Instead, the Governor has selected some businesses (such as news media, financial services, certain retail stores, and construction) for favorable treatment, calling them “essential,” while imposing greater restrictions on “non-essential” activities and religious worship. That lack of general applicability is also subject to strict scrutiny.

Further, although the Governor asserts that “all” activities not restricted by the Order present lesser risks of COVID-19 transmission than religious worship, he has never claimed that the unrestricted category of “essential” activities was created based on transmission risk. Instead, “[t]he only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in secular spaces.”

Reuters reports on the decision.

Indiana Fetal Tissue Disposition Law Challenged Again

Suit was filed last week in an Indiana federal district court challenging the constitutionality of Indiana's statutes that require healthcare facilities to dispose of embryonic and fetal tissue from abortions and miscarriages by burial or cremation, regardless of patients’ wishes. The complaint (full text) in Jane Doe No. 1. v. Attorney General of Indiana, (SD IN, filed 12/21/2020), alleges in part:

The Tissue Disposition Laws violate fundamental tenets of the First and Fourteenth Amendments by compelling abortion and miscarriage patients—and their healthcare providers— to act in accordance with the State’s view of personhood—namely, that an embryo is the ontological and spiritual equivalent of a person—regardless of their own opinions about the status of developing human life. Indiana’s effort to create orthodoxy on a deeply polarizing issue that implicates the most profound aspects of religion, culture, and ideology is constitutionally prohibited.

The U.S. Supreme Court in 2019 (without hearing oral argument) upheld the Indiana tissue disposition laws in a case which did not raise the constitutional challenges put forward in this complaint. (See prior posting.) Christian Headlines reports on last week's filing.

Court Refuses To Enjoin Mask Requirement For Religious School Students

In Resurrection School v. Gordon, 2020 U.S. Dist. LEXIS 242315 (WD MI, Dec. 16, 2020), a Michigan federal district court refused to issue a preliminary injunction sought by parents of Catholic school children to eliminate the COVID face covering requirement for children attending K through Grade 5 at religious schools. Parents contend that the requirement interferes with the free exercise of the students' religion. Rejecting that claim, the court said in part:

The order is clear: individuals over the age of five must wear a mask when they are out in public. Therefore, given the near-universal mask requirement, the Court finds nothing in the contours of the order at issue that correlate to religion, and finds that the order "cannot be plausibly read to contain even a hint of hostility towards religion." ... The Court finds that the challenged face-mask requirement is neutral and generally applicable. Any burden on Plaintiffs' religious practices is incidental, and therefore, the orders are not subject to strict scrutiny.... Plaintiffs have failed to establish a liklihood of success on the merits of their First Amendment claim.

Recent Articles of Interest

 From SSRN:

• Alberto Alemanno & Nicolas Michel de Sadeleer, Humanising Animal Slaughter Need Not Infringe Religious Freedom (Amicus Curiae Brief in C-336/19 Centraal Israëlitisch Consistorie Van België and Others),(October 21, 2020).
• Daniel Figueroa, Diminishing Religious Liberties: COVID Under the First Amendment, (December 22, 2020).
• Alexandre Godoy Dotta, Vulnerability of Public Policies to the LGBT+ Community and Judializaction of Fundamental Rights Guaranteed by the Constitution of the Federative Republic of Brazil 1988, (November 25, 2020).
• Laura D. Hermer, COVID-19, Abortion, and Public Health in the Culture Wars, (Mitchell Hamline Law Review, Vol. 47 (2020)).
• Leonore Carpenter, Bostock v. Clayton County, Georgia, and its Effect on Pennsylvania's LGBTQ Community, (91 Pa. B.A. Q. 103 (2020)).
• Michael Kopel & Marco A. Marini, Mandatory Disclosure of Managerial Contracts in Nonprofit Organizations, (FEEM Working Paper No. 26 (2020)).

From SmartCILP:

• Robert F. Cochran, Jr., Lawyers, Religious Faith, and Virtues: Reflections on Tom and Nancy Shaffer, (10 St. Mary's Journal on Legal Malpractice & Ethics xviii-xxvii (2019)).
• Russell G. Pearce, A Jewish Perspective on Tom Shaffer: Zecher Tzadik Livracha (May the Memory of the Righteous Be a Blessing), 10 St. Mary's Journal on Legal Malpractice & Ethics liv-lxii (2019).
• Rene Reyes, Masterpiece Cakeshop and Ashers Baking Company: A Comparative Analysis of Constitutional Confections, 16 Stanford Journal of Civil Rights & Civil Liberties 113-146 (2020).
• Frank S. Ravitch, Complicity and Discrimination, [Abstract], 69 Syracuse Law Review 491-542 (2019).
• Emilie Kao & Monica G. Burke, Masterpiece Cakeshop and Authentic Pluralism in a Post-Obergefell World, 24 Texas Review of Law & Policy 97-134 (2019).

Top 10 Religious Liberty and Church State Developments of 2020

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year-- including developments internationally in the mix.  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, and I welcome e-mail comment from those who disagree with my choices.  So here are my Top Ten picks-- as one of the most unusual years we have all experienced comes to an end:

(1) Challenges by houses of worship and religious schools to the  limits imposed on them by COVID-19 health orders dominated much of the year. Numerous state and federal courts, including the Supreme Court were called upon to balance free exercise rights against the life and health of community members.

(2) The death of Justice Ruth Bader Ginsburg and confirmation of Justice Amy Coney Barrett to take her seat on the Supreme Court promised to continue the Court's movement toward expanded free exercise rights.

(3) The U.S. Supreme Court's decision in Bostock v. Clayton County, Georgia held that the provision of Title VII of the 1964 Civil Rights Act which prohibits discrimination in employment "because of sex" protects gay, lesbian and transgender individuals.

(4) The Supreme Court in Espinoza v. Montana Department of Revenue, held that Montana's exclusion of religious schools from its scholarship tax credit program violates the Free Exercise clause of the U.S. Constitution.

(5)  In June Medical Services L.L.C. v. Russo, the U.S. Supreme Court struck down Louisiana's law that requires doctors at abortion clinics to hold active admitting privileges at a hospital within 30 miles of the clinic.

(6) The Court of Justice of the European Court upheld a law enacted in Belgium's Flemish region that effectively bans Halal and Kosher Slaughter.

(7) The U.S. Supreme Court in Tanzin v. Tanvir held that the Religious Freedom Restoration Act permits suits for damages against federal officials in their individual capacities.

(8) The Department of Health and Human Services adopted a final rule that rolled back health care anti-discrimination coverage in federally supported services. The prior rules protected transgender individuals and those who had accessed abortion services.

(9) In Our Lady of Guadalupe School v. Morrissey-Berru, the U.S. Supreme Court held that two elementary school teachers in separate Catholic schools are covered by the "ministerial exception" so that they cannot sue for employment discrimination.

(10) The U.S. Supreme Court in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania rejected challenges to the Trump Administration's expanded conscience exemptions from the Affordable Care Act's contraceptive coverage mandate.

President and First Lady Issue Christmas Greetings Via Video

President Trump and First Lady Melania Trump issued Christmas greetings in a video posted to the President's Twitter account yesterday.

Universal Life Church Can Move Ahead In Challenge To Tennessee Ban On Marriages By Those Ordained Online

 In Universal Life Church Monastery Storehouse v. Nabors, (MD TN, Dec. 22. 2020), a Tennessee federal district court held that the Universal Life Church and two of its ministers have standing to challenge Tennessee's ban on solemnization of marriages by clergy who received online ordination. It also held that the state Attorney General, District Attorney Generals and County Clerks (but not the Governor) are proper defendants.