Seventh Day Adventist Loses Failure To Accommodate Claim

In Staple v. School Board of Broward County, Florida, (SD FL, April 30, 2021), a Florida federal district court dismissed a Seventh Day Adventist's Title VII religious discrimination claim. Plaintiff was a shift supervisor for the county's school bus drivers.  He wanted to alter his hours in the winter months so he would not need to work after sundown on Fridays.  His supervisor instead insisted that he use his hours accrued for vacation and sick leave. The court held that this did not amount to discharge or discipline, which is a prerequisite to a failure to accommodate claim. Mere adverse employment action short of that, while it supports a disparate treatment claim, does not, according to the court, support a failure to accommodate claim. The court also dismissed his claim under the Florida Religious Freedom Restoration Act, finding that he did not allege a substantial burden on his religious exercise.

Recent Articles of Interest

From SSRN:

• Rachel Barron, 'Pre-Nup' Is Not A Dirty Word: Cohabitation Agreements, Prenuptial Agreements, Marital Property Agreements, Marital Property Agreements, and the Christian Family Law Attorney, (June 24, 2020).
• Nathan B. Oman, "Established Agreeable to the Laws of Our Country": Mormonism, Church Corporations, and the Long Legacy of America's First Disestablishment,  Journal of Law & Religion (forthcoming).
• Michael Lewis, HB 544 and the Freedom of Religion, (N.H. Bar News 2021).
• Duncan Wallace, The Social Construction Theory of the Corporation, (March 25, 2021).
• Ethan J. Leib, The Anxiety of Influence and Judicial Self-Aggrandizement in Rabbinic Jurisprudence, (36 Constitutional Commentary ___ (Forthcoming 2021).
• Kent Greenfield & Daniel Rubens, Corporate Personhood and the Putative First Amendment Right to Discriminate, (Forthcoming in the Research Handbook on Corporate Purpose and Personhood (Elizabeth Pollman & Robert B. Thompson, eds.,Edward Elgar Publishing)).
• Johnny Davis, To Reform and Help Reunite America, Conservatives Must Embrace the Natural Law of the Founders, (April 24, 2021).
• Paul Benjamin Linton, Overruling Roe v. Wade: Lessons from the Death Penalty, (48 Pepperdine Law Review 1 (2021)).
• Alfriti Alfitri, Protecting Women from Domestic Violence: Islam, Family Law, and the State in Indonesia, (Studia Islamika, Vol. 27, No. 2, 2020).

From SmartCILP:

• Jonathan Cantarero, Religion in the Writing: A Literary Analysis of Justice Kennedy on Abortion, 20 University of Maryland Law Journal of Race, Religion, Gender & Class 36-72 (2020).

Suit Challenges Connecticut Elimination of Religious Exemption To Immunization Requirement

Suit was filed last week in a Connecticut federal district court challenging Connecticut's recent elimination of religious exemptions to school immunization requirements.  The suit was brought by three parents-- Greek Orthodox, Catholic and Muslim-- and two advocacy groups. The complaint (full text) in We the Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (D CT, filed 4/30/2021), contends that the repeal violated plaintiffs' rights to free exercise of religion, privacy and medical freedom, equal protection, child rearing, as well as of the Individuals With Disabilities Education Act. Bronx News 12 reports on the lawsuit.

President Declares May As Jewish American Heritage Month

Today President Biden issued a Proclamation (full text) declaring May 2021 as Jewish American Heritage Month. The Proclamation reads in part:

Alongside this narrative of achievement and opportunity, there is also a history — far older than the Nation itself — of racism, bigotry, and other forms of injustice.  This includes the scourge of anti-Semitism.  In recent years, Jewish Americans have increasingly been the target of white nationalism and the antisemitic violence it fuels.

As our Nation strives to heal these wounds and overcome these challenges, let us acknowledge and celebrate the crucial contributions that Jewish Americans have made to our collective struggle for a more just and fair society; leading movements for social justice, working to ensure that the opportunities they have secured are extended to others, and heeding the words of the Torah, “Justice, justice shall you pursue.”

A website honoring the month has been created by The Library of Congress, National Archives and Records Administration, National Endowment for the Humanities, National Gallery of Art, National Park Service and United States Holocaust Memorial Museum.

Biden Nominates Sarah Margon To State Department Human Rights Post

Yesterday President Biden submitted to the Senate the nomination of Sarah Margon to be Assistant Secretary of State for Democracy, Human Rights, and Labor. According to Wikipedia:

Margon began her career as a humanitarian and conflict policy advisor for Oxfam. She later worked as a staffer on the United States Senate Foreign Relations Subcommittee on Africa and Global Health Policy and as a foreign policy advisor to Senator Russ Feingold. She later worked as the associate director for sustainable security and peace-building at the Center for American Progress and deputy Washington director of Human Rights Watch. Margon has most recently worked as a U.S. foreign policy advisor for the Open Society Foundations.

The State Department Bureau of Democracy, Human Rights and Labor works to advance human rights, including freedom of religion.

State Moves To Restrict Abortions Continue

A number of states continue attempts to restrict abortion rights.

In Montana, Governor Greg Gianforte last Monday signed three bills: HB 136 (full text) barring "perform[ing] an abortion of an unborn child capable of feeling pain unless it is necessary to prevent a serious health risk to the unborn child's mother; HB 140 (full text) requiring that before an abortion a pregnant woman must be given the opportunity to view an active ultrasound and hear a fetal heart tone; and HB 171 (full text) setting out procedures for prescribing abortion-inducing drugs, barring delivery of such drugs by mail and prohibiting providing such drugs in schools or on school grounds. Also yesterday the Montana legislature approved HB 167 (full text) calling for a referendum on the adoption of the Born Alive Infant Protection Act. Law & Crime reports on these developments.

In Oklahoma in recent days Governor Kevin Stitt has signed five bills on abortion: HB 1102 (full text) which defines “unprofessional conduct” to include the performance of an abortion unless performed to prevent the death or significant physical impairment of the mother; HB 1904 (full text) requiring doctors performing abortions to be board certified in obstetrics and gynecology; HB 2441 (full text) barring abortions if a fetal heartbeat can be detected, except to prevent death or serious risk of significant physical impairment of the mother; SB 584 (full text) extending ban on funding of provider who has been found by a court to have trafficked in fetal body parts to funding by cities or counties, as well as the state; SB 918 (full text) making abortion illegal if the U.S. Supreme Court overrules Roe v. Wade or a federal constitutional amendment restores state authority to outlaw abortions. AP reports on some of these developments.

Yesterday the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Memphis Center for Reproductive Health v. Slatery. In the case, a Tennessee federal district court issued a temporary restraining order barring enforcement of two bans on pre-viability abortions. One bans abortions when a fetal heartbeat is detectable. The other bans pre-viability abortions sought because of the race or sex of the fetus or a Down syndrome diagnosis. (See prior posting.) Courthouse News Service reports on the oral arguments. [Thanks to Scott Mange for the lead.]

Catholic School Campus Minister's Claims Dismissed Under Ministerial Exception Doctrine

In Simon v. Saint Dominic Academy, (D NJ, April 28, 2021), a New Jersey federal district court applied the ministerial exception doctrine as defined in recent U.S. Supreme Court precedent to dismiss statutory and contract-based claims by the former Chairperson of the Religious Department and Campus Minister at a women's Catholic high school. Plaintiff was terminated the day after she returned from a leave due to a motor vehicle accident.  She contends that she was dismissed because of her age, disability, and whistleblowing activities. The court said in part:

Plaintiff pleads that she was replaced by a younger individual who was not qualified to teach religion.... Plaintiff’s allegations ... will require the Court to second guess SDA’s decision to terminate a minister, which is precisely what the ministerial exception is intended to prohibit and will necessarily entangle the Court in internal church governance.

New West Virginia Law Bans Transgender Women From Women's Competitive Athletic Teams

The Hill reports that West Virginia Governor Jim Justice yesterday signed into law HB 3293 (full text) which bars transgender girls or women from competing on women's athletic teams at public middle or high schools or at state colleges and universities. The ban is limited to teams where selection is based on competitive skill or the activity involved is a contact sport.

Connecticut Eliminates Future Religious Exemptions From Immunization Requirements

Yesterday Connecticut Governor Ned Lamont signed HB 6423 (full text) which eliminates the previously available religious exemption from the state's immunization requirements for school children. However, the new law allows children who have previously been granted a religious exemption to maintain the exemption, with certain exceptions for grade-school children.  AP reports on the adoption of the new law. [Thanks to Scott Mange for the lead.]

3rd Circuit Dismisses Inmate's Complaint of Religious Necklace Confiscation

In Adams v. Correctional Emergency Response Team, (3rd Cir., April 26, 2021), the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of an inmate's complaint that his religious necklace was confiscated in violation of the 1st Amendment, saying in part:

The complaint stated only that the missing necklace reflected Adams’s religious faith, with no description of how losing it affected his religious practice.

The court also held that RLUIPA does not permit actions against state officials in their individual capacities.

Arizona Enacts New Abortion Restrictions

Yesterday Arizona Governor Doug Ducey signed SB 1457 (full text) placing additional limits on abortion in the state. The new law bans abortions sought because of a genetic abnormality of the fetus, except in medical emergencies. It prohibits performance of abortions in facilities run by or located on the property of public educational institutions, except when necessary to save the life of the mother. It prohibits the use of public funds for research that involves fetal cells. It prohibits mail delivery of abortion-inducing drugs. It requires that bodily remains from a surgical abortion be disposed of by cremation or burial, and gives the mother the right to determine the method to be used. ADF issued a press release announcing the bill signing.

New Jersey Sues Township Alleging Anti-Jewish Zoning Actions

New Jersey's Attorney General yesterday announced that the state has filed a lawsuit against Jackson Township (NJ) alleging that in response to residents who have complained about the number of Orthodox Jews moving in, the Township has adopted discriminatory zoning ordinances and enforcement practices. The complaint (full text) in Grewal v. Jackson Township, (NJ Super. Ct., filed 4/27/2021) alleges that New Jersey's Law Against Discrimination has been violated and reads in part:

Defendants have exercised their zoning authority to intentionally target Orthodox Jewish religious practices and rituals, such as communal prayer, the erection of sukkahs, and the establishment of yeshivas and eruvim. They have exercised their zoning authority to enact ordinances for the purpose of deterring Orthodox Jews from building and operating religious schools, as well as the dormitories associated with those schools within the Township. And they have exercised their authority by discriminatorily investigating alleged violations of Township ordinances by Orthodox Jews, while acknowledging that resident complaints have been “exaggerated” and that significant resources have been wasted on enforcement without the discovery of any significant ordinance violations.

Insider NJ reports on the lawsuit.

Students Sue Yeshiva University For Refusal To Recognize LGBTQ Organizations

Suit was filed this week in a New York state trial court against Yeshiva University by an LGBTQ student organization and four current and former students claiming that the university's continued refusal to recognize a student organization for LGBTQ students violates New York City's Human Rights Law. The complaint (full text) in YU Pride Alliance v. Yeshiva University, (NYCty. Sup. Ct., filed 4/26/2021) alleges in part:

[D]isparate treatment and the denial of these concomitant benefits to club recognition, solely based on Plaintiffs’ sex, sexual orientation, or gender identity, is not only harmful to the students, but also unlawful as it amounts to a failure to provide equal access to facilities in violation of New York City laws.

Washington Post, reporting on the lawsuit, sets out a portion of the university's response to the lawsuit:

Our LGBTQ+ students are our sons and daughters, brothers and sisters, family and friends. Our policies on harassment and discrimination against students on the basis of protected classifications including LGBTQ+ are strong and vigorously enforced. Our Torah-guided decision about this club in no way minimizes the care and sensitivity that we have for each of our students, nor the numerous steps the university has already taken.

Cert. Petition Filed In Challenge To New York's Abortion Coverage Requirement

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in Roman Catholic Diocese of Albany v. Lacewell, (cert. filed 4/22/2021). In the case, a New York state appellate court rejected a challenge by several religious organizations and other plaintiffs to a New York administrative regulation  requiring health insurance policies in New York to provide coverage for medically necessary abortion services. (See prior posting.) According to the petition for review, the New York regulation "exempts religious entities whose 'purpose' is to inculcate religious values and who 'employ' and 'serve' primarily coreligionists. But religious organizations must cover abortions if they have a broader religious mission (such as service to the poor)or if they employ or serve people regardless of their faith." New York's highest state court denied leave to appeal. Becket Fund issued a press release announcing the filing of the petition for review.

Montana Enacts A Religious Freedom Restoration Act

On April 22, Montana Governor Greg Gianforte signed SB215, the Montana Religious Freedom Restoration Act (full text). It provides in part:

State action may not substantially burden a person's right to the exercise of religion, even if the burden results from a rule of general applicability, unless it is demonstrated that applying the burden to that person's exercise of religion: (a) is essential to further a compelling governmental interest; and (b) is the least restrictive means of furthering that compelling governmental interest.

Christianity Today reports on the new law.

Supreme Court Refuses Original Suit By Texas Against California

Yesterday, the U.S. Supreme Court in Texas v. California, (Sup. Ct., April 26, 2021), (SCOTUSblog case page) denied the state of Texas leave to invoke the Supreme Court's original jurisdiction to file a bill of complaint against the state of California. USA Today described the background:

California passed a law in 2016 prohibiting taxpayer-funded travel – such as for state employees to attend conferences – to any state that doesn’t ban discrimination on the basis of sexual orientation. Texas law allows foster-care and adoption agencies to deny same-sex couples on religious grounds.

Texas took California directly to the Supreme Court last year, asserting the travel ban was "born of religious animus" and that it violates the Constitution....

The justices had been considering whether to take the suit for months. The court did not explain its decision not to hear the case.

Justice Alito, joined by Justice Thomas, dissented, saying in part:

The practice of refusing to permit the filing of a complaint in cases that fall within our original jurisdiction is questionable, and that is especially true when, as in this case, our original jurisdictional is exclusive. As the history recounted above reveals, the Court adopted this practice without ever providing a convincing justification....

Texas raises novel constitutional claims, arguing that California’s travel ban violates the Privileges and Immunities Clause, U. S. Const., Art. IV, §2, cl. 1, the Commerce Clause, Art. I, §8, cl. 3, and the Equal Protection Clause, Amdt. 14, §1. I express no view regarding any of those claims, but I respectfully dissent from the Court’s refusal even to permit the filing of Texas’s complaint.

Certiorari Denied In Suit Over California Curriculum On Hinduism

The U.S. Supreme Court today denied review in California Parents for the Equalization of Educational Materials v. Torlakson, (Docket No. 20-1137, certiorari denied 4/26/2021). (Order List). In the case, the U.S. 9th Circuit Court of Appeals upheld the dismissal of a suit claiming that California's History-Social Science Standards and Framework incorrectly describe Hinduism and treat it negatively in relation to the treatment of other religions.

Supreme Court GVR's Challenge To California Limits On Indoor Worship

In February, 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. (See prior posting.) Today in the case (Docket No. 20-746, April 26, 2021) the Supreme Court granted certiorari, summarily vacated the 9th Circuit's judgment upholding the restrictions, and remanded for further consideration in light of Tandon v. Newsom. (Order List).

Supreme Court Hears Oral Arguments Today In Challenge To California's Required Disclosure of Donors To Non-Profits

The U.S. Supreme Court this morning will hear consolidated oral arguments in Thomas More Law Center v. Rodriquez (SCOTUSblog case page) and Americans for Prosperity Foundation v. Rodriquez (SCOTUSblog case page). 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. Petitioners argue that disclosure subjects donors to dangers of hate mail and retaliation.  Thomas More Law Center describes its mission, in part, as preserving America’s Judeo-Christian heritage and defending the religious freedom of Christians. This post will be updated with a link to the transcript of the oral arguments when it becomes available later today.

Here are links to the audio and transcript of the full arguments.

Virginia GOP Rejects Rule Change To Allow Absentee Voting For Religious Reasons In Upcoming Saturday Convention

Washington Post reports that in a vote last Thursday, Virginia's Republican State Central Committee refused to amend its rules to allow observant Jews and others with religious objections to vote absentee in the upcoming Saturday, May 8, nominating convention for governor and two other statewide offices.  While a narrow majority favored the change, rules required a 75% vote to change party rules. Those who opposed the change said that the issue was raised too close to the election date. The request was made in a letter from four rabbis earlier this month. The absentee option is already available for active-duty military. [Thanks to Scott Mange for the lead.]

Cutoff of Pastor's City Council Invocation Did Not Violate 1st Amendment

In Gundy v. City of Jacksonville, Florida, 2021 U.S. Dist. LEXIS 78850 (MD FL, March 22, 2021)-- decided last month but just available on Lexis-- a Florida federal district court dismissed a suit by a pastor who contended that City Council president Aaron Bowman improperly shut off plaintiff's microphone in the middle of the invocation that he was offering. Finding that plaintiff's 1st Amendment rights were not violated, the court said in part:

First, the Court finds Mr. Bowman's actions were not viewpoint discrimination. Mr. Bowman's comment when interrupting Plaintiff and the subsequent removal of Plaintiff's amplification were for the stated purpose of preserving the invocation for its intended purpose. That purpose, according to the City, was to maintain "a tradition of solemnizing its proceedings . . . for the benefit and blessing of the Council." ...

During his invocation, Plaintiff's remarks were at times objectively disparaging of the City Council and the incumbent administration.... While the remarks might have been entirely appropriate if delivered in a more public forum or even Plaintiff's pulpit, they were subject to the reasonable and viewpoint-neutral limitations set by the City for the invocation period — a nonpublic forum.

Plaintiff has filed an appeal. Florida Politics has additional background on the case.

Recent Articles of Interest

From SSRN:

• Elizabeth Sepper & James David Nelson, The Religious Conversion of Corporate Social Responsibility, (Emory Law Journal, Vol. 71, No. 2, 2021).
• Lee Epstein & Eric A. Posner, The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait, (Supreme Court Review, 2021).
• Zachary B. Pohlman, Fulton and Government-Mandated Vaccinations,(Canopy Forum, 2021).
• Richard Luedeman, Voting as a Genuinely Religious Act in a World of Free Exercise Maximalism, (UC Davis Law Review Online (Forthcoming 2021)).
• Craig Westergard, LGBT Discrimination as Religious Discrimination: Ruse or Resolution?, (26 Barry Law Review 45 (2020)).
• Omar Farahat, Peace to those of Faith: Political Affiliation and Belonging in Classical Islamic Thought, (Routledge Handbook of Citizenship in the Middle East and North Africa 2021).
• Malcolm Katrak & Shardool Kulkarni, Unravelling the Indian Conception of Secularism: Tremors of the Pandemic and Beyond,  (Secularism and Nonreligion, 2021).
• Mesenbet Assefa Tadeg, The Dangers of Hate Propaganda: Why Ethiopia Needs Democratic Militancy, (October 18, 2020).
• Omar Farahat, Moral Value and Commercial Gain: Three Classical Islamic Approaches, (Journal of Arabic and Islamic Studies, Forthcoming).

From SmartCILP:

• Allan W. Vestal, Faithfully Enforcing the Religious Liberty Guarantees of the Northwest Territory States, 34 Brigham Young University Journal of Public Law 403-440 (2020).
• Kathleen Ritter, We Are Not Struck with Blindness: The Establishment Clause and Religiously Motivated State Preemption of Municipal Non-Discrimination Law, 39 Columbia Journal of Gender & Law 205-250 (2020)).

Texas Will Now Allow Spiritual Advisor In Execution Chamber With Prisoner

 AP and Texas Tribune report that Texas prisons will now allow any inmate being executed to have his personal religious adviser with him in the execution chamber so long as the adviser is verified and passes a background check. This change in policy follows the U.S. Supreme Court's questioning of earlier Texas policies which first limited inmates to having the prison's Christian chaplain and then excluded all spiritual advisors. (See prior posting.) The policy change was signed on Wednesday by director of the Correctional Institutions Division of the Texas Department of Criminal Justice. [Thanks to Scott Mange for the lead.]

Biden Labels 1915 Armenian Massacre As "Genocide"

For the first time yesterday, a sitting U.S. President labelled the 1915 massacre of Armenians as "genocide". In a Statement (full text), President Biden said in part:

Each year on this day, we remember the lives of all those who died in the Ottoman-era Armenian genocide and recommit ourselves to preventing such an atrocity from ever again occurring. Beginning on April 24, 1915, with the arrest of Armenian intellectuals and community leaders in Constantinople by Ottoman authorities, one and a half million Armenians were deported, massacred, or marched to their deaths in a campaign of extermination. We honor the victims of the Meds Yeghern so that the horrors of what happened are never lost to history. And we remember so that we remain ever-vigilant against the corrosive influence of hate in all its forms....

The American people honor all those Armenians who perished in the genocide that began 106 years ago today.

NPR reports on the President's statement.

Britain's House of Commons Says China Is Guilty of Genocide

Britain's House of Commons yesterday adopted a resolution (full text of debate and resolution) declaring that China has committed genocide in its treatment of the Uyghurs. the Resolution reads:

That this House believes that Uyghurs and other ethnic and religious minorities in the Xinjiang Uyghur Autonomous Region are suffering crimes against humanity and genocide; and calls on the Government to act to fulfil its obligations under the Convention on the Prevention and Punishment of Genocide and all relevant instruments of international law to bring it to an end.

Reuters reports on Parliament's action.

Algerian Journalist Sentenced To Prison For Facebook Posts Offensive To Islam

Amnesty International reported yesterday that a court in Algeria on April 1 sentenced a journalist Said Djabelkheir, a specialist on Sufism, to three years in prison and a fine of 50,000 dinars ($375 US) for Facebook posts he authored:

In three online posts on Facebook in January 2020, Said Djabelkheir drew comparisons between Eid al-Adha and the Berber New Year celebrations; referred to some stories in the Qur’an as ‘myths; and said he considered some hadiths ‘apocryphal’.  The Sidi Mhamed Court of First Instance today convicted him of “offending the Prophet of Islam” and “denigrating the dogma or precepts of Islam" under Article 144bis[2] of Algeria’s Penal Code.

No order to take Djabelkheir into custody has yet been issued. Djabelkheir's lawyer plan to appeal his conviction.

Vermont State School Board Orders Payment Of Tuition To Religiously Affiliated Schools

In In re Appeal of Valente, (VT State Bd. Educ., April 21, 2021), the Vermont State Board of Education, in appeals by three families, ordered local school boards in districts without public high schools to pay students' tuition to religiously affiliated high schools. Vermont law requires school districts that do not have public high schools to pay tuition for students to attend another public or private school. The Vermont Supreme Court in Chittenden Town School Dist. v. Dept. of Educ.,(1999) limited the ability of districts to pay tuition to religious schools, while the U.S. Supreme Court has held that the 1st Amendment bars exclusion of religiously affiliated schools from general aid programs. The Board of Education said in part:

The type of use restriction and certification discussed in Mitchell may provide a reasonable option going forward for harmonizing the state and federal constitutional requirements. School districts ... could ask all ... schools to certify that public tuition payments will not be used to fund religious instruction or religious worship. Such an approach would place all independent schools on an equal footing; regardless of perceived or actual religious affiliation, all independent schools would be asked to provide the same assurance regarding the use of public tuition payments. No school would be excluded based solely on its religious affiliation. And no school would be required to “refrain from teaching religion.” ... Schools themselves would be left to decide whether to accept public tuition payments that could not be used to fund religious worship or religious instruction. 

The Board offers these observations with the caveat that this is not a rulemaking proceeding and it cannot, in this context, provide any binding direction to school districts. Further, as explained above, constitutional questions remain unsettled. As litigation moves through the courts, the permissible legal parameters may become clearer. Ultimately the courts will have to resolve whether the use restriction that Chittenden requires can co-exist with First Amendment requirements.

VTDigger reports on the decision.

USCIRF Issues Annual Report On International Religious Freedom

The U.S. Commission on International Religious Freedom yesterday announced the release of its 2021 Annual Report (full text).  The 108-page Report focuses on religious freedom violations in 26 countries. Summarizing it findings, the Report said in part:

For 2021, based on religious freedom conditions in 2020, USCIRF recommends that the State Department:

• Redesignate as CPCs [Countries of Particular Concern] the following ten countries: Burma, China, Eritrea, Iran, Nigeria, North Korea, Pakistan, Saudi Arabia, Tajikistan, and Turkmenistan;

• Designate as additional CPCs the following four countries: India, Russia, Syria, and Vietnam; 

• Maintain on the SWL [Special Watch List] the following two countries: Cuba and Nicaragua;

• Include on the SWL the following 10 countries: Afghanistan, Algeria, Azerbaijan, Egypt, Indonesia, Iraq, Kazakhstan, Malaysia, Turkey, and Uzbekistan; and

• Redesignate as EPCs [Entities of Particular Concern] the following seven nonstate actors: al-Shabaab, Boko Haram, the Houthis, Hay’at Tahrir al-Sham (HTS), Islamic State in the Greater Sahara (ISGS), Jamaat Nasr al-Islam wal Muslimin (JNIM), and the Taliban.

The Report also makes numerous policy recommendations to the U.S. government, including the prompt nomination of the ambassador-at-large for International Religious Freedom (IRF), special adviser for IRF on the National Security Council staff, special coordinator for Tibetan issues, and special envoy to monitor and combat antisemitism. It also recommends changes in U.S. handling of refugees and asylum seekers.

5th Circuit Remands Religious Medical Providers' Challenge To Anti-Discrimination Rules

In Franciscan Alliance, Inc. v. Becerra, (5th Cir., April 15, 2021), the U.S. 5th Circuit Court of Appeals remanded to a Texas federal district court a challenge by religious medical providers to a 2016 Health and Human Services rule that prohibited discrimination on the basis of "termination of pregnancy" and "gender identity." The appeals court noted that since the district court decision, "the legal landscape has shifted significantly." It pointed out: 

HHS repealed the 2016 rule and finalized a new rule in 2020; the Supreme Court interpreted Title VII’s prohibition of “sex discrimination” to include gender identity...; two district courts entered preliminary injunctions against the 2020 rule....; President Biden issued an executive order declaring that his administration would apply Bostock’s interpretation of Title VII to other statutes prohibiting sex discrimination; and HHS is again considering a new rule....

The court said that on remand the district court should consider they type of relief that should be granted and whether the case is moot.

Canadian Trial Court Upholds Most Applications of Quebec's Ban On Officials Wearing Religious Symbols

In Hak v. Attorney General of Quebec, (Que. Super. Ct., April 20, 2021), a Quebec (Canada) Superior Court judge in a 240-page opinion upheld, with two important exceptions, Bill 21 which prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. (See prior posting.) Here is CBC News' summary of the decision:

Quebec's secularism law violates the basic rights of religious minorities in the province, but those violations are permissible because of the Constitution's notwithstanding clause, a Superior Court judge ruled on Tuesday.

But the ruling by Justice Marc-André Blanchard also declared that the most contentious parts of the law — the religious symbols ban for many government employees — can't be applied to English schools.

The desire of English school boards to foster diversity by choosing who they hire is protected by the minority-language education rights in the Charter of Rights and Freedoms, Blanchard said in his decision.

Crucially, that section of the charter (23) is not covered by the notwithstanding clause....

Blanchard also ruled that members of the province's National Assembly can't be forced to provide services to the public with their faces uncovered.

In other words, MNAs are allowed to wear religious symbols that cover their faces, such as a niqab, in accordance with the section of the charter that guarantees every citizen the right to be eligible to vote and be a member of the legislature.

Quebec's Justice Minister says that an appeal is planned. Montreal Gazette and the New York Times also analyze the decision.

New Indictment Against Lev Tahor Over Kidnapping Of Minor

The U.S. Attorney's Office for the Southern District of New York yesterday announced the issuance of a superseding indictment (full text) bringing additional charges against leaders and members of the extremist Jewish sect Lev Tahor.  The new indictment in United States v. Helbrans, (SDNY, April 20, 2021) charges defendants with conspiring to transport a minor with intent to engage in criminal sexual activity and travel with intent to engage in illicit sexual conduct. It also repeats former charges of use of false documents and international parental kidnapping of a girl and her brother. The 250-member Lev Tahor sect is currently based in Guatemala.  The indictment stems from initially successful attempts to kidnap and return to Guatemala a 14-year old girl whose uncle had her married in a religious ceremony to a 19-year old member of the sect for purposes of a sexual relationship to procreate. The girl's mother had fled from Guatemala to New York with the girl and her brother. [Thanks to Scott Mange for the lead.]

Christian College Sues HUD Over Interpretation of Fair Housing Act

Suit was filed last week in a Missouri federal district court challenging a Directive issued last month by the U.S. Department of Housing and Urban Development interpreting the Fair Housing Act as barring discrimination on the basis of sexual orientation or gender identity. The 70-page complaint (full text) in The School of the Ozarks, Inc. v. Biden, (WD MO, filed 4/15/2021), in addition to claiming a number of procedural problems with the adoption of the Directive, alleges that it violates the 1st Amendment and the Religious Freedom Restoration Act. The complaint alleges in part:

1. This action challenges a federal agency directive that requires private religious colleges to place biological males into female dormitories and to assign them as females’ roommates. 

39. The Christian faith is an integral part of life at College of the Ozarks....

57. The College teaches human sexuality is a gift from God....

58. The College teaches that sex as determined at birth is a person’s God-given, objective gender, whether or not it differs from their internal sense of “gender identity,” and it bases this teaching on such Biblical passages as Genesis 1:27, Leviticus 18:22, Matthew 19:4, Romans 1:26–27, and 1 Corinthians 6:9–10.

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

Recent Articles of Interest

 From SSRN:

• Karsten Schubert, The Christian Roots of Critique. How Foucault's 'Confessions of the Flesh' Sheds New Light on the Concept of Freedom and the Genealogy of the Modern Critical Attitude, (Le foucaldien 7, no. 1, pp. 1-11 (2021)).
• Agustina Ramón Michel & Sonia Ariza Navarrete, Unexpected Uses of and Responses to Conscientious Objection to Legal Abortion, (REDAAS N° 13 January 2021).
• Fiona A. Miller, The Federal Spending Power: Building Forward after the Pandemic, (Healthcare Management Forum, Forthcoming).
• Barry Winston Bussey, Human Dignity Found In Religious Community, (in Barry W. Bussey & Angus J. L. Menuge, Eds., The Inherence of Human Dignity Law and Religious Liberty, Volume 2 (London: Anthem Press, 2021), 115-145).
• Anton Sorkin, A "Cruel Choice" Made Law: Freewheelin' Accommodation Claims and Harms of Conviction Endemic to Adverse Action, (University of Memphis Law Review, Forthcoming).
• Caroline Mala Corbin, Public School Teachers & Transgender Students & Pronouns, (Balkinization, March 19, 2020).
• Agustina Ramón Michel, Abortion, (The Oxford Handbook of Constitutional Law in Latin America, Oxford University Press, 2020).
• Jaina Green, Abortion Regulations: An Avenue for Abolishing Abortion?, (Southern University Law Review, Forthcoming).
• Preston Green, Julie Mead & Suzanne Eckes, Covenants to Discriminate: How the Anti-LGBT Policies of Participating Voucher Schools Might Violate the State Action Doctrine, (University of New Hampshire Law Review, Forthcoming).
• Enyinna S. Nwauche, A Customary Law of the Afrikaner People of South Africa, (in ES Nwauche (ed) Citizenship and Customary Law in Africa, Centre for African Legal Studies, 69-85 (2020)).
• John Picton, Lëhtimaki v Cooper: Duty and Jurisdiction in Charity Law, ((2021) 84 Modern Law Review 383).
• Cindy Lott, Mary Shelly & Nathan Dietz, Regulatory Breadth Index: A New Measurement of State-Level Charity Regulation (November 9, 2020).

From SSRN (Religious Law):

• Fajri Muhammadin, Islamic Ethics of the Conduct of War,  (Forthcoming Chapter in the Handbook of Islamic Ethics, Edited by Prof Mohammad Jafar Mahallati).
• Gargey Yadav, A Critical Study on Dharma with Respect to Justice in Western Jurisprudence, (March 26, 2021).
• T. K. Tushar, Evolution of Muslim Marriage Laws, (April 1, 2021).
• Nikos Koumoutzis, The Islamic Prohibition of Adoption as Limitation of the Right to Respect of Family Life (article 8 ECHR) – Revisiting ECtHR Harroudj v France, no. 43631/09, 4 October 2012, (Cuadernos de Derecho Transnacional 1/2021).
• Moorthy S. Muthuswamy, The Theme-Enablers Theory of Salafi Extremism, (February 19, 2021).

French Top Court Says Anti-Semitic Murderer of Jewish Woman Is Mentally Unfit To Stand Trial

France 24 reports that France's highest court, the Court of Cassation, ruled on Wednesday that a Muslim man who murdered Sarah Halimi, a Jewish woman, was not criminally responsible for the act.  The report says in part:

Halimi, an Orthodox Jewish woman in her sixties, died in 2017 after being pushed out of the window of her Paris flat by neighbour Kobili Traoré, who shouted "Allahu Akbar" ("God is great" in Arabic).

The verdict by the Court of Cassation, means Traoré will not face any trial. It confirmed past rulings from lower courts. 

Traoré, a heavy pot smoker, has been in psychiatric care since Halimi's death. The court said he committed the killing after succumbing to a "delirious fit" and was thus not responsible for his actions....

Following Wednesday's verdict, lawyers representing Halimi's family said they intend to refer the case to the European Court of Human Rights.

NIH Reverses Trump Era Restrictions On Fetal Tissue Research

 As reported by Politico:

The Biden administration on Friday moved to unwind strict Trump-era restrictions on federal-funded medical research using fetal tissue obtained by abortions, reversing policies that scientists warned would devastate the development of treatments for a broad range of diseases.

The Trump administration, under pressure from allied anti-abortion groups, ended fetal tissue research at the National Institutes of Health and established an ethics board to review government support for the research at universities and other labs. The board, which was filled with critics of the research, met just once and rejected 13 of 14 projects that NIH scientists had deemed worthy of support.

In a Notice (full text) published yesterday, the National Institutes of Health said in part:

This notice informs the extramural research community that HHS is reversing its 2019 decision that all research applications for NIH grants and contracts proposing the use of human fetal tissue from elective abortions will be reviewed by an Ethics Advisory Board. Accordingly, HHS/NIH will not convene another NIH Human Fetal Tissue Research Ethics Advisory Board.

Michigan Statute Protecting Parents' Faith Healing Includes Subjective Religious Interpretations

Michigan's Child Protection Law (MCL 722.634) provides:

A parent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be considered a negligent parent or guardian.

In In re Piland, (MI App., April 15, 2021), a Michigan state appellate court held that the trial court erred in refusing to give a jury instruction based on this statute in a case in which parental rights for three children were being revoked.  The parents had allowed a newborn infant who developed jaundice to die rather than call for medical help. The trial court had refused the instruction because it interpreted the statute to relate only to the practice of beliefs of a religious organization, and not to individualized beliefs.  The appellate court disagreed, saying in part:

The trial court’s interpretation of the word “legitimately,” as used in MCL 722.634, is that the religious beliefs being practiced must be legitimate. And, that, in order to be legitimate, those beliefs had to be part of the doctrine or tenants of a religion as opposed to a parent or guardian’s subjective interpretation of scriptures. The trial court’s interpretation, however, renders the statute unconstitutional. It is well-established that “government has no role in deciding or even suggesting whether the religious ground” for a person’s actions “is legitimate or illegitimate.” 

Jewish Sailor Gets Temporary Reprieve From Order To Shave Beard

Suit was filed yesterday in the D.C. federal district court by a Jewish sailor who was ordered to shave his beard which he maintains for religious reasons. Other plaintiffs in the case are Muslim sailors.  The complaint (full text) in Di Liscia v. Austin, (D DC, filed 4/15/2021), alleges in part:

1. Plaintiff Edmund Di Liscia, a devout Chassidic Jew and a Sailor in the United States Navy with a rating as an Electricians Mate, Nuclear Power 3rd Class Petty Officer (EMN3), seeks emergency relief to stop Defendants from forcing him to shave in violation of his sincerely held religious beliefs.

2. Over two years ago, shortly after joining the Navy, EMN3 Di Liscia received a “no-shave chit” permitting him to maintain his beard as a religious accommodation for his faith. That accommodation remained effective during his current deployment aboard the U.S.S. Theodore Roosevelt. Indeed, throughout the deployment, his fellow Sailors aboard the USS Roosevelt have all received MWR (Morale, Welfare, and Recreation) no-shave chits that allow them to shave only once every fourteen days.

3. But on or around April 14, 2021, EMN3 Di Liscia’s chief informed him that he must shave on the morning of April 16, 2021, and regularly thereafter....

Plaintiff moved for a TRO (memo in support of TRO). The military agreed that it would not require Di Liscia to shave, at least for the time being. The court issued a temporary restraining order (full text) barring the military from requiring him to shave or trim his beard. Military.com reports on the case.

HHS Proposes Reversal of Trump Administration Title X Family Planning Grant Rules

Yesterday the U.S. Department of Health and Human Services published a proposed rule that would reverse the Trump Administration rules on federally funded family planning services and return, with a few modifications, to the rules in effect before 2019.  As summarized by NPR News:

The [Trump Administration] rules ... forbid any provider who provides or refers patients for abortions from receiving federal funding through Title X to cover services such as contraception and STD screenings for low-income people....

The Trump administration implemented the current rules in an effort to "defund Planned Parenthood," as he had promised supporters during both his campaign and his presidency. That prompted more than 1,000 health clinics in dozens of states, including but not limited to Planned Parenthood, to leave the program.

The HHS Release (full text) titled Ensuring Access to Equitable, Affordable, Client-Centered, Quality Family Planning Services says in part:

For five decades, Title X family planning clinics have played a critical role in ensuring access to a broad range of family planning and related preventive health services for millions of low-income or uninsured individuals and others.... Title X providers offered clients a broad range of effective and medically safe contraceptive methods approved by the U.S. Food and Drug Administration. Title X-funded sexually transmitted infection (STI) and human immunodeficiency virus (HIV) screening services prevented transmission and adverse health consequences....

Given the previous success of the program, the large negative public health consequences of maintaining the 2019 rules, the substantial compliance costs for grantees, and the lack of tangible benefits, the Department proposes revoking the 2019 Title X regulations. As has been clearly borne out by case law and history, the Department has the discretion to make this determination and it is in the interest of public health....

USCIRF Issues Report On Antisemitism In Europe

Yesterday the U.S. Commission on International Religious Freedom issued a 58-page report (full text) on Antisemitism In Europe. The Report says in part:

Measured against their own long-standing and common political commitments, governments of the 11 states covered in this report have responded differently to the challenges of antisemitism in their countries. In some countries, antisemitic attitudes are a greater challenge than antisemitic incidents. In others the reverse holds true.

In 10 of the 11 countries, though, efforts seem insufficient to meet the antisemitism challenges that present themselves....

The Report includes recommendations for United States policies to fight antisemitism in Europe.

Lawsuit Claims South Carolina's Blaine Amendment Is Unconstitutional

Suit was filed yesterday in a South Carolina federal district court asking the court to declare that South Carolina's Blaine Amendment (Art. XI, Sec. 4 of the South Carolina Constitution) violates the Equal  Protection and Free Exercise clauses of the U.S. Constitution.  The complaint (full text) in Bishop of Charleston v. Adams, (D SC, filed 4/14/2021) reads in part:

1. In response to the COVID-19 pandemic ravaging our state and nation, the U.S. Congress and South Carolina General Assembly have appropriated substantial sums of public funds to provide relief to local governments, employers, non-profit organizations, schools, and colleges.

2. However, because the South Carolina Constitution contains a provision, a so-called Blaine Amendment, which prohibits public funds from being allocated to private or religious schools, the schools and universities represented by Plaintiffs are legally prohibited from accessing these relief funds.

3. Because the Blaine Amendment was born in bigotry and prejudice based on race and religion, it violates the equal protection and free exercise clauses of the U.S. Constitution, and should no longer bar Plaintiffs’ schools from equal access to these essential relief funds.

The complaint goes on to trace the specific history of the Blaine Amendment in South Carolina.  Plaintiffs in the case are a Catholic diocese that operates 33 schools and an association of private colleges. The Center Square reports on the lawsuit.

FDA Lifts In-Person Dispensing Requirement For Abortion Drug During COVID Emergency

On Monday, the U.S. Food and Drug Administration in a letter (full text) to the American College of Obstetricians and Gynecologists and the Society for Maternal-Fetal Medicine announced that during the COVID-19 emergency, it is lifting the in-person dispensing requirement for the abortion drug  Mifepristone. The agency said that it was exercising enforcement discretion because of the additional COVID-related risks to patients and healthcare personnel involved in clinic visits solely to obtain the drug.  It likewise will allow prescriptions for Mifepristone to be filled by mail. Washington Free Beacon reports on criticism of the FDA's move by Republican lawmakers and anti-abortion groups.

6th Circuit Judges Debate Eugenics In Yesterday's Abortion Decision

Yesterday's important 6th Circuit en banc decision (see prior posting) upholding Ohio's statute barring doctors from knowingly performing Down-syndrome motivated abortions includes interesting debates among the various judges on the relevance of the historic eugenics movement. This focus builds on a 2019 concurring opinion in the U.S. Supreme Court by Justice Thomas in Box v. Planned Parenthood (See prior posting.) Here is an example of the exchanges between the 6th Circuit judges in yesterday's opinions:

Judge Griffin concurring (at pg. 36):

I write separately to emphasize Ohio’s compelling state interest in prohibiting its physicians from knowingly engaging in the practice of eugenics....

Many think that eugenics ended with the horrors of the Holocaust. Unfortunately, it did not. The philosophy and the pure evil that motivated Hitler and Nazi Germany to murder millions of innocent lives continues today. Eugenics was the root of the Holocaust and is a motivation for many of the selective abortions that occur today. 

Judge Donald dissenting (at pg. 108):

... Ohio’s and the various concurrences’ invocations of the term “eugenics” fail to acknowledge the difference between (1) the purpose with which a woman may decide to have an abortion after a Down-syndrome diagnosis, and (2) the goals of eugenics as a means of “improving stock” .... Put simply, the use of the term “eugenics” ignores the difference between a private choice and a social movement. I find it exceedingly, if not undeniably, unlikely that a woman choosing an abortion because of a prenatal Down syndrome diagnosis is doing so with any intention of improving the quality of humankind.... Rather, she likely makes the decision based on a multitude of deeply personal factors, including her financial and emotional ability to commit to raising a child with Down syndrome.... The state legislature now commandeers that personal decision-making, which interferes not only in a profoundly private personal decision, but also does violence to the ethical norm of patient autonomy, likely leading to doctors withholding information from patients and patients concealing information from their doctors....

6th Circuit En Banc Upholds Ohio's Ban On Doctors Knowingly Performing Abortions Because of Down Syndrome

In Preterm-Cleveland v. McCloud, (6th Cir., April 13, 2021), the U.S. 6th Circuit Court of Appeals sitting en banc in a complicated set of fragmented opinions spanning 111 pages upheld Ohio's statute which prohibits a doctor from performing an abortion if the doctor has knowledge that the woman’s reason, in whole or part, for having the abortion is that she does not want a child with Down syndrome. The vote was 9-7. 

Eight judges joined several portions of Judge Batchelder's opinion to make these portions the opinion of the court.  Critical to the majority opinion was the fact that the law does not apply so long as the woman does not disclose the reason for her abortion to the doctor performing it. Indeed, according to the majority, even if the doctor performing the abortion learns of the fetal-Down-syndrome diagnosis, "knowledge of the diagnosis is not knowledge of the reason." With that understanding, the majority went on to say in part:

The right to an abortion before viability is not absolute. The “[S]tate may regulate abortion before viability as long as it does not impose an undue burden on a woman’s right to terminate her pregnancy.”...

H.B. 214 advances the State’s legitimate interests and will not prevent a large fraction of the women it affects from obtaining abortions. As mentioned, H.B. 214 furthers three valid and legitimate interests by protecting: (1) the Down syndrome community from the stigma associated with the practice of Down-syndrome-selective abortions, (2) pregnant women and their families from coercion by doctors who advocate abortion of Down-syndrome-afflicted fetuses, and (3) the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down-syndrome-selective abortions. These are legitimate interests....

The burdens here are that H.B. 214 will (1) prevent a full, open, and honest conversation with the doctor who will perform the abortion by forcing the woman to withhold this reason for the abortion and (2) require her to engage in “doctor shopping” to find a doctor who is unaware of her reason for having the abortion....

Ohio’s broad definition of knowledge does not alter the reality that the woman remains in control of who knows, and who does not know, the reason for her abortion. And the record simply does not support the notion that a large number of doctors would independently learn of the reason such that it would place a substantial obstacle in the path of most women seeking abortions.... Ohio’s knowledge requirement does not amount to an undue burden.

Only five judges joined other parts of Judge Batchelder's opinion. Four separate concurring opinions were filed, as were six separate dissenting opinions. Cincinnati Enquirer reports on the decision.

UPDATE: For additional discussion of the case, see this later posting.

Multi-Faith Group Issues Statement Questioning Religious Exemptions From COVID Orders

On Monday, some 27 religious organizations representing various Christian, Jewish and Muslim traditions issued a statement (full text) expressing concern that states are going too far in adopting legislation exempting houses of worship from COVID-19 health orders and other emergency orders.  The statement reads in part:

We appreciate the desire to protect our right to worship and gather for religious activities. Too often, however, these bills are overly broad and could result in policies that threaten public health and safety.

Religious freedom is a fundamental American value, and the freedom to worship in accordance with one’s spiritual practices and traditions is a right of the highest order. At the same time, religious freedom does not demand tying the hands of public officials who are trying to safeguard public health as they respond to unforeseen events like pandemics, natural disasters and other emergencies. Indeed, all of our denominations have found creative ways to provide opportunities for worship during the pandemic, recognizing the spiritual sustenance and sense of community that religious practices provide....

Times of public crisis demand that all community leaders—religious, secular, and governmental—work together to find solutions. By giving religious gatherings a pre-emptive exemption from future emergency orders, we fear that these bills will unintentionally paint religious communities as part of the problem, not the solution, and thereby undercut our ability to partner with community leaders to defeat the crisis.

[Thanks to Don Byrd at BJC for the lead.]

Biden Statement on the Beginning of Ramadan

Yesterday President Biden issued a Statement on the Beginning of Ramadan (full text), saying in part:

On my first day as President, I was proud to end the shameful Muslim travel ban, and I will continue to stand up for human rights everywhere, including for Uyghurs in China, Rohingya in Burma, and Muslim communities all over the world.

As we remember those who we have lost since last Ramadan, we are hopeful for brighter days ahead.  The Holy Qur’an reminds us that “God is the light of the heavens and earth,” who leads us out of darkness to the light.  Although our White House festivities will be held virtually this Ramadan, Jill and I look forward to resuming the traditional White House Eid celebration in person next year, inshallah.  We wish your families an inspiring and rewarding month.

Russian Opposition Leader Navalny Sues Prison Officials To Obtain A Quran

According to reports from AP and The Hill, imprisoned Russian opposition leader Alexei Navalny is suing prison officials to obtain access to volumes of the Quran with commentary that he purchased. AP says in part:

Navalny has faced criticism over the years for using nationalist rhetoric regarding migrants, many of whom arrive in Russia from predominantly Muslim nations in Central Asia.

He said Tuesday he had realized his “development as a Christian requires studying the Quran,” adding that he decided to become “the Quran champion among Russian non-Muslim politicians.”

Prison authorities say that they must screen all books for extremism before making them available to prisoners, and that this will take three months. Navalny is in the midst of a hunger strike and prison officials are threatening to force feed him. 

Ramadan Began Last Night; Minnesota Gives Religious Exemption From Curfew Order

Ramadan began last night. As reported by the Minneapolis Star Tribune, Minnesota Governor Tim Walz's 7:00 pm curfew order for several counties-- issued after 20-year-old Daunte Wright was shot and killed by police in a Minneapolis suburb-- contains an exemption for those traveling to and from religious services. The exemption was clarified after the Minnesota chapter of CAIR issued a statement calling for such an exemption.

6th Circuit Grants Initial Hearing En Banc In Tennessee Abortion Case

On Friday, the U.S. 6th Circuit Court of Appeals in a high-profile abortion case, by a vote of 10-6, took the unusual step of agreeing to hear an initial appeal en banc, rather than allowing the appeal to be heard initially by a 3-judge panel.  In Bristol Regional Women's Center, P.C. v. Slatery, (6th Cir., April 9, 2021), Judge Moore, joined by 5 other judges, issued a dissent to the majority's one-sentence order:

This case concerns abortion. Specifically, it concerns the constitutionality of a Tennessee abortion law that sets a 48-hour waiting period before a woman can obtain an abortion. After the district court held Tennessee’s waiting-period law unconstitutional and permanently enjoined its enforcement, the officials defending the law appealed. Appellants sought a stay pending appeal. A three-judge panel denied that request, with Judge White and myself concluding that Appellants were unlikely to succeed on the merits of their appeal. Judge Thapar disagreed. So vehemently did he disagree that he called for “immediate correction” of the stay order, urging Appellants to seek initial hearing en banc. Appellants readily obliged, filing a petition for initial hearing en banc. By granting that petition, a majority of this court has sent a dubious message about its willingness to invoke that extraordinary—and extraordinarily disfavored—procedure in ideologically charged cases....

The grant of initial hearing en banc in this case damages the reputation of this court.... Indeed, the inescapable suggestion of Appellants’ petition for initial hearing en banc is that there are judges on this court who will always side with Appellants on the issue of abortion and will upend standard practice to do so. Today we could have sent a message affirming this court’s impartiality and independence. The majority declined.

Courthouse News Service reports on the decision. [Thanks to Scott Mange for the lead.]

Recent Articles of Interest

 From SSRN:

• Adam McDuffie, 'Law and Order,' Canopy Forum, (January 11, 2021).
• Jennifer Piatt, James G. Hodge & Leila Barraza, When Can You Be Required to Get a COVID-19 Vaccine?, (Slate - Future Tense, Forthcoming).
• James Stern, First Amendment Lochnerism & the Origins of the Incorporation Doctrine, (University of Illinois Law Review, Vol. 2020, No. 5, 1501).
• Zalman Rothschild, Free Exercise Partisanship, (Cornell Law Review, Vol. 107, No. 4, 2022).

From SmartCILP:

• John Witte Jr. & Andrea Pin, Faith in Strasbourg and Luxembourg? The Fresh Rise of Religious Freedom Litigation in the Pan-European Courts, 70 Emory Law Journal 587-662 (2021).
• Dallan F. Flake, Restoring Reasonableness to Workplace Religious Accommodations, 95 Washington Law Review 1673-1724 (2020).

Supreme Court Enjoins, Pending Appeals, California Limits On In-Home Worship Services

Late Friday night, in another case on its so-called "shadow docket", the U.S. Supreme Court in Tandon v. Newsom,  (Sup. Ct., April 9, 2021), granted an injunction preventing enforcement during the appeal process of California's COVID-19 order limiting religious gatherings in homes to three households. In a 5-4 decision, the majority in a 4-page per curiam opinion outlined important principles to be applied in deciding free exercise claims, saying in part:

First, government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise....

Second, whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue....

California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.

Justice Kagan filed a 2-page dissent, joined by Justices Breyer and Sotomayor. They said in part:

The First Amendment requires that a State treat religious conduct as well as the State treats comparable secular conduct. Sometimes finding the right secular analogue may raise hard questions. But not today. California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at home gatherings of all kinds, religious and secular alike. California need not, as the per curiam insists, treat at-home religious gatherings the same as hardware stores and hair salons—and thus unlike at-home secular gatherings, the obvious comparator here.

Chief Justice Roberts also dissented, without filing an opinion. Volokh Conspiracy blog has more on the decision.

Idaho Supreme Court: Marijuana Ban Does Not Violate Free Exercise Rights

In State of Idaho v. Heath, (ID Sup. Ct., April 8, 2021), the Idaho Supreme Court held that the state's prohibition of marijuana does not violate defendant-appellant's right to religious liberty.  The issue arose as appellant attempted to recover a pipe and bong made from elk antler, seized as contraband (along with marijuana), during a police traffic stop. The court said in part:

... Heath contends that the provisions of the [Controlled Substances Act] prohibiting the use of marijuana are not neutral and generally applicable. However, Heath's arguments do not support his conclusion. Certainly, the prohibition of marijuana under the CSA impairs Heath's ability to consume marijuana, which he attests is an important element of his belief system.... [W]e will not question the sincerity of his beliefs. But the impact of the CSA on Heath's ability to legally practice his beliefs is not the dispositive issue. Rather, the issue is whether the CSA proscribes religious use of marijuana while permitting non-religious use, or has been designed so that it applies primarily to religiously motivated conduct..... Heath has made no such argument.

11th Circuit: Rastafarian Paramedic Was Offered Reasonable Accommodation

In Bailey v. Metro Ambulance Services, Inc., (11th Cir., April 6, 2021), the U.S. 11th Circuit Court of Appeals held that an ambulance company had offered a Rastafarian paramedic a reasonable accommodation of his religious beliefs as required by Title VII. The court said in part:

AMR offered Bailey a reasonable accommodation. It provided Bailey with the opportunity to maintain his beard and to work on the non-emergency-transport side of its operations, for which DeKalb County’s facial-hair policy did not apply. Had Bailey accepted the offer, his salary, hours, and job description would have remained the same as if he had worked either exclusively on the emergency side or on both the emergency and non-emergency sides of AMR’s operations. As a result, his terms and conditions of employment would not have been affected by the accommodation AMR offered.

Judge Rosenbaum filed a concurring opinion. [Thanks to Joshua Sarnoff via Religionlaw for the lead.]

Muslim Group Sues Facebook For Consumer Fraud Because of Online Hate Speech

The non-profit organization Muslim Advocates filed suit yesterday in District of Columbia Superior Court against Facebook and its executives alleging that their failure to take down anti-Muslim posts, while claiming to do so, is fraudulent and violates the D.C. Consumer Protection Procedures Act.  The complaint (full text) in Muslim Advocates v. Zuckerberg, (DC Super. Ct., filed 4/8/2021) alleges in part:

Every day, ordinary people are bombarded with harmful content in violation of Facebook’s own policies on hate speech, bullying, harassment, dangerous organizations, and violence. Hateful, anti-Muslim attacks are especially pervasive on Facebook. 

Yet Facebook refuses to “remove” this content or “take it down,” as its executives repeatedly promised that they and the company would do when they learn of such content. Instead, in an effort to convince Congress, civil rights groups, and the public that their product is safe, Facebook’s officials have consistently misrepresented the company’s actual practices when it comes to enforcing Facebook’s own its own standards and policies to keep Facebook free of hate speech and other harmful content....

Facebook has been used, among other things, to orchestrate the Rohingya genocide in Myanmar, mass murders of Muslims in India, and riots and murders in Sri Lanka that targeted Muslims for death. Anti-Muslim hate groups and hate speech run rampant on Facebook with anti-Muslim posts, ads, private groups, and other content.....

Washington Post reports on the lawsuit.

Christian Wedding Photographer Sues Over NY Public Accommodation Law

Suit was filed this week in a New York federal district court challenging on 1st Amendment grounds the application of New York's public accommodation law to a Christian wedding photographer.  Among other things, the law broadly prohibits sexual orientation discrimination.  The complaint (full text) in Emilee Carpenter, LLC v. James, (WD NY, filed 4/6/2021), alleges in part:

[T]he Accommodations Clause ... makes it unlawful for Emilee to treat photography requests for same-sex engagements and weddings different from photography requests for opposite-sex weddings—whether by responding to the former more slowly, by always referring the former to another photographer, or by offering any part of her services to the latter but not the former, such as posting wedding photographs or blogs for opposite-sex weddings on her website but not posting wedding photographs or blogs for same-sex weddings.

... In short, the Accommodations Clause forces Emilee to celebrate same-sex engagements or weddings and would require her to promote messages that violate her religious beliefs or require her to participate in religious ceremonies that violate her religious beliefs, something she cannot do....

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

7th Circuit: Walmart Need Not Accommodate Seventh Day Adventist

In EEOC v. Walmart Stores East, L.P., (7th Cir., March 31, 2021), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, held that accommodating the scheduling need of a Seventh Day Adventist would impose an undue burden on Walmart. The majority, in an opinion by Judge Easterbrook, said in part:

According to the EEOC, Walmart could have offered Hedican several accommodations that would have enabled him to be an assistant manager. One would have been to give him that job and let him trade shifts with other assistant managers. But that would not be an accommodation by the employer, as Title VII contemplates. This proposal would thrust on other workers the need to accommodate Hedican’s religious beliefs. That’s not what the statute requires..... Title VII does not require an employer to offer an “accommodation” that comes at the expense of other workers.

Judge Rovner dissented, saying in part:

Although Ahern considered whether it might be feasible to adjust other assistant managers’ schedules in some manner (including voluntary shift‐trades) so that Hedican would never have to work on a Friday night or Saturday, one thing she did not do is consult with the other managers in making her assessment....

Discussion of the difficulty of accommodating Hedican brings to mind the sorts of excuses employers long trotted out for why it was impractical to hire women of child‐bearing age....

JD Supra reports on the decision.

Suit Against Alabama Is Dropped After Voter Registration Form Is Amended

Last October, the Freedom From Religion Foundation sued Alabama's Secretary of State challenging language in Alabama's voter registration form. The oath in the form ends with "so help me God." (See prior posting.) Yesterday, FFRF announced that it is voluntarily dismissing the suit because Alabama has amended the form to allow voters to opt out of that language. The new mail-in form allows a voter to check a box that says, "OPTIONAL: Because of a sincerely held belief, I decline to include the final four words of the oath above." The online form has also been changed.

Missouri Supreme Court Upholds Some Claims of Failure To Supervise Abusive Clergy

In John Doe 122 v. Marianist Province of the United States, (MO Sup. Ct., April 6, 2021), the Missouri Supreme Court dismissed negligent supervision claims of plaintiff who was sexually abused by a Marianist brother in the early 1970's. In dismissing the claim, the court relied on its earlier precedent in Gibson v. Brewer, (1997). However the court reversed the trial court's dismissal of plaintiff's intentional failure to supervise claims, saying in part:

Using all of the evidence before them, including Father Doyle’s expert testimony, the jury may infer Chaminade knew the risk that Brother Woulfe would visit sexual abuse upon a student was certain or substantially certain and – if so – whether Chaminade disregarded that known risk. And they may not. The only issue before this Court, and the issue on which the circuit court erred, is whether Father Doyle’s testimony (taken together with all the other evidence) is sufficient for the jury to draw that inference reasonably if persuaded to do so. This Court concludes there is.... 

St. Louis Today reports on the decision.

British Court Says Removal of Franklin Graham Bus Ads Violated Religion and Speech Rights

In Lancaster Festival of Hope With Franklin Graham v. Blackpool Borough Council, (Manchester Cty. Ct., April 1, 2021), a British trial court held that the Equality Act 2010 and the European Convention on Human Rights were violated when banner ads for the Lancaster Festival of Hope were removed from public buses. According to the court:

Upon the Defendants receiving complaints from members of the public about the advertisements, the advertisements were removed from the buses. The complaints related to Franklin Graham and his association with the Festival, and predominantly referred to his views on homosexuality and same-sex marriage as being offensive.

In finding a violation of the Equality Act, the court said in part:

The complaints arose from the objections of members of the public to the religious beliefs. The removal came about because of those complaints. I find it also came about because the Defendants allied themselves on the issue of the religious beliefs with the complainants, and against the Claimant and others holding them. If there were any doubt about that it is made explicit by the content of the press statement issued on behalf of the Second Defendant when the advertisements were removed....

Finding a violation of the European Convention, and thus of the Human Rights Act 1998, the court said in part:

Yes, the Claimant was still able to advertise its event and yes, it was still a success. But “it turned out all right in the end” cannot be an answer to the question of whether the interference with a fundamental right to freedom of expression can be justified. The Defendants had a wholesale disregard for the right to freedom of expression possessed by the Claimant. It gave a preference to the rights and opinions of one part of the community without having any regard for the rights of the Claimant or those who shared its religious beliefs. It made no effort to consider whether any less intrusive interference than removing the advertisements altogether would meet its legitimate aim.

Christianity Daily reports on the decision.

Suit Says Housing Discrimination Based On Family Size Is Religious Discrimination Against Orthodox Jews

A lawsuit was filed yesterday in a New York federal district court by a couple who claim that the city's public housing rules which effectively limit the size of families that are eligible for apartments through the affordable housing lottery operate to discriminate against Orthodox Jewish families. The complaint (full text) in Katz v. New York City Housing Preservation & Development, (SD NY, filed 4/6/2021) alleges:

Plaintiffs and their family members have a sincerely held religious belief that having a large family is both an obligation and a blessing from God....

Orthodox Jewish families are at an inherent disadvantage in applying for affordable housing lotteries, because even the average family, with 4.1 children, would exceed the maximum family size requirement of 6 individuals.

Plaintiffs allege that the policy violates city, state and federal anti-discrimination laws as well as the 1st Amendment.   AP reports on the lawsuit.

Republican Arkansas Governor Vetoes Bill Banning Gender Transition Procedures [Update: Veto Override]

 As reported by NPR, Arkansas Republican Governor Asa Hutchinson yesterday vetoed Arkansas House Bill 1570 ("Save Adolescents From Experimentation (SAFE) Act") which prohibits physicians from providing gender transition procedures to minors. Hutchinson told reporters that the bill would set:

new standards of legislative interference with physicians and parents as they deal with some of the most complex and sensitive matters involving young people.

A majority of the Arkansas legislature can override the Governor's veto.

UDATE: On April 6, the Arkansas legislature overrode the Governor's veto by a vote of 71-24. (ABC News).

Suit Claims Enforcement of Deed Restriction Against Synagogue Violates Religious Exercise Rights

Suit was filed late last month in a Texas federal district court against the City of Houston seeking to block it from enforcing a deed restriction against a small Orthodox synagogue that meets in a house zoned only for residential use.  The complaint (full text) in TORCH (Torah Outreach Resource Center of Houston) v. City of Houston, Texas, (SD TX, filed 3/25/2021), alleges that the city's selective enforcement of the deed restriction violates RLUIPA, the Texas Religious Freedom Restoration Act, and the federal Fair Housing Act. First Liberty Institute issued a press release announcing the filing of the lawsuit.

UPDATE: An April 20 announcement by First Liberty indicates that the case has been settled, with the City of Houston agreeing not to enforce deed restrictions against the synagogue and to dismiss citations it has already issued.

Christian Student Group Wins Suit Seeking To Limit Its Leadership To Believers

In Intervarsity Christian Fellowship/USA v. Board of Governors of Wayne State University, (ED MI, April 5, 2021), a Michigan federal district court held that Wayne State University violated the free exercise, free speech, association and assembly rights of a Christian student organization (IVCF) when the University suspended the group's status as a Recognized Student Organization.  The University took this action because IVCF violated the school's non-discrimination policy by insisting that its leaders agree with IVCF's  “Doctrine and Purpose Statements,” “exemplify Christ-like character, conduct and leadership,” and describe their Christian beliefs. In an 83-page opinion, the court said in part:

The First Amendment provides religious organizations the right to select their own ministers, and, under the First Amendment and §1983, organizations can sue the government for violating that right....

Plaintiffs also provide uncontradicted evidence that student leaders, called “Christian leaders,” qualify as ministers under the First Amendment....  In essence, Plaintiffs’ student leaders participate in proselytizing efforts and are Plaintiffs’ chosen spiritual resource for students at Wayne State....

No religious group can constitutionally be made an outsider, excluded from equal access to public or university life, simply because it insists on religious leaders who believe in its cause...

Defendants have barred Plaintiffs from selecting leaders that share its Christian views while allowing other groups to engage in similar form of leadership selection. This divergent treatment cannot withstand constitutional scrutiny....

The court awarded an injunction and nominal damages. Detroit News reports on the decision.