Thursday, May 13, 2021

State Department Releases 2020 International Religious Freedom Report

 Secretary of State Anthony Blinken yesterday announced release of the 2020 International Religious Freedom Report. The report surveys the status of religious freedom in virtually every foreign nation. In his remarks, Secretary Blinken said in part:

To name just a few examples from this year’s report, Iran continues to intimidate, harass, and arrest members of minority faith groups, including Baha’i, Christians, Jews, Zoroastrians, Sunni and Sufi Muslims.

In Burma, the military coup leaders are among those responsible for ethnic cleansing and other atrocities against Rohingya, most of whom are Muslim, and other religious and ethnic minorities around the world.

In Russia, authorities continue to harass, detain, and seize property of Jehovah’s Witnesses as well as members of Muslim minority groups on the pretense of alleged extremism.

In Nigeria, courts continue to convict people of blasphemy, sentencing them to long-term imprisonment or even death.  Yet the government has still not brought anyone to justice for the military’s massacre of hundreds of Shia Muslims in 2015.

Saudi Arabia remains the only country in the world without a Christian church, though there are more than a million Christians living in Saudi Arabia.  And authorities continue to jail human rights activists like Raif Badawi, who was sentenced in 2014 to a decade in prison and a thousand lashes for speaking about his beliefs.

And China broadly criminalizes religious expression and continues to commit crimes against humanity and genocide against Muslim Uyghurs and members of other religious and ethnic minority groups.

Today, I’m announcing the designation of Yu Hui, former office director of the so-called Central Leading Group Preventing and Dealing with Heretical Religions, of Chengdu, for his involvement in gross violations of human rights, namely, the arbitrary detention of Falun Gong practitioners.  Yu Hui and his family are now ineligible for entry into the United States.

10th Circuit Hears Oral Arguments In Ministerial Exception Case

On Tuesday, the U.S. 10th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Tucker v. Faith Bible Chapel International.  In the case, a Colorado federal district court refused to dismiss on the pleadings a ministerial exception case. At issue is whether a science teacher and chaplain/ director of student life at Faith Christian Academy is a "minister" for purposes of the exception.  Plaintiff  was fired after he organized a controversial chapel service titled "Race and Faith." Reuters has additional background on the oral arguments.

Court Wil Not Enjoin South Carolina "No Aid" Clause

In Bishop of Charleston v. Adams, (D SC, May 11, 2021), a South Carolina federal district court refused to grant a preliminary injunction in a suit challenging the constitutionality of the "no aid" clause in South Carolina's Constitution. That clause bars the use of public funds to benefit any religious or other private educational institution. Plaintiffs, which include a diocese representing 33 Catholic schools, sought access to federal CARES Act funds that had been directed to South Carolina. The court distinguished this case from the U.S. Supreme Court's decision in Espinoza v. Montana Dep’t of Revenue which struck down Montana's "no aid" clause.  The court said in part:

[T]he Supreme Court struck down Montana’s no-aid provision precisely because it discriminated against religious schools but not other private schools, creating an implicit contrast with no-aid provisions like South Carolina’s that encompass both religious and private non-religious schools. Unlike the provision at issue in Espinoza, South Carolina’s no-aid provision prohibits the use of public funds for the direct benefit of religious and non-religious private schools alike. In other words, South Carolina’s provision discriminates along the private/public divide, not the religious/non-religious divide.

Wednesday, May 12, 2021

New Pew Survey On Jewish Americans Released

The Pew Research Center yesterday released a 248-page survey Jewish Americans in 2020. (Summary of Report) (Full text of Report). The report estimates the Jewish population in the United States to be 7.5 million. Its one-sentence summary of the detailed and extensive report is:

U.S. Jews are culturally engaged, increasingly diverse, politically polarized and worried about anti-Semitism.

Missouri AG Sues County Over COVID Restrictions

Missouri's Attorney General yesterday filed suit in state court against the St. Louis County Executive challenging the county's COVID-19 orders.  The complaint (full text) in State of Missouri ex. rel. Schmitt v. Page, (MO Cir. Ct., filed 5/11/2021), alleges, among other things, that the orders violate the state's Religious Freedom Restoration Act by requiring pre-approval of large religious gatherings and imposing capacity limits and  masking requirements. The Attorney General issued a press release announcing the filing of the lawsuit. AP reports on the lawsuit.

Summary Judgment Denied To Plaintiffs Challenging Refusal of High School Tournament To Accommodate Sabbath Observance

In Chung v. Washington Interscholastic Activities Association, (WD WA, May 10, 2021), five current and former high school students sued the state's Interscholastic Activities Association for failing to accommodate Seventh Day Adventists' Sabbath observance in scheduling and administering the high school state tennis championships. The court refused to grant plaintiffs' summary judgment on any of their claims. It found that four of the plaintiffs lacked standing since they had not yet reached the state championship tournament. As to the remaining plaintiff who had standing, the court held that material issues of fact remain on the question of whether her federal free exercise claim is subject to strict scrutiny. Analyzing her state free exercise claim, the court held that plaintiff failed to demonstrate a substantial burden on her religious exercise since she was merely denied the right to participate in post-season play in the sport of her choice.

Tuesday, May 11, 2021

Vatican Cautions U.S. Bishops Over Moves To Deny Communion To President Biden

AP reported last month that the U.S. Conference of Catholic Bishops is considering issuing a document that would call for denying Communion to public officials-- including President Joe Biden-- who support abortion rights. Now the Vatican has made its views on the process known.  According to yesterday's National Catholic Reporter:

The Congregation for the Doctrine of the Faith has urged the U.S. bishops to proceed with caution in their discussions about formulating a national policy "to address the situation of Catholics in public office who support legislation allowing abortion, euthanasia or other moral evils."...

In the letter to Archbishop José Gomez of Los Angeles, president of the U.S. Conference of Catholic Bishops, [Cardinal Luis] Ladaria also insisted: such a policy cannot usurp the authority of an individual bishop in his diocese on the matter; the policy would require near unanimity; and it would be "misleading" to present abortion and euthanasia as "the only grave matters of Catholic moral and social teaching that demand the fullest level of accountability on the part of Catholics."

The letter, dated May 7 and obtained by Catholic News Service in Rome, said it was in response to a letter from Gomez informing the doctrinal congregation that the bishops were preparing to address the situation of Catholic politicians and "the worthiness to receive holy Communion."...

HHS Says Affordable Care Act Bars LGBTQ Discrimination In Health Care

The U.S. Department of Health and Human Services announced yesterday that its Office for Civil Rights will interpret the Affordable Care Act's anti-discrimination provisions as including discrimination on the basis of sexual orientation or gender identity. It said that this change from Trump Administration rules was made in light of the Supreme Court's recent Bostock decision. HHS also added that in enforcing these provisions, it will comply with the Religious Freedom Restoration Act and applicable court orders.

Church Sues Over Massachusetts COVID Regulations

Suit was filed yesterday in a Massachusetts federal district court by a church challenging the state's COVID-19 reopening regulations. The complaint (full text) in New Life South Coast Church v. Baker, (D MA, filed 5/10/2021), alleges in part:

Massachusetts’ phased COVID-19 reopening regulations, both as drafted by the Commonwealth and as implemented by the City, single out places of worship for differential and disfavored treatment. Under those regulations, restaurants, theaters, public transit, and other places of public gathering have limited or no restrictions on capacity, beyond the practical constraints of social distancing, while places of worship must follow more burdensome capacity restrictions. In addition, the regulations single out places of worship for special disfavor by barring “communal gatherings” before and after the religious service—a restriction that applies to no other institution or activity, and that purports to regulate how Massachusetts citizens may exercise religion.

First Liberty issued a press release announcing the filing of the lawsuit. 

Monday, May 10, 2021

Archdiocese Sues For in-Person Access To Inmates

The Catholic Archdiocese of Milwaukee last week filed suit in state court against the Wisconsin Department of Corrections challenging its continued ban on volunteer clergy visiting prison inmates during the COVD crisis. The complaint (full text) in Archdiocese of Milwaukee v. Wisconsin Department of Corrections, (WI Cir. Ct., filed 6/7/2021),  alleges that the policy violates statutory provisions in Wisconsin on clergy access to prisons as well as the state constitution's protection of religious liberty. Wisconsin Institute for Law and Liberty issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

From SSRN:

UPDATE: The April 2021 issue of Journal of Law and Religion has recently been published. It includes a Symposium on Law, Religion, and Same-Sex Relations in Africa.

Sunday, May 09, 2021

Indiana Trial Court Dismisses Catholic School Teacher's Suit Against Archdiocese

As previously reported, in May 2020 in Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., an Indiana trial court refused to dismiss a lawsuit against the Catholic Archdiocese brought by a Catholic high school teacher who the Archdiocese ordered fired after he entered a same-sex marriage. In July 2020, the U.S. Supreme Court broadly interpreted the "ministerial exception" doctrine as it applies to teachers in religiously affiliated schools. Subsequently, in State of Indiana ex rel. Roman Catholic Archdiocese of Indianapolis, Inc. v. Marion Superior Court, (IN Sup. Ct., Dec. 10, 2020), the Indiana Supreme Court denied a writ of mandamus and prohibition and remanded the case to a different trial court judge "to consider new and pending issues and reconsider previous orders in the case."  Now, in Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc.,  (IN Super. Ct., May 7, 2021), the trial court dismissed the case for failure to state a claim on which relief can be granted. Legal Reader reports on the case.

11th Circuit: Juror Who Heard From Holy Spirit Should Not Have Been Removed

In United States v. Brown, (11th Cir., May 6, 2021), the U.S. 11th Circuit Court of Appeals, sitting en banc, by a vote of 7-4 held that a district court judge abused his discretion in replacing a juror with an alternate in the trial of a former Florida Congresswoman who was convicted on most of the fraud, ethics and tax violation charges against her. The majority summarized:

This appeal requires us to decide whether a district judge abused his discretion by removing a juror who expressed, after the start of deliberations, that the Holy Spirit told him that the defendant, Corrine Brown, was not guilty on all charges. The juror also repeatedly assured the district judge that he was following the jury instructions and basing his decision on the evidence admitted at trial, and the district judge found him to be sincere and credible. But the district judge concluded that the juror’s statements about receiving divine guidance were categorically disqualifying. Because the record establishes a substantial possibility that the juror was rendering proper jury service, the district judge abused his discretion by dismissing the juror. The removal violated Brown’s right under the Sixth Amendment to a unanimous jury verdict. We vacate Brown’s convictions and sentence and remand for a new trial. 

Two concurring and two dissenting opinions were also filed. Judge Rosenbaum's dissent, joined by Judge Wilson and Martin, said in part:

Every judge of this Court agrees on this much: the same rule governs dismissal of both the juror who says his religious authority told him the defendant is not guilty on all charges and the one who says his religious authority told him the defendant is guilty on all charges. So let’s be clear about what we’re really doing today: we are holding that a district judge is powerless to dismiss a juror who, on a record like this one, says the Holy Spirit told him the defendant is guilty on all charges and he trusts the Holy Spirit—even though the judge finds after investigation that the juror is not capable of basing his guilty verdict on the evidence but instead will base his verdict on what he perceives to be a divine revelation.

A 3-judge panel of the 11th Circuit had affirmed the district court's decision. (See prior posting.) Politico reports on the en banc decision. 

Friday, May 07, 2021

Yesterday Was National Day of Prayer

A federal statute, 36 USC 169h, provides:

The President shall set aside and proclaim the first Thursday in May in each year as a National Day of Prayer, on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

Yesterday was the first Thursday in May, and earlier this week President Biden issued a Proclamation (full text) announcing the day. It reads in part:

Today, we remember and celebrate the role that the healing balm of prayer can play in our lives and in the life of our Nation.  As we continue to confront the crises and challenges of our time — from a deadly pandemic, to the loss of lives and livelihoods in its wake, to a reckoning on racial justice, to the existential threat of climate change — Americans of faith can call upon the power of prayer to provide hope and uplift us for the work ahead.

UPDATE: The President's Proclamation has created some controversy. A Liberty Counsel press release says in part:

For the first time in 70 years, there was not a public prayer gathering at the U.S. Capitol Building yesterday during The National Day of Prayer, and Joe Biden made no mention of God in his proclamation.

Eviction of Church Did Not Violate RLUIPA

In Schworck v. City of Madison, (WD WI, May 6, 2021), a Wisconsin federal district court dismissed a suit for damages brought against city officials by The Lion of Judah House of Rastafari and its founders who claim that their eviction from their leased premises violated their rights under RLUIPA, the free exercise clause, the equal protection clause and other provisions. The premises served as a homeless shelter, and a location for the church which distributed cannabis to members in exchange for donations. The lessees were never able to obtain a certificate of occupancy allowing them to operate the former retail store site as a church. The court said in part:

[N]ot only have plaintiffs failed to link to any land use regulation a substantial burden, but they have failed to submit evidence of a substantial burden on their religious practices altogether, thus defeating both plaintiffs’ RLUIPA and First Amendment claims on the merits....

In particular ... plaintiffs’ asserted substantial burden on their religious practices is the October 16, 2019, eviction from the property. Critically, they do not take the position that (1) compliance with the City’s municipal ordinances would violate their religious beliefs, (2) the costs and inconvenience of compliance posed a substantial burden, or (3) the uncontested municipal court proceedings created a substantial burden on their ability to exercise their religious beliefs....

[E]ven assuming that defendants or any City officials treated plaintiffs’ unfairly during the permitting or inspection process (and again, the evidence does not support such a finding), a reasonable trier of fact would have no basis to conclude that treatment impacted the October 16, 2019, eviction from the property on this record.

Wisconsin State Journal has more on the decision.

Court Enjoins Enforcement of NJ Township's Ordinances Aimed At Orthodox Jewish Community

In WR Property LLC v. Township of Jackson, (D NJ, May 5, 2021), a New Jersey federal district court issued a preliminary injunction against enforcement of two township ordinances which effectively prevent construction of Jewish schools in most of Jackson Township's residential zones and which interfere with constructing of eruvim  (symbolic religious boundary markings). The court concluded that plaintiffs were likely to succeed on the merits of their free exercise and equal protection claims, finding sufficient evidence that the ordinances were enacted with a discriminator purpose. Both the Department of Justice and the state of New Jersey have previously sued the township over its targeting of Orthodox Jews.

Thursday, May 06, 2021

Connecticut Supreme Court Hears Arguments In Challenge To Gym's Women's Section

The Connecticut Supreme Court heard oral arguments (audio of full arguments) in Commission on Human Rights and Opportunities v. Edge Fitness LLC, (5/5/2021). Courthouse News Service reports in detail on the oral arguments and describes the issues involved:

In the underlying case, two gyms run by Edge Fitness set aside special workout areas only for women, catering primarily to devout Muslim and Jewish women who are forbidden by their religious beliefs to exercise with men. Nobody complained to the gyms’ management, according to the gyms’ attorneys.

After the separate sections were created, however, two male gym members filed discrimination complaints with the state Commission on Human Rights and Opportunities. A hearing officer initially concluded the separate workout areas did not violate the state law, likening the areas to single-sex bathrooms and locker rooms.

Briefs in the case are available online.

Denial of Insurance Coverage For Gender Dysphoria Violates ACA

In Pritchard v. Blue Cross Blue Shield of Illinois, (WD WA, May 4, 2021), a Washington federal district court held that denying a transgender male insurance coverage for treatment of gender dysphoria violates the sex discrimination ban in the Affordable Care Act.  At issue was an exclusion in the Catholic Health Initiatives Health Plan that prevented a minor covered by his mother's health insurance from receiving an implant that delivers puberty-delaying hormones and a mastectomy.  The ACA incorporates the anti-discrimination provisions of Title IX. The court also rejected defendant's RFRA defense, concluding that RFRA only applies in suits in which the government is a party.

Wednesday, May 05, 2021

European Commission Appoints New Special Envoy For Freedom of Religion

 In-Cyprus reports today:

The European Commission has decided to appoint former crisis management and ebola coordination Commissioner Christos Stylianides, a Cypriot national, as Special Envoy for the promotion of freedom of religion or belief outside the EU, effective immediately.

According to the Commission, the Special Envoy will be attached to Vice-President Margaritis Schinas, who is in charge of leading the Commission`s dialogue with churches and religious associations or communities, and with philosophical and non-confessional organisations. Freedom of religion or belief is under attack in many parts of the world.

An ADF press release points out that the appointment comes after the position has been vacant for two years.

9th Circuit Hears Arguments On Idaho Ban Of Transgender Women In Sports

The U.S. 9th Circuit Court of Appeals on Monday heard oral arguments (video of full arguments) in Hecox v. Little, (5/4/2021).  In the case, an Idaho federal district court (full text of decision) in August 2020  held unconstitutional Idaho's law that bars transgender women from participating on women's sports teams. Yahoo News reports on the oral arguments.

Tuesday, May 04, 2021

Biden Issues Good Wishes On Orthodox Christian Easter Day

On Sunday, President Joe Biden issued a statement (full text) extending warm wishes from himself and the First Lady to their friends in the Orthodox Christian community observing Easter on that day. The statement said in part:

This is also a season of remembrance—to honor the sacrifice Jesus Christ made for the world and to stand in solidarity with all those in the Orthodox community who have been persecuted for their faith and those who remain under threat today.

Montana Makes It More Difficult To Obtain Transgender Name Change On Birth Certificates

Montana Governor Greg Gianforte recently signed Senate Bill 280 (full text) which provides in part:

The sex of a person designated on a birth certificate may be amended only if the department receives a certified copy of an order from a court with appropriate jurisdiction indicating that the sex of the person born in Montana has been changed b y surgical procedure.

Metro Weekly reports on the new law.

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.

Monday, May 03, 2021

Recent Articles of Interest

From SSRN:

From SmartCILP:

Sunday, May 02, 2021

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.

Friday, April 30, 2021

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.

Thursday, April 29, 2021

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.

Wednesday, April 28, 2021

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.

Tuesday, April 27, 2021

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.

Monday, April 26, 2021

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, Florida2021 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:

From SmartCILP:

Sunday, April 25, 2021

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.

Friday, April 23, 2021

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.

Thursday, April 22, 2021

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.

Wednesday, April 21, 2021

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.

Tuesday, April 20, 2021

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.

Monday, April 19, 2021

Recent Articles of Interest

 From SSRN:

From SSRN (Religious Law):

Saturday, April 17, 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.

Friday, April 16, 2021

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....

Thursday, April 15, 2021

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.

Wednesday, April 14, 2021

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.]