Kristen Clark Sworn In To Head Justice Department Civil Rights Division

On Tuesday, the U.S. Senate, by a vote of 51-48, confirmed Kristen Clark as Assistant Attorney General to head the Justice Department's Civil Rights Division. She was sworn in Tuesday evening, making her the first woman, and the first Black woman, to hold this position. According to NBC News:

Her nomination was met with opposition from Republicans, who accused Clarke of antisemitism. The accusation stemmed from an incident in 1994 in which the Harvard Black Students Association, a group Clarke led at age 19, invited a professor accused of promoting antisemitic conspiracy theories to speak. Clarke defended the decision at the time in the Harvard Crimson, the school's student newspaper.

She acknowledged this past January that giving the professor a platform was a mistake, and touted her record on antisemitism in her civil rights work.

Biden Issues Greeting To Buddhists Celebrating Vesak

Yesterday President Biden issued a Statement (full text) sending warm wishes to Buddhists celebrating the festival of Vesak, saying in part:

The ceremonial lighting of a lamp, the symbol of this holiday that has been celebrated for over 2,500 years, reminds us of Buddhism’s teachings of compassion, humility, and selflessness that endure today. On this day, we also commemorate the many contributions of Buddhists in America....

Florida State Settles With Catholic Student Who Was Removed As Student Senate Head

As previously reported, last October a student court at the University of Florida concluded that the University's Student Senate violated the 1st Amendment when it removed Jack Denton, a Catholic student, from the Senate presidency. Student Senate took the action because Denton criticized Black Lives Matter, the ACLU and Reclaim the Block, saying they take views opposed to Catholic teachings. Now, the University has entered a settlement agreement (full text) with Denton under which the University has agreed to pay Denton $10,000 in damages and $1050 in back pay that he would have earned if he had remained Senate president. It will also pay Denton's attorney fees of $83,950. ADF, which represented Denton, issued a press release announcing the settlement.

Kosher Restaurant Sues Certifying Agency For Defamation

New York Post reported this week on a lawsuit filed last month in a state trial court in Nassau County, New York by a kosher restaurant against the local kosher certifying agency that the restaurant used to hire. Last July, the restaurant, Chimichurri Charcoal Chicken, as well as two other establishments, switched from Vaad Hakashrus of the Five Towns and Far Rockaway to a rival, less expensive, certifying agency called Mehadrin of the Five Towns. This led the Vaad to issue a statement, alleged to be defamatory, criticizing Chimichurri's kosher food standards and urging residents not to eat there. The restaurant's lawsuit alleges:

The existing Vaad does not want competition, is afraid of the competition, and is trying to use its power to drive them — or attempt to drive them — out of business.

Chimichurri initially attempted to resolve the dispute in a rabbinical court, but the rabbis who head the Vaad did not show up for the hearing. This led the rabbinical court to grant unusual permission for Chimichurri to sue in secular court. The Vaad's lawyer told the New York Post:

Rabbis have an obligation and a right under the First Amendment to guide their communities with respect to religious issues and this does constitute a religious issue.

The Vaad has said that it has legitimate concerns about conflicts of interest.

Street Artist Sues Vatican For Using Her Image of Christ On Postage Stamp

 AP reports on a lawsuit filed in Italy last month by a Rome street artist.  Alessia Babrow has sued the Vatican for copyright infringement for using her street art image of Christ on the Vatican's 2020 Easter postage stamp.  The image was glued onto a bridge near the Vatican:

Olivieri, the Vatican’s numismatic chief, has told an Italian journalist that he took a photo of the Christ when he saw it while riding his moped one day and decided to use the image for the Easter stamp in an apparent attempt to appeal to a new generation of stamp enthusiasts.

9th Circuit Rejects Qualified Immunity For Denying NOI Inmate Participation In Ramadan

In Obataiye-Allah v. Steward, (9th Cir., May 25, 2021), the U.S. 9th Circuit Court of Appeals vacated an Oregon federal district court's holding that prison officials were shielded from damages by qualified immunity in a Nation of Islam inmate's suit complaining that he was denied participation in Ramadan in 2018. The court said in part:

Plaintiff’s declaration established that he has a sincerely held Nation of Islam religious belief and he informed defendants that weekly prayer meetings were not required for Nation of Islam Muslims. The right to free exercise was clearly established in 2018, such that a reasonable official would have known that requiring attendance at weekly prayer meetings as a condition to participate in Ramadan, without consideration of other alternatives to establish sincerity of belief, would violate the First Amendment.

The court also vacated the district court's rejection of plaintiff's equal protection "class of one" claim. 

Building Code Is Not Zoning Law Under RLUIPA

In St. Paul’s Foundation and Shrine of Saint Nicholas the Wonder Worker, Patron of Sailors, Brewers and Repentant Thieves v. Baldacci, (D MA, May 21, 2021), a Massachusetts federal district court held that revocation of a building permit to assure compliance with the state building code is not covered by RLUIPA.  Plaintiff, a monastery, sought to renovate a building to provide a space to brew beer, a chapel and and a fellowship hall.  The court concluded that a building code is not a land use regulation or zoning law. Moreover, there was no substantial burden on religious exercise.

Georgia Anti-BDS Law Held Unconstitutional

 In Martin v. Wrigley, (ND GA, May 21, 2021), a Georgia federal district court held that Georgia's anti-Israel boycott law violates contractors' free speech rights and is unconstitutionally vague. The law requires that all state contracts contain a certification that the contractor is not engaged engaged in a boycott of Israel. It was challenged by a pro-Palestinian journalist who had been invited to speak at a conference at a state university. The court said in part:

Because the burden on speech imposed by O.C.G.A. § 50-5-85 is content based, it is subject to strict scrutiny....  Even assuming that Georgia's interest in furthering foreign policy goals regarding relations with Israel is a substantial state interest, Defendants fail to explain how Martin's advocacy of a boycott of Israel as any bearing on Georgia's ability to advance foreign policy goals with Israel. The law also is not narrowly tailored to achieve the state's purported interest....

The requirement contained in O.C.G.A. § 50-5-85 that parties seeking to contract with the state of Georgia sign a certification that they are not engaged in a boycott of Israel also is unconstitutional compelled speech.

CAIR issued a press release announcing the decision.

Canadian Supreme Court Refuses To Invalidate Archbishop's Expulsion of Church Members

In Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, (Sup Ct Canada, May 21, 2021), the Supreme Court of Canada refused to invalidate an Archbishop's expulsion of five church members. The expelled members had been critical of the Archbishop's refusal to accept a recommendation of a committee investigating a movement which some saw as heretical. The members argued that their expulsions violated principles of natural justice because they had no opportunity to hear or contest the charges against them. The court held, however, that "there is no free‑standing right to procedural fairness with respect to decisions taken by voluntary associations." The court explained its decision:

Jurisdiction to intervene in the affairs of a voluntary association depends on the existence of a legal right which the court is asked to vindicate. Here, the only viable candidate for a legal right justifying judicial intervention is contract. The finding of a contract between members of a voluntary association does not automatically follow from the existence of a written constitution and bylaws. Voluntary associations with constitutions and bylaws may be constituted by contract, but this is a determination that must be made on the basis of general contract principles, and objective intention to enter into legal relations is required. In this case, evidence of an objective intention to enter into legal relations is missing. As such, there is no contract, there is no jurisdiction, and there is no genuine issue requiring a trial.

Canadian law however does permit courts to intervene in religious decisions more readily than America courts are willing to do, as illustrated by this summary by the Court:

[W]hile purely theological issues are not justiciable ..., where a legal right is at issue, courts may need to consider questions that have a religious aspect in vindicating the legal right.... For example, courts adjudicating disputes over church property may need to consider adherence to the church’s internal rules, even where those rules are meant to give effect to religious commitments.  

Law Times reports on the decision.

Opening Of Court Sessions With Prayer Violates Establishment Clause

In Freedom From Religion Foundation, Inc. v. Mack, (SD TX, May 21, 2021), a Texas federal district court held that a program devised by a Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain violates the Establishment Clause. The court concluded that attendees are impermissibly coerced into participating in religious ritual. It said in part:

The structure of the ceremony, combined with the defendant’s attendant statements about the ceremony’s purpose, is designed to give attendees “a sense of being in the presence of something . . . holy and sacred[.]” ... The Court is of the view that the defendant violates the Establishment Clause when, before a captured audience of litigants and their counsel, he presents himself as theopneustically-inspired, enabling him to advance, through the Chaplaincy Program, God’s “larger purpose.” Such a magnanimous goal flies in the face of historical tradition, and makes a mockery of both, religion and law.

FFRF issued a press release announcing the decision. First Liberty Institute which represents defendant says that it will appeal the decision to the 5th Circuit.

Another Church Seeks Emergency Injunction Against COVID Limits From Supreme Court

Last Friday, a Maine church filed a motion with the U.S. Supreme Court seeking an injunction while its petition for certiorari is pending to prevent Maine from enforcing its COVID-19 capacity restrictions on worship services. The petition (full text) in Calvary Chapel of Bangor v. Mills, (Sup. Ct. filed 5/21/2021), says in part:

For 381 days, Respondent Governor Janet Mills ... has been imposing unconstitutional restrictions on Calvary Chapel’s religious worship services while exempting myriad other activities from similar restrictions. Every religious worship gathering of Calvary Chapel from March 2020, to the present has been and is “illegal” under the Governor’s Orders. Maine imposes the most severe restrictions in the country on churches and places of worship.

Liberty Counsel issued a press release announcing the filing of the motion. 

Iowa Supreme Court Dismisses Fiduciary and Defamation Claims Against Church and Pastors

In Koster v. Harvest Bible Chapel- Quad Cities,(IA Sup. Ct., May 21, 2021), the Iowa Supreme Court affirmed the dismissal of a suit against a church and three of its pastors by a congregant who alleged defamation and breach of fiduciary duty. The court summarized the facts:

Two members of a church went through a fractious divorce. One member alleged that the other member had abused their children, allegations that turned out to be groundless. Their pastor, however, believed the allegations and sent emails to fellow pastors, church staff, and a discipleship group. The emails repeated the allegations to some extent, while also expressing support for the member making the allegations. After the allegations were discredited, the member who had been victimized by the allegations sued the pastor and the church on several tort theories....

We find that the plaintiff’s breach of fiduciary duty claim cannot go forward because it would require consideration of the church’s doctrine and religious practices. We also find that the plaintiff’s defamation claim is subject to a qualified privilege and that plaintiff has not overcome that privilege with evidence of actual malice.

Recent Articles of Interest

 From SSRN:

• Devin Humphreys, Conspiracy, Contract, and Covenant: Redefining Conspiracy's Actus Reus Through an Analysis of Selected Biblical Agreements, (February 5, 2021).
• V. Venkatraman & Dr. Kalaivani Rajendran, Question of Women Rights: Stri Dharma on the Hindu Women’s Rights Violation in In Colonial Tamilnadu, 1926 – 1936 (May 15, 2021).
• Anujay Shrivastava & Yashowardhan Tiwari, Understanding The Misunderstood: Mapping The Scope Of A Deity’s Rights In India, (10(1) WBNUJS International Journal of Law and Policy Review 1-45 (2021)).
• Fahad Aldossary, Are the Limitations on Remedies Fair? A Comparative Study Between the US Law and Islamic Law, (May 18, 2021).
• Fatih Serkant Adiguzel & Timur Kuran, The Islamic Waqf: Instrument of Unequal Security, Worldly and Otherworldly,  Economic Research Initiatives at Duke (ERID) Working Paper No. 305 (2021).

From SmartCILP:

• Joyce A. Hughes, Muhammad Ali: The Passport Issue, (42 North Carolina Central Law Review) 167-191 (2020).

European Court Says That Bulgaria Should Have Recognized Break-Away Orthodox Churches

In a case decided last month, Bulgarian Orthodox Old Calendar Church v. Bulgaria, (ECHR, April 21, 2021), the European Court of Human Rights, in a Chamber Judgment, held that Bulgaria had violated Article 9 of the European Convention on Human Rights when it refused to register a church adhering to the Old Calendarist variant of Eastern Orthodoxy.  Bulgarian courts relied on a provision in the Religious Denominations Act of 2002 providing that persons who had seceded from a registered religious institution before the Act’s entry into force in breach of that institution’s internal rules could not use the name of that institution. The European Court said in part:

62. Requiring a religious organisation seeking registration to take on a name which is not liable to mislead believers and the general public ... can in principle be seen as a justified limitation on its right freely to choose its name.... But the names of the applicant church and of the Bulgarian Orthodox Church were not identical, the applicant church’s name being sufficiently distinguished by the words “Old Calendar”. It is well known that Old Calendarist churches, which first appeared in the 1920s, when some Eastern Orthodox churches switched from the Julian Calendar to the Revised Julian Calendar, are distinct from those Eastern Orthodox churches.... Moreover, nothing suggests that the applicant church wished to identify itself with the Bulgarian Orthodox Church....

63.  In so far as the Government argued that the overlap between the beliefs and practices of the applicant church and of the Bulgarian Orthodox Church was also a bar to the applicant church’s registration...- it should be noted that the assessment of whether or not religious beliefs are identical is not a matter for the State authorities, but for the religious communities themselves....  Pluralism, which is the basic fabric of democracy, is incompatible with State action compelling a religious community to unite under a single leadership.... 

64.  The refusal to register the applicant church was therefore not “necessary in a democratic society”. It follows that there has been a breach of Article 9 of the Convention read in the light of Article 11.

Law & Religion UK has more on the decision.

In a second case decided the same day, Independent Orthodox Church v. Bulgaria, (ECHR April 21, 2021), the same section of the European Court held that Bulgaria violated Article 9 of the Convention when it refused to recognize a new church because its name and beliefs were the same as those of the existing Bulgarian Orthodox Church. The Court commented:

[T]he State does not need to ensure that religious communities remain under a unified leadership.... Even if the creation of the applicant church was ... prompted by a division within the Bulgarian Orthodox Church, this fact does not alter that.... Nor does the fact that the Bulgarian Orthodox Church’s unity is considered of the utmost importance for its adherents and for Bulgarian society in general.

Suit Against Chicago Schools Over Transcendental Meditation Program Can Move Ahead In Part

In Separation of Hinduism from Our Schools v. Chicago Public Schools, (ND IL, May 21, 2021), plaintiffs challenged Chicago Public Schools' "Quiet Time" program which was led by a Transcendental Meditation instructor. They claim that the sessions contained elements of Hinduism in them. The court dismissed claims of some of the plaintiffs for lack of standing, and dismissed claims against the private foundation and the University of Chicago which helped implement the program. One of the plaintiffs, a former student who was required to participate in the program, was found to have standing to bring Establishment and Free Exercise clause claims as well as a claim under the Illinois Religious Freedom Restoration Act against the Chicago public schools. His father also had standing on 1st Amendment claims arising before his son's 18th birthday. The court said in part:

[E]ven if the Williamses were seeking only nominal damages, they would have standing to sue. In a case decided after the parties' briefs were submitted, the Supreme Court held that "a request for nominal damages satisfies the redressability element of standing where a plaintiff's claim is based on a completed violation of a legal right." Uzuegbunam v. Preczewski, 141 S. Ct. 792, 802 (2021).

Court Denies Injunction Against HUD's Fair Housing Act Interpretation Of Sex Discrimination

According to the Springfield News-Leader, after a 2½-hour hearing on Wednesday, a Missouri federal district court judge refused to issue a temporary restraining order or preliminary injunction against enforcement of a Department of Housing and Urban Development Directive interpreting the Fair Housing Act as barring discrimination on the basis of sexual orientation or gender identity. The challenge was brought by College of the Ozarks, a Christian college that objects to housing transgender females in women's dormitories. (See prior posting.) The judge said that enjoining HUD would not protect the school from liability in a suit by a student who alleges  discrimination.

Suit On Misrepresentations In Settling Clergy Sex Abuse Claims Is Dismissed

 In Caldwell v. Archdiocese of New York, (SD NY, May 19, 2021), individuals who released their childhood sexual abuse claims as part of the Archdiocese's ’ Independent Reconciliation and Compensation Programs brought a class action claiming misrepresentations in procuring the releases. They claimed misrepresentations regarding the fairness of the settlements, the independence of the plan administrators, as well as failure to advise claimants of the prospects for enactment of the New York Child Victims Act.  The court dismissed the claims because plaintiffs failed to plead them with particularity as required by Federal Rules of Civil Procedure, Rule 9(b).  They also failed to show a special relationship that would give rise to a duty to disclose information about the Child Victims Act and failed to show that they were induced to refrain from carrying out their own investigation.

Defamation Action By Bishop In Russian Orthodox Church Survives Motion To Dismiss

In Belya v. Metropolitan Hilarion, (SD NY, May 19, 2021), a New York federal district court refused to dismiss a defamation complaint by a leader of the Russian Orthodox Christian Church in the United States against various other Church leaders who oppose plaintiff's election as Bishop of Miami. According to the court, defendants, in a letter to the church's Synod, made various allegations:

Principally, the letter alleges that the election of Belya never actually occurred; that the results of Belya’s election were fabricated; that the communications from Hilarion to Russia were falsified, either with Hilarion’s knowledge or without; and that the letter from Archbishop Gavriil confirming that Belya had instituted the required changes of practice was likewise falsified. The Olkhovskiy Group requested, in light these allegations and additional unspecified complaints from persons in Florida, that Belya be suspended from clerical functions until the completion of a full investigation. This letter was disseminated among the members of the New York Synod, to parishes, churches, monasteries, and other institutions within ROCOR, as well as more broadly to online media outlets. 

According to Belya, after the September 3 Letter was sent, he was denied all access to Hilarion and was suspended from performing his duties as spiritual leader of his parish....

Rejecting an ecclesiastical abstention argument, the court concluded that the lawsuit "may be resolved by appealing to neutral principles of law. Plaintiff’s claim centers on Defendants’ allegations that he forged the various letters at issue that led to the confirmation of his election as Bishop of Miami."  The court went on:

Belya does not ask this Court to determine whether his election was proper or whether he should be reinstated to his role as Bishop of Miami, and the Court would not consider such a request under the doctrine of ecclesiastical abstention....

Defendants argued that the statements at issue could not be defamatory because they were merely allegations or opinions.  The court concluded, however, that at least one of the challenged statements were assertions of fact, not just allegations.

President Signs COVID-19 Hate Crimes Act

Yesterday, President Biden signed into law S.937, COVID-19 Hate Crimes Act. (full text). While the impetus for the bill was the increase in hate crimes against Asian-Americans and Pacific Islanders, the Act's provisions ramp up enforcement efforts relating to a broader group of hate crimes, including crimes committed because of the victim's religion. Among the Act's provisions are the following:

(1) Expedited review of hate crimes by the Justice Department during the next year.

(2) Justice Department must issue new guidance to states and localities on how to create online reporting of hate crimes and expand public education campaigns.

(3) Grants to states and local governments to assist in reporting of hate crimes to the National Incident-Based Reporting System.

(4) Grants for state-run Hate-Crime Hot Lines.

(5) Grants for law enforcement activities or crime reduction programs to respond to hate crimes.

(6) Justice Department must provide an annual report to Congress on the incidence of hate crimes.

(7) New provision on sentencing for hate crimes. If court imposes a term of supervised release after imprisonment, the court may order defendant to take classes or provide community service directly related to the community harmed by the defendant's offense.

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Virginia Muslim Politician Sues Over Lynching Threat

 A civil damage action for racial, religious and ethnic harassment in violation of Virginia Code § 8.01-42.1 was filed yesterday in federal district court by Qasim Rashid, a Virginia politician who is an Ahmadiyya Muslim and human rights activist.  Rashid sued Joseph Vandevere who used anonymous social media accounts to make violent threats, including the threat of lynching, against Rashid. The complaint (full text) in Rashid v. Vandevere, (ED VA, filed 5/19/2021), also alleges intentional infliction of emotional distress. In June 2020, Vandevere was sentenced in a criminal case to ten months in prison for making threats against Rashid. Muslim Advocates issued a press release announcing the filing of the lawsuit.

ISIS Supporter Pleads Guilty To Planning Ohio Synagogue Attack

The U.S. Attorney's Office for the Northern District of Ohio announced that yesterday Damon M. Joseph, aka Abdullah Ali Yusuf, pleaded guilty today to attempting to commit a hate crime by planning an ISIS-inspired attack on a synagogue in the Toledo, Ohio area. He also pleaded guilty to providing material support to ISIS and the Islamic State of Iraq. According to the Cleveland Jewish News, a preliminary plea agreement provides for a 20-year prison sentence for Joseph.

6th Circuit Rejects Free Exercise Challenge To Corporal Punishment Limitations

In Clark v. Stone, (6th Cir., May 19, 2021), the U.S. 6th Circuit Court of Appeals rejected a challenge by fundamentalist Christian parents that a child abuse investigation infringed their free exercise and due process rights. The parents believe that their religion requires them to use corporal punishment when necessary upon their children. The investigation led to a Juvenile Court order prohibiting the parents from physically disciplining their children. The court said in part:

While we can state with ease that there is a general right to use reasonable corporal punishment at home and in schools, that right is not an unlimited one. The Clarks have offered no authority that imposing corporal punishment that leaves marks is reasonable and is therefore a protected right....

... [A]lthough targeting religious beliefs is never acceptable, a generally applicable law that incidentally burdens one’s free exercise rights will typically be upheld....

Furthermore, any challenge to this regulation would likely survive strict scrutiny.... Here, the state certainly has a compelling interest in protecting children from physical abuse, and the regulation is written such that it explicitly does not prohibit corporal punishment that does not leave marks, bruises, etc. Thus, the regulation is narrowly tailored....

9th Circuit: Denial of Invocation Spot To Satanic Temple Was OK

 In The Satanic Temple, Inc. v. City of Scottsdale, (9th Cir., May 19, 2021), the U.S. 9th Circuit Court of Appeals affirmed an Arizona federal district court's dismissal of a religious discrimination suit by The Satanic Temple.  TST sued after it was not permitted to give a religious invocation at a city council meeting.  The district court concluded that the decision was based on a policy that only allowed organizations with substantial ties to the city to deliver invocations. According to the Court of Appeals:

After weighing the credibility of the witnesses, the district court properly concluded that TST had failed to prove by a preponderance of the evidence that TST’s religious beliefs were a factor, let alone a substantial motivating factor, in Biesemeyer’s decision not to approve TST to give a legislative prayer.

Friendly Atheist blog discusses the case.

County's Current COVID Restrictions Upheld

In Abundant Life Baptist Church of Lee's Summit, Missouri v. Jackson County, Missouri, (WD MO, May 17, 2021), a Missouri federal district court held that free exercise, free speech, freedom of assembly and Establishment Clause challenges to prior versions of Jackson County's COVID-19 restrictions should not be dismissed. However challenges to the current version of the restrictions were dismissed because the restrictions do not distinguish between churches and other businesses or indoor spaces.

Suspended Priest's Age Discrimination Claim Dismissed Under Ecclesiastical Abstention Doctrine

In In re Roman Catholic Diocese of El Paso, (TX App., May 17, 2021), a Texas appellate court by a vote of 2-1 held that under the ecclesiastical abstention doctrine, Texas civil courts lack jurisdiction over an age discrimination and fraud case brought by a Catholic priest against his diocese.  The suit was brought when the diocese reduced payments being made to the priest who was placed on administrative leave after criminal allegations were lodged against him. The majority said in part:

The Diocese contends in this mandamus that a civil court cannot adjudicate whether Bishop Seitz exercised his discretion to reduce Olivas’s payment of decent support in a reasonable manner without inextricably involving itself in the governance of the Catholic Church. We agree and conclude that for both of the asserted claims in this case, that the fact finder would have to judge the stated rationale of Bishop Seitz’s reduction of payments which is grounded under the church’s canon law.

Chief Justice Rodriguez dissented on several grounds. He said in part:

I believe that employment discrimination laws such as the age discrimination provision of Texas Commission on Human Rights Act ... may be constitutionally enforced against religious entity employers, provided that the employee bringing the claim is not one of the defendant’s “ministers.”...

[T]he wrinkle in this case is that while Olivas retains the title of priest, he is by the Church’s own assessment a priest in name only. Seitz admitted that Olivas does not and cannot perform any ministerial duties for the Diocese due to Olivas’ suspension of faculties.

Supreme Court Dismisses Cert. Grants On Title X Rule As HHS Considers Repeal

As previously reported, in February the U.S. Supreme Court granted certiorari in three related cases challenging a Trump Administration rule promulgated by the Department of Health and Human Services in March 2019. Among other things, the rule imposes new restrictions on abortion referrals by health care providers receiving Title X family planning funds. It effect was to cut off millions of federal dollars to Planned Parenthood. In April, however, the Biden Administration issued a proposed rule that would reverse the Trump Administration change in policy. (See prior posting.) In light of that, and the Government's assurance that it will continue to enforce the Trump Administration rules until they are changed (except in Maryland where an injunction is in force), the Supreme Court yesterday, by a vote of 6-3, dismissed the certiorari petitions. (American Medical Association v. Becerra, Docket No. 20-429, Becerra v. Mayor and City Council of Baltimore, Docket No. 20-454, Oregon v. Becerra, Docket No. 20-539, cert. dismissed 5/17/2021) (Order List.) Justices Thomas, Alito and Gorsuch would not have dismissed the petitions. SCOTUSblog reports on the Court's action.

Supreme Court Grants Review In Mississippi Abortion Ban Case

Yesterday, the U.S. Supreme Court granted review in Dobbs v. Jackson Women's Health Center, (Docket No. 19-2392, certiorari granted 5/17/2021). (Order List). In the case, the U.S. 5th Circuit Court of Appeals struck down a Mississippi statute that prohibits abortions, with limited exceptions, after 15 weeks' gestational age. The Supreme Court limited its grant of review to Question 1 presented in the petition for certiorari:

Whether all pre-viability prohibitions on elective abortions are unconstitutional.

Here is the SCOTUSblog case page with all the filings in the case. NPR reports on the Court's grant of review.

Recent Articles of Interest

From SSRN:

• Russell Powell, Spirit of the Corporation, (Seattle University Law Review, Vol. 44, No. 2, 2021).
• Amit Anand, Repression of Uyghur Muslims and The Freedom of Religious Beliefs in China, (Journal of Social Inclusion Studies (SAGE Publication), Forthcoming).
• Bidisha Das & Shivangi Banerjee, Hindu Female Intestate Succession Laws and Their Impact on Fundamental Rights of the Elderly, (May 1, 2021).
• Mark Koyama, The Institutional Foundations of Religious Freedom, (October 2020).
• Jaclyn L. Neo, Religious Freedom, (forthcoming in The Oxford Handbook of Constitutional Law in Asia).
• Johnny Davis, Conservative Betrayal, Natural Law and Legal Positivism, (May 10, 2021).
• Dr. Rifai Sulaiman Lebbe, Capital Punishments in Islamic Law, (May 11, 2021).
• Raphael Cohen-Almagor, Tolerating Racism and Hate Speech: A Critique of C.E. Baker’s 'Almost' Absolutism, (in: Sardoč M. (eds) The Palgrave Handbook of Toleration 2021. Palgrave Macmillan, Cham).
• Guiora, Amos N. Guiora, State Complicity and Religious Extremism: Failing the Vulnerable Individual, (State Complicity and Religious Extremism: Failing to Protect the Vulnerable, Afshin Elian and Paul Cliteur, eds.).

From SmartCILP:

• Mark R. Killenbeck, Pandora's Cake, 72 Arkansas Law Review 769-814 (2020).
• Jeffrey D. Jackson, Tiered Scrutiny in a Pandemic, 12 ConLawNOW 39-56 (2020).

Texas Passes Heartbeat Abortion Law With Broad Civil Enforcement Provision

Today the Texas legislature sent to Governor Greg Abbott for his signature SB8 (full text), the state's version of a "heartbeat" abortion law. Except in medical emergencies, it bans performing or inducing an abortion if the physician has detected a fetal heartbeat. Unique to the Texas law is a provision that allows any private person to bring a civil action against a physician who has violated the statute, and against anyone who knowingly aids or abets the abortion, including reimbursing the costs of an abortion through insurance, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of the statute. However, no action may be brought against the woman on whom the abortion was performed. Plaintiff may recover statutory damages of not less than $10,000 for each abortion the defendant has been involved in. Daily Beast reports on the new statute. [Thanks to Scott Mange for the lead.]

Biden Sends Greetings To Muslims Celebrating the Eid al-Fitr

 In a Facebook post yesterday, President Joe Biden said:

As the holy month of Ramadan comes to an end, Jill and I send our warmest greetings to all those celebrating Eid. May you be well throughout the year. Eid Mubarak.

Hawaii Mask Mandate Did Not Violate Protester's Free Exercise Rights

 In Denis v. Ige, (D HI, May 12, 2021), a Hawaii federal district court rejected challenges to Hawaii's COVID-19 mask requirements. Plaintiff, who was arrested at a protest for failing to wear a mask, asked for $632 million in damages.  Among other challenges, he asserts that his free exercise rights were violated:

He appears to contend that because the Mask Mandates “infringe[] upon [his] right to breathe oxygen without restriction,” which is “in violation [of his] covenant with his Creator of many names,” the Mask Mandates inhibit his religious practices.

The court concluded that plaintiff failed to allege that the mask mandate imposed a substantial burden on his practice of religion, and the mandate survives rational basis review. The court also rejected other claims, including free speech and freedom of association claims.

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.

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.

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. 

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:

• R. George Wright, Free Exercise and the Public Interest After Tandon v. Newsom, (University of Illinois Law Review, Forthcoming).
• Amel K. Abdallah, Islamic Sharia and Arbitration in GCC States: The Way Ahead, (International Review of Law, Volume 9, Regular Issue 2, 2020, p.316).
• Daniel J.H. Greenwood, Partnership, Democracy, and Self-Rule in Jewish Law, (Touro Law Review, Vol. 36, No. 959, 2021).
• Anmol Singla, Homosexuality Post Puttaswamy Judgement - A Constitutional Violation of Right to Privacy?, (April 29, 2021).
• David Orentlicher & Judit Sandor, Decisions at the End of Life,  (Forthcoming, The Oxford Handbook of Comparative Health Law edited by David Orentlicher and Tamara Hervey.)
• Alfitri Alfitri, Bureaucratizing Fatwā in Indonesia: The Council of Indonesian Ulama and Its Quasi-Legislative Power, (Ulumuna Journal of Islamic Studies, Vol. 24, No. 2, 2020, p.367-397).

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.

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. 

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.

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.

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.

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.

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.]