Religion Clause

Wednesday, February 10, 2021

11th Circuit: Anti-Abortion Protesters Challenge To Permit Requirements Rejected

In Henderson v. McMurray, (11th Cir., Feb. 9, 2021), the U.S. 11th Circuit Court of Appeals dismissed free speech, free exercise and due process challenges to Huntsville, Alabama's application of its permit requirements to activities of James and Carol Henderson, two anti-abortion protesters. When abortion rights counter-protesters drowned out the sidewalk counseling and prayers of the Hendersons, the Hendersons resorted to using amplification devices. This triggered the need for them to obtain a permit under Huntsville's municipal code. In dismissing the Hendersons' various challenges, the court concluded that they failed to plead facts showing that they did not have ample alternative channels of communication or that the limits on noise in their permit were a pretext for viewpoint discrimination. The court also held that the noise limits in the permit were not unconstitutionally vague and that the free exercise claim does not trigger strict scrutiny.

Tuesday, February 09, 2021

Court Orders Religious Dietary Accommodation For Capitol Riot Shaman

On Jan. 9, the U.S. Department of Justice announced that Jacob Anthony Chansley was one of three men charged in connection with the the invasion of the Capitol building on Jan. 6. According to the DOJ release:

... Chansley was identified as the man seen in media coverage who entered the Capitol building dressed in horns, a bearskin headdress, red, white and blue face paint, shirtless, and tan pants. This individual carried a spear, approximately 6 feet in length, with an American flag tied just below the blade.

By late January, Chansley was held in custody in the D.C. jail where he filed a request for a religious dietary accommodation. He sought a diet of only organic food because he is a Shamanic practitioner. When the request was denied, Chansley filed an emergency motion in the D.C. federal district court. In United States v. Chansley, 2021 U.S. Dist. LEXIS 22788 (D DC, Feb. 3, 2021), the court handed down a lengthy opinion ordering the dietary accommodation, saying in part that:

... RLUIPA and the First Amendment provide prisoners with powerful mechanisms to challenge aspects of their confinement that substantially burden religious free exercise....

Ordinarily ... Free Exercise challenges to neutral and generally applicable laws post-Smith merit only rational basis review, under which the DOC's dietary rules would be presumptively valid. But the Court finds that Smith does not govern the present inquiry for two independent reasons. First, unlike the neutral and generally applicable drug law at issue in Smith itself, the DOC's decision to deny defendant a dietary religious exemption is more akin to an "individualized governmental assessment" of his religious conduct....

Second, Smith is inapposite because the DOC's policy is neither neutral nor generally applicable.... [T]he DOC provides dietary religious exemptions for both Muslim and Jewish inmates. Its sole rationale for withholding an analogous accommodation for defendant is that his religious views lack "religious merit." But that derisive language simply underscores the fact that not only is the DOC withholding a religious exemption for defendant that it already grants to other religious prisoners, but that it is doing so simply because defendant belongs to a disfavored sect....

Third, defendant has shown that the DOC's refusal to provide him with an all-organic diet is a substantial burden—both subjectively and objectively—to his religious beliefs....

Apparently the D.C. jail was unable to comply with the court's order, and Chansley was transferred to another federal facility that could comply. (See Court's Memorandum of Feb. 4, 2021). ABC11 reports on developments.

Monday, February 08, 2021

Factional Dispute In Church Dismissed

In New Covenant Church, Inc. v. Futch, (SD GA, February 5, 2021), a Georgia federal district court dismissed on qualified immunity, as well as other, grounds a dispute described by the court as follows:

This case arises from two feuding family factions which both lay claim to a small church in Brunswick, Georgia, one faction’s exclusion of the other from the church for a period of time, and several Brunswick police officers’ role in that exclusion....

Plaintiffs allege that Defendants [police officers] ... violated Plaintiffs’ First Amendment rights to free exercise of religion ... by: allowing nonmembers of New Covenant to seize and lock it down for ten weeks; threatening to arrest New Covenant members who entered the property; preventing New Covenant members from worshipping; and permitting the Armstrong sisters and others to steal New Covenant’s property. ...

The court found that the officers did not violate a clearly established constitutional right, saying in part:

Defendants ... did not “regulate religious beliefs,” but instead “impose[d] restrictions affecting religious conduct” by allowing the church to be locked up.... The second threshold test is also satisfied; the facts show that Defendants’ actions were not “aimed at impeding religion,” but were instead aimed at maintaining the peace while the parties settled a bitterly contested property dispute.

The court also dismissed due process, 4th Amendment and false imprisonment claims.

Ministerial Exception Applies To Whistleblower Act Claim

In Rehfield v. Diocese of Joliet, (IL Sup. Ct., Feb. 4, 2021), the Illinois Supreme Court held that the ministerial exception doctrine applies to require dismissal of a suit alleging retaliatory discharge in violation of the state's Whistleblower Act. In the suit, the principal of a Catholic elementary school alleged that her employment was terminated because she reported a parent's threatening conduct to police. After discussing prior Supreme Court and Circuit Court precedent, the court said:

In light of the consistent body of authority discussed above, we decline to hold that plaintiff’s whistleblower claim is exempt from application of the ministerial exception. We note, however, that our holding is confined to the claim at issue in this case. We express no opinion on whether the exception bars a suit filed in any case other than the one before us.

The court also concluded that the principal was a "minister" for purposes of the ministerial exception, saying in part:

although her formal title (“lay principal”) does not necessarily indicate a religious role, it is apparent from the record that plaintiff’s job duties entailed numerous religious functions in furtherance of the school’s Catholic mission.

Sunday, February 07, 2021

Cert. Petition Filed In Maine's Tuition Reimbursement Controversy

A petition for certiorari (full text) was filed with the U.S. Supreme Court last Thursday in Carson v. Makin. In the case, 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. Religious high schools do not qualify. (See prior posting.) Institute of Justice issued a press release announcing the filing of the lawsuit. [Thanks to Michael Bindas and Chris Freund for the lead.]

New Hampshire Priest Sues Conservative Catholic Website For Defamation

A suit alleging defamation and intentional infliction of emotional distress was filed last Friday in a New Hampshire federal district court by a New Hampshire Catholic priest against the controversial Church Militant website and persons affiliated with it. The complaint (full text) in de Laire v. Voris, (D NH, filed 2/5/2021), contends that false attacks on the character of Father Georges de Laire were published on the traditionalist website and on YouTube by Gary Michael Voris, his Church Militant media company and another reporter for the company. The false attacks began after Father de Laire issued a decree banning the New Hampshire-based St. Benedict Center from holding itself out as being affiliated with the Catholic Church or purporting to hold Roman Catholic religious services on its property. According to the complaint, St. Benedict Center champions the views put forward in the 1940's by Father Leonard Feeney who "became known for incendiary and hate-filled speeches, primarily anti-Semitic in nature." Feeney was ultimately expelled from the Jesuit Order and excommunicated from the Catholic Church over these views and another doctrinal disagreement. [Thanks to Eugene Volokh via Religionlaw for the lead.]

Saturday, February 06, 2021

Supreme Court Enjoins, Pending Appeal, California's Total Ban On Indoor Worship Services

Yesterday, in another decision on the Court's so-called "shadow docket", the U.S. Supreme Court in South Bay United Pentecostal Church v. Newsom, (US Sup. Ct., Feb. 5, 2021), enjoined while a petition for certiorari is pending a portion of California's restrictions on indoor worship services. Last month, the 9th Circuit upheld the restrictions. Now the Supreme Court temporarily enjoined enforcement of the state's total ban on indoor worship services in areas of the highest COVID-19 infection ("Tier I"). However it refused to enjoin the state's 25% capacity limits on worship services in Tier I, and refused to enjoin its ban on singing and chanting during services. The Court, in its unsigned order, added:

This order is without prejudice to the applicants presenting new evidence to the District Court that the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner.

Chief Justice Roberts filed a brief concurring statement, saying in part:

[F]ederal courts owe significant deference to politically accountable officials with the “background, competence, and expertise to assess public health.”... At the same time, the State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.

Justice Barrett, joined by Justice Kavanaugh, filed a brief concurring opinion.

Justices Thomas, Gorsuch and Alito would also have enjoined the capacity limits and the ban on singing and chanting. However Justice Alito would have postponed the injunction on capacity limits for 30 days to give the state an opportunity to show that these limits are narrowly drawn to reduce COVID spread to the same extent as limits on other essential activities. Justice Gorsuch, joined by Justices Thomas and Alito, filed an opinion explaining their position, saying in part:

Since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses....

Of course we are not scientists, but neither may we abandon the field when government officials with experts in tow seek to infringe a constitutionally protected liberty. The whole point of strict scrutiny is to test the government’s assertions, and our precedents make plain that it has always been a demanding and rarely satisfied standard....

Drafting narrowly tailored regulations can be difficult. But if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry.

Justice Kagan, joined by Justices Breyer and Sotomayor, dissented, saying in part:

California’s response to the COVID pandemic satisfies that neutrality rule by regulating worship services the same as other activities “where large groups of people [come together] in close proximity for extended periods of time.”... The restricted activities include attending a worship service or political meeting; going to a lecture, movie, play, or concert; and frequenting a restaurant, winery, or bar. So the activities are both religious and secular—and many of the secular gatherings, too, are constitutionally protected....

The Court has decided that the State must exempt worship services from the strictest aspect of its regulation of public gatherings. No one can know, from the Court’s 19-line order, exactly why: Is it that the Court does not believe the science, or does it think even the best science must give way? In any event, the result is clear: The State may not treat worship services like activities found to pose a comparable COVID risk, such as political meetings or lectures. Instead, the State must treat this one communal gathering like activities thought to pose a much lesser COVID risk, such as running in and out of a hardware store. In thus ordering the State to change its public health policy, the Court forgets what a neutrality rule demands. The Court insists on treating unlike cases, not like ones, equivalently.

Vox reports on the decision, with particular attention to Justice Barrett's opinion-- her first signed opinion since joining the Court.

Friday, February 05, 2021

Biden Speaks At National Prayer Breakfast

President Biden yesterday delivered taped remarks at this year's National Prayer Breakfast. (Video of full remarks.) AP reported on the event, saying in part:

The event went entirely virtual this year because of the coronavirus pandemic, with Biden and all other speakers appearing via taped remarks. Four living former presidents sent messages to the breakfast, with three speaking on tape while Coons read a message from former President Jimmy Carter — making Trump’s absence conspicuous.

AP Report Critical of Catholic Church's Participation In Paycheck Protection Program

AP yesterday published an investigative report critical of the Catholic Church's participation in the COVID-19 Paycheck Protection Program. The report says in part:

As the pandemic began to unfold, scores of Catholic dioceses across the U.S. received aid through the Paycheck Protection Program while sitting on well over $10 billion in cash, short-term investments or other available funds....

Overall, the nation’s nearly 200 dioceses, where bishops and cardinals govern, and other Catholic institutions received at least $3 billion. That makes the Roman Catholic Church perhaps the biggest beneficiary of the paycheck program....

Church officials have said their employees were as worthy of help as workers at Main Street businesses, and that without it they would have had to slash jobs and curtail their charitable mission as demand for food pantries and social services spiked. They point out the program’s rules didn’t require them to exhaust their stores of cash and other funds before applying....

By using a special exemption that the church lobbied to include in the paycheck program, Catholic entities amassed at least $3 billion — roughly the same as the combined total of recipients from the other faiths that rounded out the top five.... Baptist, Lutheran, Methodist and Jewish faith-based recipients also totaled at least $3 billion. Catholics account for about a fifth of the U.S. religious population while members of Protestant and Jewish denominations are nearly half....

Imam Sues Alabama Over Exclusion of Clergy From Execution Chamber

Yesterday a Muslim imam filed suit in an Alabama federal district court challenging prison rules that preclude him from being present in the execution chamber with inmates sentenced to death. The complaint (full text) in Maisonet v. Dunn, (SD AL, filed 2/4/2021), alleges that a change in execution policy in 2019 that now excludes all religious advisors from the execution chamber was adopted

for the purpose of excluding non-Christian religious advisors and prohibiting condemned men of non-Christian faiths from requesting their religious advisors to accompany them in the execution chamber.

The suit contends that the execution policy violates the Free Exercise and Establishment Clauses as well as the Alabama Constitution's Religious Freedom Amendment.

Prior to 2019, prison rules required that the prison chaplain-- consistently a mainline Protestant clergyman-- be present in the execution chamber. That practice was challenged and litigated up to the U.S. Supreme Court, which in 2019 allowed the Alabama execution of a Muslim inmate to proceed without reaching the merits of the challenge to that practice. (See prior posting.) Subsequently in 2019 the Supreme Court ruled against disparate treatment of non-Christian inmates facing execution in a Texas case. (See prior posting.) Courthouse News Service reports on the lawsuit.

Thursday, February 04, 2021

2020 Report on Hate Groups Released

Earlier this week, the Southern Poverty Law Center released its report The Year In Hate and Extremism 2020. The Report identifies 838 active hate groups, an 11% drop from last year. As reported by CNA, some conservative Christian groups have criticized SPLC for labelling anti-abortion and anti-gay marriage organizations as anti-LGBTQ hate groups. [Thanks to Michael Lieberman for the lead.]

Supreme Court: FSIA Shields Germany From Suit Over Nazi Takings of German-Jewish Property

Yesterday in Federal Republic of Germany v. Philipp, (Sup. Ct., Feb. 3, 2021), the U.S Supreme Court held that the Foreign Sovereign Immunities Act (FSIA) precludes plaintiffs from filing suit in U.S. courts to recover for Jewish property taken by the Nazi government from German nationals. Plaintiffs sued over the Nazi government's coercing a consortium of German Jewish art dealers to sell an art collection to Prussia at a one-third of its value. The FSIA provides that foreign countries, with certain exceptions, are immune from suit in U.S. courts. Plaintiffs contended that the exception for cases "in which rights in property taken in violation of international law are in issue" should apply because the coerced sale of their property was an act of genocide.

A unanimous Supreme Court rejected plaintiffs' argument on two grounds. First it held that the exception for property taken in violation of international law does not include expropriation of property from a country's own nationals. Second it held that the exception for property taken in violation of international law does not apply to property taken in violation of international human rights law, saying in part:

We need not decide whether the sale of the consortium’s property was an act of genocide, because the expropriation exception is best read as referencing the international law of expropriation rather than of human rights. We do not look to the law of genocide to determine if we have jurisdiction over the heirs’ common law property claims. We look to the law of property.

The Court yesterday also remanded Republic of Hungary v. Simon, (Sup. Ct., Feb. 3, 2021), for further consideration in light of tis decision in Germany v. Philipp. That case is a class action claim for property taken by the Hungarian government from Hungarian Jews during the Holocaust.

SCOTUSblog discusses the decisions.

Wednesday, February 03, 2021

7th Circuit OK's Nativity Scene In Christmas Display

In Woodring v. Jackson County, Indiana, (7th Cir., Feb. 2, 2021), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, upheld the constitutionality of a nativity scene as part of a display on the county's historic courthouse lawn. The court said in part:

[W]e hold that the County’s nativity scene complies with the Establishment Clause. The district court thought itself bound by the “purpose” and “endorsement” tests that grew out of the Supreme Court’s decision in Lemon v. Kurtzman, 403 U.S. 602 (1971). We hold, however, that the Supreme Court’s recent decision in American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019), requires us to use a different, more historical framework to gauge the constitutionality of the County’s nativity scene. Applying American Legion, we conclude that the County’s nativity scene is constitutional because it fits within a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas—a public holiday....

Judge Hamilton dissented, saying in part:

[T]he majority’s feints toward displacing the endorsement and purpose tests. I say “feints” because the majority ends up applying the American Legion “historical” test in a way that actually looks a lot like the endorsement test, properly understood, taking full account of the content, history, and larger context of the display. Neither this case nor American Legion should be understood as a revolution in Establishment Clause doctrine....

I disagree with the majority’s result because of the specific facts: the religious content dominates the county’s Christmas display here....

The facts and cases may be arrayed roughly along a spectrum ranging from stand-alone Nativity scenes to those that are small parts of much broader seasonal displays. There is not a sharp line. It’s not as simple as counting whether there are more shepherds and angels than elves and snowmen.... If the display is dominated by religious symbolism, with only minor or token secular symbols and symbols of other faiths, the message of endorsement calls for court intervention.

The Hill reports on the decision.

Tuesday, February 02, 2021

Sanctuary Leaders Sue Over Targeting and Excessive Fines

Suit was filed last month in D.C. federal district court by advocacy groups and individuals who are leaders in the sanctuary movement claiming that ICE and the Department of Homeland Security have targeted the individual defendants with exorbitant fines because they have taken sanctuary in houses of worship. The complaint (full text) in Austin Sanctuary Network v. Gaynor, (D DC, filed 1/19/2021), alleges that these actions violate the 1st and 8th Amendments as well as RFRA. The complaint alleges in part:

The sanctuary movement reignited in the 2000s through a network of over 800 Christian, Jewish, Muslim, Hindu, Sikh, Baha’i, and Buddhist houses of worship that opened their doors to immigrants at risk of deportation, amidst a steady rise in anti-immigrant rhetoric and the criminalization, detention, and deportation of immigrants....

Individual Plaintiffs’ religious beliefs are deeply intertwined with the sanctuary movement. For them, taking sanctuary and participating in the sanctuary movement are religious acts....

Center for Constitutional Rights issued a press release announcing the filing of the lawsuit.

Virginia Governor Protected By 11th Amendment In Church's Suit Challenging COVID-19 Orders

In Lighthouse Fellowship Church v. Northam, (ED VA, Jan. 27. 2021), a Virginia federal district court dismissed a church's suit against Virginia's governor challenging COVID-19 restrictions on worship services. The court held that under the 11th Amendment, the governor is immune from suit challenging his orders. The suit contended that the orders violated federal and state constitutional and statutory provisions. Christian Post reports on the decision. The Department of Justice had filed a statement of interest supporting plaintiff in the case. (See prior posting.)

Monday, February 01, 2021

Sunday, January 31, 2021

Another Decision On California COVID Limits On Worship Services

In Gateway City Church v. Newsom, (ND CA, Jan. 29, 2021), a California federal district court, discussing recent 9th Circuit and Supreme Court precedents, upheld portions of COVID-19 state and county restrictions on worship services, while preliminarily enjoining other parts of the state's orders. The court upheld the state prohibition on indoor worship in Tier I high risk areas. It also upheld the county's general prohibition on gatherings of all sorts. The court however enjoined enforcement of state 100- and 200- person capacity limits in Tier II and III recovery-- but allowed percentage-based capacity limits. Finally it enjoined restrictions on activities other than worship services in houses of worship.

Saturday, January 30, 2021

Christian Student Group May Move Ahead With Damage Claim For School's Derecognition

In Roe v. San Jose Unified School District Board, 2021 U.S. Dist. LEXIS 16633 (ND CA, Jan. 28, 2021), a California federal district court, while dismissing a number of plaintiffs' claims, permitted the Fellowship of Christian Athletes (FCA) to move ahead on an "as applied" challenge to the school district's nondiscrimination policies. Plaintiffs allege that schools used those policies as a pretext to revoke recognition of student FCA chapters because of their religious beliefs and their speech. At issue is FCA's Sexual Purity Policy that requires FCA leaders to resign their positions if they engage in extramarital sex or homosexual acts. The court held that claims of the individual plaintiffs should be dismissed because they cannot proceed under pseudonyms. It held that individual plaintiffs' claims for prospective relief are moot because they have graduated, and that FCA failed to plead organizational standing for prospective relief. It concluded, however, that claims for damages against defendants in their personal capacities (but not their official capacities) survive a motion to dismiss.

Friday, January 29, 2021

Secular Elected Officials Form New Organization

A press release issued earlier this week announced the formation of a new organization, the Association of Secular Elected Officials. According to the release, "the non-religious are seriously underrepresented in public office." The group has been formed to

provide support, information and a sounding board for non-religious elected officials at a time when a growing number of people choose not to affiliate with a religion.

Its goals are described by the group's founder:

“For too long the non-religious have been excluded from being open about their constitutional right to be non-religious,” Presberg said. “As the need for science-based policy is paramount, we have a vocal minority pushing for special rights for their religious beliefs. Now, more than ever, we need to support and educate our non-theistic elected colleagues as they work to make our country and their community better for everyone.”

The organization also has a goal of presenting an alternative to the political power of white Christian nationalists.

The organization has a website and a Facebook page.

9th Circuit Hears Oral Arguments In Case of High School Coach Who Prayed At 50-Yard Line

Earlier this week (Jan. 25), the U.S. 9th Circuit Court of Appeals heard oral arguments in Kennedy v. Bremerton School District. (Audio, Video of full oral arguments.) In the case, a Washington federal district court dismissed 1st Amendment and Title VII claims by a high school football coach who was suspended when he insisted on prominently praying at the 50-yard line immediately after football games. The court concluded that his prayer amounted to endorsement of religion by the school district in violation of the Establishment Clause. (See prior posting.) First Liberty issued a press release on Monday's oral argument.

Biden Moves To Restore Funding For Family Planning Clinics; Reverses Mexico City Policy

President Biden yesterday issued Memorandum on Protecting Women’s Health at Home and Abroad (Jan. 28. 2021) (full text). The Memorandum calls for the Secretary of Health and Human Services to consider whether to revise or repeal the Trump Administration's rules that prohibit recipients of Title X funds from referring patients to abortion providers. The rule has had a particular impact on Planned Parenthood clinics. (See prior posting.) Yesterday's Memorandum states in part:

The Title X Rule has caused the termination of Federal family planning funding for many women’s healthcare providers and puts women’s health at risk by making it harder for women to receive complete medical information.

The Memorandum also revokes the so-called "Mexico City Policy" which withholds USAID family planning funds abroad from organizations that use non-USAID funds to perform abortions, provide advice, counseling, or information on abortion, or lobby a foreign government to legalize abortion or make abortion services more easily available. The Memorandum also directs the Secretaries of State and HHS to withdraw the U.S. from the Geneva Consensus Declaration, and to resume funding to the United Nations Population Fund. CBS News has more on these developments.

Thursday, January 28, 2021

RLUIPA Bars City's Enforcement of Parking Lot Restrictions On Church

In Pass-A-Grille Beach Community Church, Inc. v. City of St. Pete Beach, Florida, (MD FL, Jan. 26, 2021), a Florida federal district court, relying on the Religious Land Use and Institutionalized Persons Act, granted a preliminary injunction barring the city from enforcing restrictions on the way in which the church can use its own parking lot. The church, which is located across the street from the beach, allows the public to use its parking lot, free of charge, to access the beach. The city contends that its ordinances prohibit the church from allowing anyone who is not there on legitimate church business from parking in the lot. According to the court:

[The church] states that a vital aspect of its beliefs and ministry is outreach to the local community and the world, heeding a direct command from Christ himself. It desires to use “biblically-based hospitality” to help people enjoy a day at the beach with their families. The Church cites several Biblical verses in support of its beliefs on this point.

After concluding that the city has imposed a "substantial burden" on the church, the court analyzes the primary disagreement between the parties-- the sincerity of the church's religious beliefs regarding use of the parking lot. The court said in part:

When inquiring into a claimant's sincerity ... our task is ... limited to asking whether the claimant is (in essence) seeking to perpetrate a fraud on the court – whether he actually holds the beliefs he claims to hold....

The Church is certainly not attempting to perpetrate a fraud upon the Court when it states it desires to use its parking facilities to further its mission by attracting new people. Common sense shows that attracting new members is an important goal for almost all community organizations and mainstream religious groups. Likewise, giving away something for free (in this case parking) is a time-honored strategy used to generate attention create interest, and attract new customers.

At most, the City has demonstrated that the Church may have changed its mind over the years regarding the religious implications of its use of its parking lot.... Well respected religious leaders and institutions throughout the world change their minds on certain matters from time to time, and no one would suggest those changes evidence insincere religious beliefs.

Church Again Asks Supreme Court To Invalidate California COVID Restrictions

In its continuing challenge to California's COVID-19 restrictions on worship services, a California church is again seeking an emergency injunction from the Supreme Court. The application for an injunction (full text) in Harvest Rock Church, Inc. v. Newsom, (Sup. Ct., filed 1/26/2021) challenges the 9th Circuit's decision earlier this week upholding California's total ban on indoor worship services in highest risk (Tier I) areas, while striking down 100- and 200-person limits at places of indoor worship in Tier 2 and 3 areas. In December, the Supreme Court had remanded the case for further consideration. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the latest application with the Supreme Court.

Wednesday, January 27, 2021

Today Is International Holocaust Remembrance Day

In a formal resolution adopted in 2005 (full text), the United Nations General Assembly designated January 27 each year as International Holocaust Remembrance Day. That date is the anniversary of the 1945 liberation of Auschwitz-Birkenau. The United Nations has posted a calendar of events that will mark this year's commemoration. The United States Holocaust Museum will also be streaming programming to mark the day.

UPDATE: President Biden also issued a statement (full text), saying in part:

Today, we join together with people from nations around the world to commemorate International Holocaust Remembrance Day by remembering the 6 million Jews, as well as the Roma and Sinti, Slavs, disabled persons, LGBTQ+ individuals, and many others, who were murdered by the Nazis and their collaborators during the Shoah. We must never forget the truth of what happened across Europe or brush aside the horrors inflicted on our fellow humans because of the doctrines of hatred and division....

The United States will continue to champion justice for Holocaust survivors and their heirs. We are committed to helping build a world in which the lessons of the Holocaust are taught and in which all human lives are valued.

Satanic Temple Challenges Boston City Council's Prayer Policy

Earlier this week, The Satanic Temple filed suit in a Massachusetts federal district court challenging the policy of Boston City Council for selecting individuals to offer the invocations at Council meetings. The complaint (full text) in The Satanic Temple, Inc. v. City of Boston, MA, (D MA, filed 1/24/2021), alleges that any member of City Council can select a prayer giver. However, The Satanic Temple, which was not selected by a Council member, was denied permission to offer a prayer. The complaint, claiming Establishment Clause, Free Exercise, Free Speech and Equal Protection violations, contends in part:

As a result, the City broadcasts two constitutionally impermissible messages: those religions who make the cut are endorsed and are therefore insiders of the politically favored community; those who don’t make the cut are not endorsed and are therefore outsiders from the politically favored community.

AP reports on the lawsuit.

Tuesday, January 26, 2021

9th Circuit Again Upholds Some of California's Restrictions On Indoor Worship; Enjoins Others

In Harvest Rock Church v. Newsom, (9th Cir., Jan. 25, 2021), the U.S. 9th Circuit Court of Appeals, relying on the South Bay decision handed down by a different 9th Circuit panel three days earlier (see prior posting) enjoined California from enforcing its COVID-19 related 100- and 200-person limits at places of indoor worship. It however upheld the total ban on indoor worship services in higher risk areas. Judge O'Scannlain concurred specially, criticizing the South Bay decision and arguing that the total ban on indoor worship should also be enjoined. Orange County Register reports on the decision.

Supreme Court GVRs Chaplain-In-Execution-Chamber Case

Yesterday, the U.S. Supreme Court, in a dispute over execution procedures, granted review, vacated the judgment below and remanded the case in Gutierrez v. Saenz (Docket No. 19-8695, GVR 1/25/2021). (Order List.) The case challenges Texas' exclusion of chaplains from the execution chamber. In June, 2020, a day before appellant's scheduled execution, the Supreme Court granted a stay of execution pending its decision on whether to grant review. (See prior posting.) As part of that order, the Supreme Court instructed the district court to promptly determine whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution. Apparently the Texas federal district court made additional findings of fact in Nov. 2020. Yesterday, the U.S. Supreme Court granted certiorari and vacated the 5th Circuit's earlier rejection of the trial court's stay of execution. Yesterday's Supreme Court Order went on to provide:

The case is remanded to the Court of Appeals with instructions to remand the case to the District Court for further and prompt consideration of the merits of petitioner’s underlying claims regarding the presence of a spiritual advisor in the execution chamber in light of the District Court’s November 24, 2020 findings of fact. Although this Court’s stay of execution shall terminate upon the sending down of the judgment of this Court, the disposition of the petition for a writ of certiorari is without prejudice to a renewed application regarding a stay of execution should petitioner’s execution be rescheduled before resolution of his claims regarding the presence of a spiritual advisor in the execution chamber.

Austin American-Statesman reports on the decision.

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.

Monday, January 25, 2021

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."

Saturday, January 23, 2021

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.

Friday, January 22, 2021

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.

Thursday, January 21, 2021

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.

Wednesday, January 20, 2021

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.

Tuesday, January 19, 2021

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....

Monday, January 18, 2021

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.

Sunday, January 17, 2021

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.

Friday, January 15, 2021

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.]

Thursday, January 14, 2021

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.

Wednesday, January 13, 2021

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.

Tuesday, January 12, 2021

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.