Suit Claims Mask Mandates Violate Free Exercise Rights and Establishment Clause

In a wide-ranging 128-page complaint, a woman who alleges that her medical conditions make it dangerous for her to wear a face mask filed suit in an Indiana federal district court earlier this month against 16 separate defendants challenging the legality of COVID- related mandates or recommendations to wear cloth face masks. Defendants include the CDC, the FDA, Dr. Anthony Fauci, the governor of Indiana, state and local health departments, local officials and several private businesses. Among the numerous challenges, the complaint (full text) in Reinoehl v. Centers for Disease Control and Prevention, (ND IN, filed 8/18/2021), includes these state and federal free exercise and federal Establishment Clause claims:

418. Non-medical masks have been used since ancient times in pagan religious ceremonies to ward of evil spirits and prevent illness....

421. Wearing talismans and other pagan, non-medical masks is against Plaintiff's religious beliefs.

422. Mandating everyone wear non-medical masks to prevent disease when the mask manufacturers cannot make claims they prevent disease transmission is the same as the State establishing a religion in which the Mask Deity prevents its wearers from becoming infected with disease.

423. The State cannot mandate the Plaintiff follows its religion. Plaintiff has the right to freely exercise her religion according to the dictates of her own conscience.

Friendly Atheist blog has more on the lawsuit.

Meanwhile, elsewhere in the country novel religious freedom arguments are being asserted to avoid mask mandates.  According to Fox47 News, a Mason, Michigan mother is seeking a religious exemption from a school mask requirement for her children based on a verse from 2 Corinthians, Chap. 3: "But when one turns to the Lord, the veil is removed..."

TRO Requires University Soccer Team To Grant Religious Exemptions From Vaccine Mandate

In Dahl v. Board of Trustees of Western Michigan University, (WD MI, (Aug. 31, 2021), a Michigan federal district court issued a temporary restraining order requiring the University to grant religious exemptions from its COVID vaccine requirement to four members of the women's soccer team. The university had previously denied the students' exemption requests. The 14-day TRO was issued on the basis of an ex parte motion.  The court said in part:

On the record before this Court, and understanding that WMU has not been afforded an opportunity to response, WMU’s vaccination requirement for student athletes is not justified by a compelling interest and is not narrowly tailored.... WMU has asserted that it has a compelling reason, albeit in a perfunctory manner. WMU appears to conclude that unvaccinated players pose a risk to the health of the vaccinated players.

Great Lakes Justice Center issued a press release announcing the decision, and providing links to pleadings in the case.

Washington Conversion Therapy Ban Upheld

In Tingley v. Ferguson, (WD WA, Aug. 30, 2021), a Washington federal district court dismissed First Amendment challenges by a family therapist to a Washington state statute that prohibits licensed counselors in treating minors from engaging in "conversion therapy" aimed at changing sexual orientation or gender identity. The court held that performing conversion therapy is "conduct", not speech. According to the court, the law still allows therapists to discuss the option of conversion therapy by someone else-- including someone within the exception for practitioners operating under the auspices of religious organizations. The court also rejected plaintiff's religious free exercise argument, saying in part:

[T]he object of the Conversion Law is not to infringe upon or restrict practices because of their religious motivation.... Plaintiff is free to express and exercise his religious beliefs; he is merely prohibited from engaging in a specific type of conduct while acting as a counselor.

Former Trump White House Staffers Forming New Faith-Based Initiative

Forward reports that on Thursday two former Trump-Administration White House staffers will launch the National Faith Advisory Board, a faith-based outreach initiative. Jenny Korn and Amanda Robbins Vargo, who worked in the Trump White House Office of Public Liaison, are co-founders of the new organization which is modeled on Trump's Faith and Opportunity Initiative.

Supreme Court Asked To Prevent Texas Heartbeat Abortion Ban From Taking Effect Sept. 1

Yesterday several abortion providers filed an Emergency Application (full text of Application in Whole Woman's Health v. Jackson, (US Sup. Ct., filed 8/30/2021)) with the U.S. Supreme Court seeking to prevent Texas S.B. 8 from going into effect on Sept. 1. The Texas law bans performing or inducing an abortion if the physician has detected a fetal heartbeat. This often occurs at 6 weeks of pregnancy. The law also 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. SCOTUSblog has more on the case.

FBI Releases Hate Crime Statistics For 2020

Yesterday the FBI released its report on Hate Crime Statistics 2020. According to the FBI:

There were 7,554 single-bias incidents involving 10,528 victims. A percent distribution of victims by bias type shows that 61.9% of victims were targeted because of the offenders’ race/ethnicity/ancestry bias, 20.5% were victimized because of the offenders’ sexual-orientation bias, 13.4% were targeted because of the offenders’ religious bias, 2.5% were targeted because of the offenders’ gender identity bias, 1% were victimized because of the offenders’ disability bias, and 0.7% were victimized because of the offenders’ gender bias.

There were 205 multiple-bias hate crime incidents that involved 333 victims.

In a statement, Attorney General Merrick Garland said in part:

Last year saw a 6.1% increase in hate crime reports, and in particular, hate crimes motivated by race, ethnicity and ancestry, and by gender identity. These numbers confirm what we have already seen and heard from communities, advocates and law enforcement agencies around the country. And these numbers do not account for the many hate crimes that go unreported.

CNBC reports on the data.

20 State AG's Sue Feds Over LGBTQ Anti-Discrimination Interpretations

A 20-state coalition led by Tennessee Attorney General Herbert Slattery filed suit in a Tennessee federal district court challenging interpretations of anti-discrimination laws by the Department of Education and the EEOC. In response to an Executive Order issued by President Biden, these two agencies issued interpretations protecting against discrimination on the basis of sexual orientation or gender identity. The complaint (full text) in State of  Tennessee v. U.S. Department of Education, (ED TN, filed 8/30/2021), contends in part:

[T]he Department of Education ... and Equal Employment Opportunity Commission ..., each flouting procedural requirements in their rush to overreach, issued “interpretations” of federal antidiscrimination law far beyond what the statutory text, regulatory requirements, judicial precedent, and the Constitution permit.

The relief requested by plaintiffs particularly focuses on concerns over transgender rights under Title VII and Title IX. 

Tennessee's Attorney General issued a press release announcing the filing of the lawsuit. 

Virginia Supreme Court Sides With Teacher Who Spoke Against School's Transgender Policy

In Louden County School Board v. Cross, (VA Sup. Ct., Aug. 30, 2021), the Virginia Supreme Court upheld a preliminary injunction issued by a trial court in a suit by a teacher who had been suspended because of his remarks at a school board meeting. Tanner Cross, an elementary school physical education teacher, at a school board meeting spoke in opposition to a proposed policy on transgender students which, among other things, required school staff to use a student's chosen name and gender pronouns. Cross told the board, in part:

I’m a teacher but I serve God first. And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion. It’s lying to a child. It’s abuse to a child. And it’s sinning against our God.

The Supreme Court said in part:

The only disruption the Defendants can point to is that a tiny minority of parents requested that Cross not interact with their children. However, the Defendants identify no case in which such a nominal actual or expected disturbance justified restricting speech as constitutionally valued as Cross’ nor have they attempted to explain why immediate suspension and restricted access to further Board meetings was the proportional or rational response to addressing the concerns of so few parents.

ADF issued a press release announcing the decision.

Texas Governor's Order Invalid; Catholic Charities Can Continue Work With Migrants

In United States v. State of Texas, (WD TX, Aug. 26, 2021), a Texas federal district court held unconstitutional on Supremacy Clause grounds Texas Governor Greg Abbott's Executive Order which prohibits, during the COVID pandemic, anyone except federal, state or local law enforcement officials from providing transportation to migrants who have been detained for crossing the border illegally or are subject to expulsion. The Order directs the Texas Department of Public Safety (DPS) to stop any vehicle suspected to be in violation of this Order and send it back to its point of origin if a violation is confirmed. The court concluded that enforcement of the Order would require state officials to decide whether a person has been detained for crossing the border illegally. It went on:

Because the Order authorizes DPS agents to make and act on immigration determinations, the province of federal law, it is facially invalid.

According to The Tablet, this decision allows Catholic Charities of the Rio Grande Valley and other organizations to continue their work with migrants.

UN Human Rights Official Calls For Taliban To Allow Equal Education For Women and End Child Marriage

Last week (Aug. 24), Reem Alsalem, the United Nations Special Rapporteur on violence against women, its causes and consequences, issued a lengthy statement (full text) in response to an Aug. 17 news conference by Taliban leaders in Afghanistan.  The Taliban stated that women could work and girls could go to school "as long as such activities are in accordance with Sharia law." Alsalem said in part:

According to the Quran, no one has the right to impose religion, including religious law, on anyone else (verse 2:256).  This egalitarian approach to religious authority has found expression in the rich plurality and diversity of religious understanding and schools of jurisprudence (madhahib) which we have until today. Notably, women, like men also have an equal right and responsibility to interpret Sharia. It would be important that this rich diverse heritage would be allowed to continue all over the Muslim World, including in Afghanistan....

The  principles of justice and equality between the sexes mean that women and girls are entitled to seeking and accessing education on an equal footing as men. The first verses of the Quran that were revealed to the Prophet commanded all human beings, both man and woman to "learn" (Iqra') (verses 96:1-5) and to seek knowledge (verses 16:78; 17:85, and 20:114)....

As reports have been recently resurfaced of increased forced marriages, including child marriages, it is important to underline that for a Muslim marriage contract to be valid it needs to fulfill several requirements – key being that both individuals give their free consent....

Islamic jurisprudence on this is clear: All marriages must be carried out by mature individuals who have the mental, legal, intellectual, and physical capacity to give consent. This requirement means that child marriages are by definition null and void. In essence, a forced marriage is equivalent to rape, which is an abhorrent crime that is strictly forbidden in Islamic law and considered as hiraba (unlawful societal warfare), and for which the prescribed punishments are severe.

Another Challenge To Ban On Transgender Discrimination In Health Care

Last week, the American College of Pediatricians, the Catholic Medical Association and an individual physician filed suit in a Tennessee federal district court challenging as a violation of the Religious Freedom Restoration Act, as well as of free speech and freedom of association protections, rules and interpretations of the Affordable Care Act that prohibit discrimination by medical providers on the basis of gender identity. The Obama Administration originally adopted the prohibition; the Trump Administration reversed the prohibition; and the Biden Administration returned to the discrimination ban.  In the meantime, challenges proceeded through the courts. Now, the complaint (full text) in American College of Pediatricians v. Becerra, (ED TN, filed 8/26/2021), alleges in part:

Two courts have already recognized that this mandate is illegal and enjoined it in favor of plaintiffs in those cases. Franciscan Alliance, Inc. v. Becerra...; Religious Sisters of Mercy v. Azar.... But both injunctions protect only the plaintiffs in those cases, not the plaintiffs or their members here.

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

Recent Articles of Interest

From SSRN:

• Marc Spindelman, Justice Gorsuch's Choice: From Bostock v. Clayton County to Dobbs v. Jackson Women's Health Organization, (13 ConLawNOW 11 (2021).
• Sherif Girgis, Defining "Substantial Burdens" on Religion and Other Liberties, (August 26, 2021).
• Veena Roshan Jose, Bracketing Liberty for the Public Health Cause,  (Lexgentia Law Journal of Llyod Law College 2020).
• Gregory S. Gordon, On the Early Release of the “Rwandan Goebbels”: American Free Speech Exceptionalism and the Ghost of the Nuremberg-Tokyo Commutations, (in Morten Bergsmo, Mark Klamberg, Kjersti Lohne and Christopher B. Mahony (eds.), Power in International Criminal Justice, Torkel Opsahl Academic EPublisher, Brussels, 2020).
• Kim D. Ricardo, Was Justice Ginsburg Roe-ght?: Reimagining U.S. Abortion Discourse in the Wake of Argentina’s Marea Verde, (August 15, 2021).
• Maria Marais, A Duty Perspective on the Hate Speech Prohibition in the Equality Act, (PER / PELJ 2021(24)).
• John Rice, The Road to Bostock, (FIU Law Review,  2021).

From SmartCILP:

• Brett Geier & Ann E. Blankenship-Knox, When Speech Is Your Stock in Trade: What Kennedy v. Bremerton School District Reveals about the Future of Employee Speech and Religion Jurisprudence, 42 Campbell Law Review 31-80 (2020).

Denial Of Religious Exemption From Vaccine Mandate OK'd

In Harris v. University of Massachusetts, (D MA, Aug. 27, 2021), a Massachusetts federal district court rejected student Cora Cluett's objections to the manner in which her request for a religious exemption from the school's COVID-19 vaccine requirement was handled. According to the court:

[Student Affairs Vice Chancellor DeVeau] denied her appeal, since he determined from the substance of her request that she was Roman Catholic and concluded from his research that the COVID-19 vaccine would not violate tenets of that faith.... In interpreting Cluett’s faith to be Roman Catholic, De Veau stated “[i]f this is incorrect, please let me know.”... De Veau then cited a statement from the United States Conference of Catholic Bishops that receiving the COVID-19 vaccines was “morally justified.”

The court held first that insofar as plaintiff was asserting state law claims against state officials, these are barred by the 11th Amendment because Ex parte Young only creates an exception for federal constitutional claims. As to Cluett's 1st Amendment Free Exercise claims, the court said in part:

... UMass is under no constitutional obligation to offer a religious exemption to its Vaccine Requirement. See Nikolao v. Lyon, 875 F.3d 310, 316 (6th Cir. 2017) ....  Certainly, once the university offers religious exemptions, it must not administer them in an unconstitutional way.... Here, however, Cluett has not alleged anything to suggest that Defendants have administered their religious exemption policy in a way that burdens some religions but not others, ... or that Defendants have coerced her in her religious practices....

Bishop's Suit for Indemnification Dismissed On Ecclesiastical Abstention Doctrine

In Kawimbe v. The African Methodist Episcopal Church, Inc., (ND GA, Aug. 27, 2028), a Georgia federal district court dismissed a suit by the Bishop of a church district covering part of South Africa.  The bishop's suit sought indemnification from the Church (a Pennsylvania non-profit corporation) for his successful defense before a church tribunal of charges bought against him by a minister in South Africa. The court held that the suit is not precluded by the ministerial exception doctrine because "the Church’s decision to deny Kawimbe indemnification does not implicate its right to select its ministers." The court concluded however that the suit should be dismissed under the ecclesiastical abstention doctrine, saying in part:

Under Pennsylvania law, if a representative of a non-profit corporation succeeds on the merits in an action or proceeding brought against him “by reason of” his representative status, the non-profit corporation must indemnify him...

To determine whether Kawimbe is or was a representative of the Church, the Court would be required to scrutinize “the composition of [the Church and AMEC’s] hierarchy,” including the nature of Kawimbe’s role as a bishop, which are matters of “core ecclesiastical concern.”...

[T]o determine whether the internal proceeding was brought “by reason of” Kawimbe’s role as a representative of the Church, the Court would have to consider the responsibilities and powers given to Kawimbe in his role as bishop and whether the accusations against him involved those responsibilities and powers. This inquiry would necessarily entangle the Court in matters of church governance. 

Ban On Cockfighting Does Not Violate Pastor's Free Exercise Rights

 In Plumbar v. Landry, (MD LA, Aug. 26, 2021), a Louisiana federal district court rejected a free exercise challenge to Louisiana's ban on cockfighting. Plaintiff who challenged the law was pastor of Holy Fight Ministries, a church that believes cockfighting is an essential part of its faith.  The court held that the ban is a neutral, generally applicable statute whose purpose is to prevent animal cruelty.

2nd Circuit Upholds Denial Of Preliminary Injunction Against Abortion Protesters

In New York ex rel. James v. Griepp, (2d Cir., Aug. 26, 2021), the U.S. 2nd Circuit Court of Appeals affirmed a New York federal district court's refusal to grant a preliminary injunction against anti-abortion protesters who had been clashing with volunteer clinic escorts outside a Queens medical center. The decision came after the court earlier vacated its prior opinion in the case. (See prior posting.) The 2nd Circuit now said in part:

[T]he district court concluded that the Attorney General had not demonstrated irreparable harm. Some members of this Court might have reached different conclusions, both as to the existence of violations and as to the appropriateness of a preliminary injunction. But many of the issues are close ones, and we cannot say that the district court abused its considerable discretion in denying a preliminary injunction....

Liberty Counsel issued a press release announcing the decision.

No Judgment On Pleadings In Mosque's RLUIPA Lawsuit

In Minhal Academy of Turnersville, Inc. v. Township of Washington,(D NJ, Aug. 25, 2021), a New Jersey federal district court denied plaintiffs' motion for judgment on the pleadings in a RLUIPA challenge to the Township's refusal to allow a mosque to continue to operate in a commercial condominium complex. The court said in part:

Plaintiffs allege that Defendants’ denial of a use variance has made their religious exercise inconvenient and costly, but nothing more. The Court will therefore deny Plaintiffs’ motion on this ground because they have not conclusively shown that Defendants’ denial caused them substantial hardship....

Plaintiffs are not entitled to judgment on the pleadings on their equal terms claim because the Complaint does not identify a “nonreligious assembly or institution” that received comparatively better treatment under the zoning laws at issue here....

[I]n order to establish their RLUIPA nondiscrimination claim, Plaintiffs must show that the Township treated Plaintiffs worse than non-Muslim comparator institutions because Plaintiffs are Muslim.... 

Ultimately the Court finds that Plaintiffs’ fact intensive RLUIPA nondiscrimination claim should be resolved with a complete factual record.

Suit Challenges Vaccine Mandate Without Religious Exemption

Suit was filed yesterday in a Maine federal district court on behalf of over 2000 health care workers (all filing anonymously) challenging Maine Governor Janet Mills' order that all health care workers be vaccinated against COVID-19, without any accommodation or exception for religious objections. Medical exemptions are still available.  The complaint (full text) in Jane Does 1-6 v. Mills, (D ME, filed, 8/25/2021), alleges free exercise and religious discrimination violations, saying in part:

The dispute in this case is not about what accommodations are available to Plaintiffs or whether accommodation of Plaintiffs’ sincerely held religious objections can be conditioned on compliance with certain reasonable requirements....The dispute is about whether Defendants are required to even consider a request for reasonable accommodation of Plaintiffs’ sincerely held religious beliefs....

Plaintiffs all have sincerely held religious beliefs that preclude them from accepting or receiving any of the three available COVID-19 vaccines because of the connection between the various COVID-19 vaccines and the cell lines of aborted fetuses, whether in the vaccines’ origination, production, development, testing, or other inputs....

Plaintiffs have all informed their respective employers that they are willing to wear facial coverings, submit to reasonable testing and reporting requirements, monitor symptoms, and otherwise comply with reasonable conditions that were good enough to permit them to do their jobs for the last 18 months with no questions asked.

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

Conviction and Sentence of Mother Emanuel Church Shooter Uphehld

In United States v. Roof, (4th Cir., Aug. 25, 2021), the U.S. 4th Circuit Court of Appeals, in a 149-page opinion, affirmed the hate crime and obstructing religion convictions of Dylan Roof who shot and killed nine members of Charleston, South Carolina's Mother Emanuel Church who were attending a Bible study group. Roof's attorneys raised 19 separate issues on appeal. The court concluded that proof of religious hostility is not required for a conviction under the religious obstruction statute, 18 USC § 247(a)(2). It also concluded that Congress did not exceed its powers under the 13th Amendment when it enacted the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 18 U.S.C. § 249. The court also upheld the death sentence imposed, saying in part:

No cold record or careful parsing of statutes and precedents can capture the full horror of what Roof did. His crimes qualify him for the harshest penalty that a just society can impose. We have reached that conclusion not as a product of emotion but through a thorough analytical process, which we have endeavored to detail here. In this, we have followed the example of the trial judge, who managed this difficult case with skill and compassion for all concerned, including Roof himself.

ABC reports on the decision.                       

6th Circuit Upholds Michigan's Classroom Mask Mandate

In Resurrection School v. Hertel, (6th Cir., Aug. 23, 2021), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, rejected free exercise, equal protection and due process challenges to Michigan's previous COVID-19 mask order for schools.  The court affirmed the denial of a preliminary injunction sought by a Catholic elementary school. All 3 judges agreed that the case is not moot because the mask requirement might be re-imposed.  The majority, however, held:

[T]he district court ... correctly concluded that because the requirement to wear a facial covering applied to students in grades K–5 at both religious and non-religious schools, it was neutral and of general applicability.

Judge Siler filed an opinion dissenting in part. Detroit News, reporting on the decision, says that the school will seek en banc review.

Suit Says Social Worker Sexually Assaulted Children At Jewish Social Service Agency

A suit was filed one day before the expiration of the two-year look-back period under New York's Child Victims Act by two anonymous plaintiffs against a clinical social worker and several Jewish organizations. (Full text of 75-page complaint in Doe v. Klar, (NY County Sup. Ct., filed 8/13/2021)).  The Forward describes the lawsuit:

A rabbi sexually assaulted children while he was supposed to be treating them for mental health issues, and the prominent Jewish institutions he worked for covered it up, claims a lawsuit filed in New York August 13.

Rabbi Yaakov David Klar allegedly carried out his abuse while he was a social worker at Chai Lifeline, a national Jewish social services provider, and as a teacher at the Pupa Cheder in Monsey, N.Y....

Klar allegedly began years of abuse of the plaintiff in 2002, when the lawsuit alleges the defendants already knew or should have known of the rabbi’s predatory history....

Only later did they enter a “secret arrangement” to allow Klar to leave quietly — and they never reported his suspected actions to the authorities, according to the lawsuit.

Recent Articles of Interest

From SSRN:

• Helen M. Alvare, Church Autonomy after Our Lady of Guadalupe School: Too Broad? Or as Broad as it Needs to Be?, (Texas Review of Law & Politics, Vol. 25, pp. 319-375, 2021).
• Richard Osborne, A Country Divided: Refining the Ministerial Exception to Balance America’s Diversity, (March 1, 2021).
• L. Joe Dunman, Religion in the Law: An Open Access Casebook, (1st Ed., August 11, 2021).
• William Smiley, The Other Muslim Bans: State Legislation Against "Islamic Law", (Journal of Islamic Law, Vol. 1, No. 1, 2020).
• Ian Murray, Donor Advised Funds: What Can North America Learn from the Australian Approach?, ((2020) 6 Canadian Journal of Comparative and Contemporary Law 260).
• Tobias Scheunchen, Lost in Translation: Mahr-Agreements, US Courts, and the Predicament of Muslim Women, (Journal of Islamic Law, Vol. 2, No. 1, 2021).

From SSRN (Non-U.S. Law):

• Mohd Rameez Raza & Raj Shekhar, The Hagia Sophia Decision: Does It Stand the Test of 'Rule of Law'?, (Oxford Political Review 2020).
• Sohaira Siddiqui, Triple Divorce and the Political Context of Islamic Law in India, (Journal of Islamic Law, Vol. 2, No. 1, 2021).
• Suman Acharya, Religious Philosophy: Islamic Legal System, (July 22, 2021).
• Shailendra Kumar & Sanghamitra Choudhury, Decoding the Elements of Human Rights from the Verses of Ancient Vedic Literature and Dharmaśāstras: An Exegetical Study, (Literature 2021).
• Hamidin Hamidin & Alfitri Alfitri, Safeguarding Women’s Constitutional Rights in the Judicial Reviews of Marriage Law on the Minimum Married Age Limit, (Mazahib Jurnal Pemikiran Hukum Islam 20, no. 1 (2021): 103-142).
• Mohd Rameez Raza & Shereen Abdin, The Law of Blasphemy vis-a-vis the Modern World: Violation of Freedom of Speech and Expression, (Manupatra 2020).
• Mohd Rameez Raza & Raj Shekhar, Sexual Minorities ‘The Invisibles’: Social Morality vs Constitutional Morality,  (International Conference on Contemporary Issues in Indian Legal System 2020, Geeta Law Institute).
• Shahabuddin Shahab, The Effect of Forgiveness in Crime on Body Parts or Organs in the Jurisprudence of Islamic Religions, (International Journal of Advanced Studies of Scientific Research, Vol. 8, No. 1, 2021).
• Shahbaz Akhtar, Nature of Islamic Law, (July 18, 2021).

From SmartCILP and elsewhere:

• Harvard Journal of Islamic Law, Vol. 2, No. 1 (Spring 2021) (includes Roundtable on Islamic Law & Legal History).
• Symposium: Is This a Christian Nation?, Roger Williams Law Review, Vol. 26, No. 2 (Spring 2021).
• Mark Weston Janis, Connecticut 1818: From Theocracy to Toleration, 52 Connecticut Law Review 1701-1710 (2021).
• Victor I. Vieth & Pete Singer, Wounded Souls: The Need for Child Protection Professionals and Faith Leaders to Recognize and Respond to the Spiritual Impact of Child Abuse, 45 Mitchell Hamline Law Review 1213-1234 (2019).

School Board Cannot Remove Teacher's Suit To Federal Court

In Vlaming v. West Point School Board, (4th Cir., Aug. 20, 2021), the U.S. 4th Circuit Court of Appeals held that a school board defendant cannot remove a former teacher's suit against it to federal court.  The teacher filed suit in a Virginia state court after being fired for refusing to call a transgender student by pronouns consistent with the student's gender identity. The teacher asserted only state law claims. At issue in the case were two federal statutory provisions on removal of cases to federal court. As to one of those provisions, the court's majority opinion said in part:

28 U.S.C. § 1443, the civil rights removal statute ... provides for removal of a civil action ... commenced in state court “[f]or any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.” The Board argues ... they either fired Vlaming in order to comply with Title IX, or they refused to permit Vlaming to discriminate, or to grant him an exception to their policies because of his religious beliefs, on the grounds that doing so would be inconsistent with Title IX. Precedent, however, precludes Title IX from being the type of “law providing for equal rights” referenced in § 1443(2).

The Supreme Court has limited the meaning of a “law providing for equal rights” in § 1443 to only those concerning racial equality....

Judge Floyd filed a concurring opinion, disagreeing in part with the reasoning of the majority. [Post revised to reflect concurring opinion.]

Illinois Appeals Court Upholds $220,000 Damage Award For Denying Transgender Employee Correct Restroom Access

In Hobby Lobby Stores, Inc. v. Sommerville, (IL App., Aug. 13, 2021), an Illinois state appellate court upheld the Illinois Human Rights Commission's award of $220,000 in damages against Hobby Lobby for violating the Illinois Human Rights Act by refusing to allow a transgender woman employee to use the woman's restroom. The court said in part:

Hobby Lobby argues that the Commission misunderstood the Act, improperly conflating “sex” with “sexual orientation.” Specifically, it argues that it limited access to its bathrooms based on sex, not gender identity, and that the Act permitted it to do so. It also argues that “sex” means “reproductive organs and structures,” and thus Sommerville (who has not had a surgical vaginoplasty or labiaplasty) is of the male sex...

Hobby Lobby contends that an individual's “sex”—the status of being male or female—is an immutable condition. However, the plain language of the Act does not support this conception. There is simply no basis in the Act for treating the “status” of being male or female as eternally fixed....

[T]he record establishes that Sommerville's sex is unquestionably female. She has undergone years of effort and expense to transition, and she appears to be and comports herself as a woman. Of even greater significance, her status of being female has been recognized not only by the governments of this state and the nation but also by Hobby Lobby itself, all of which have changed their records to acknowledge her female sex....

Reason reports on the decision.

Religious Objections To Medical College's COVID Vaccination Requirement Upheld

In Magliulo v. Edward Via College of Osteopathic Medicine, ((WD LA, Aug. 17, 2021), a Louisiana federal district court issued a temporary restraining order barring a medical college from conditioning plaintiff students' enrollment on their receiving a COVID-19 vaccination. The students had requested an exemption from the college's requirements for religious reasons-- they believed the vaccine was derived from aborted fetal tissue. The college would grant the exemption only if the objecting students complied with extensive restrictions. The court held that Louisiana statutes allow students to assert religious or philosophical objections to the vaccine requirement. It also concluded that the refusal to exempt religious objectors violates the free exercise clause of the Louisiana constitution and the Louisiana Preservation of Religious Freedom Act.  The Louisiana Attorney General had backed the students' position in the case, and the AG's Office issued a press release discussing the decision.

Expedited Asylum Procedures Proposed By DOJ and DHS

The Department of Homeland Security and the Department of Justice announced yesterday that they are publishing a 140-page Notice of Proposed Rulemaking (NPRM) (full text) to expedite handling of asylum claims for individuals encountered at or near the border. Asylum may be granted to a noncitizen who shows past, or a well-founded fear of future, persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The NPRM summarizes the proposed changes:

Under the proposed rule, such individuals could have their claims for asylum, withholding of removal ...  or protection under ... the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ... initially adjudicated by an asylum officer within U.S. Citizenship and Immigration Services.... [I]ndividuals who are denied protection would be able to seek prompt, de novo review with an immigration judge....

5th Circuit En Banc Upholds Texas "Dismemberment Abortion" Ban

In Whole Woman's Health v. Paxton, (5th Cir., Aug. 18, 2021), the U.S. 5th Circuit Court of Appeals, sitting en banc, by a vote of 9-5 (with 3 judges recused), upheld a Texas law enacted in 2017 that bans abortions performed through the standard dilation and evacuation procedure-- a procedure that the Texas law terms "dismemberment abortions." The majority opinion joined by 7 of the 9 judges said in part:

SB8 refers to the prohibited method as "live dismemberment" because doctors use forceps to separate, terminate, and remove the fetus. SB8 requires doctors to use alternative fetal-death methods. The district court declared SB8 facially unconstitutional. It held that SB8 imposes an undue burden on a large fraction of women, primarily because it determined that SB8 amounted to a ban on all D&E abortions.... Instead, the record shows that doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use.....

The safety, efficacy, and availability of suction to achieve fetal death during abortions in weeks 15 and 16 combined with the safety, efficacy, and availability of digoxin to do the same in weeks 18–22 mean that the plaintiffs have utterly failed to carry their heavy burden of showing that SB8 imposes an undue burden on a large fraction of women in the relevant circumstances.

Chief Judge Owen and Judge Ho each filed a concurring opinion. Judge Dennis filed a dissenting opinion that was joined by Judges Stewart and Graves, saying in part:

Today, in a Sisyphean return to form, our court upholds a Texas law that, under the guise of regulation, makes it a felony to perform the most common and safe abortion procedure employed during the second trimester. In an opinion that fortunately lacks fully binding precedential effect, the en banc plurality disregards the two major lessons of June Medical. First, it ignores on-point Supreme Court precedent in multiple ways....  [T]he Supreme Court has already decided this exact case, holding that a Nebraska law was unconstitutional because it could be interpreted to be the sort of ban that the Texas statute openly embodies.... Second, ... the en banc plurality fails to defer to the district court’s well-reasoned and well-supported factual findings regarding the burdens and benefits associated with the Texas law... 

Judge Higginson filed a separate dissenting opinion, joined by Judge Costa. Texas Tribune reports on the decision.

Challenge To Superseded COVID Order Dismissed As Moot

In Solid Rock Baptist Church v. Murphy, (D NJ, Aug. 16, 2021), a New Jersey federal district court dismissed as moot a challenge to a now superseded COVID-19 executive order by the governor of New Jersey limiting the number of people who could attend an indoor religious service. The court also held it will abstain under the Younger doctrine.

Amended Complaint Allowed In Suit Over Transcendental Meditation In Schools

In Separation of Hinduism From Our Schools v. Chicago Public Schools, (ND IL, Aug. 17, 2021), an Illinois federal district court granted in part plaintiffs' motion to amend their complaint in a suit challenging Chicago Public Schools' "Quiet Time" program which was led by a Transcendental Meditation instructor. In a previous opinion, the court dismissed claims against a private foundation and the University of Chicago which helped implement the program. (See prior posting.) Now the court holds that plaintiffs have sufficiently alleged that the private foundation and the University were joint participants with the state to be state actors who can violate constitutional rights. However the court accepts the University's defense that its participation was not part of an official policy or custom-- a necessary component of liability under 42 USC §1983. The court also held that the complaint adequately states claims against the University, the foundation and the public schools under the Illinois Religious Freedom Restoration Act.

Court Sorts Out Standing Issues And Substantive Challenges To Vermont Town Tuition Program

In Valente v. French, (D VT, Aug. 16, 2021), students and their parents sued various school agencies and districts challenging their policy of refusing to pay tuition to religious schools under Vermont's Town Tuition Program. Under that program, school districts that do not operate their own high schools pay tuition for students to attend other schools. However, sectarian schools are excluded unless there are adequate safeguards against the use of the tuition funds for religious worship. The court held that plaintiffs have standing to sue various state agencies, having alleged that they have not taken appropriate steps to prevent school districts from discriminating against religion in the Town Tuition Program. However the court found no standing to sue supervisory unions made up of local school boards which have no responsibility for the tuition payments.

The court went on to hold that plaintiffs have adequately alleged an equal protection claim and (except for one plaintiff) a free exercise claim against the state defendants, but have not adequately alleged an Establishment Clause or substantive due process claim. Eleventh Amendment defenses were also rejected.

In a companion case, A.H. v. French, (D VT, Aug. 16, 2021), students, parents and the Catholic Diocese sue challenging the refusal to allow Rice Memorial High School, a Catholic high school, to participate in the Town Tuition Program. The court held that the parents have standing to sue the state Agency of Education and its secretary, saying that plaintiffs allege these defendants set policy and directed school districts to exclude religious schools and their students. It also rejected 11th Amendment defenses by the head of the Agency. However the court held that the Diocese of Burlington lacks standing to assert the interests of parents who wish to send their children to Rice.

Suit Challenges Arizona's New Abortion Law

Suit was filed in an Arizona federal district court yesterday challenging two provisions in an abortion law enacted earlier this year. At issue are (1) a provision (the Reason Ban) which bans abortion whenever the providing physician knows that the abortion is due to “a genetic abnormality” and (2) a provision (the Personhood Provision) which requires Arizona laws to be interpreted to give all fertilized eggs, embryos, and fetuses the same rights as other persons. The complaint (full text) in Isaacson v. Brnovich, (D AZ, filed 8/17/2021), alleges in part:

Any reading of [the Reason] ban violates the Due Process Clause of the Fourteenth Amendment and decades of binding precedent confirming that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”...

Because the Personhood Provision fails to provide adequate notice of prohibited conduct and invites arbitrary and discriminatory enforcement..., it is unconstitutionally vague.

The complaint also alleges that the accomplice liability provisions infringe on physicians' speech rights. Center for Reproductive rights issued a press release announcing the filing of the lawsuit.

New York Child Victims Look-Back Period Ends

As reported by the New York City Patch, the two-year look-back period that allowed otherwise untimely suits to be filed under New York's Child Victims Act expired last Friday, Aug. 13. As of Aug. 9, some 9,241 cases had been filed during the look-back window. (Child USA Report).

Recent Articles of Interest

From SSRN:

• Cameron M. Fathauer, Freed Unto Liberty: A Call to Re-Treasure American Liberty, (February 4, 2020).
• Hershey H. Friedman, The Talmudic Principle of Going Beyond the Requirements of the Law: The Cornerstone of Ethics, (July 13, 2021).
• Nadia N. Sawicki, Tort Law Implications of Compelled Physician Speech, (Indiana Law Journal, Forthcoming).
• Cameron M. Fathauer, Freed Unto Liberty: A Call to Re-Treasure American Liberty (February 4, 2020).
• Intisar A. Rabb, Islamic Legal Canons as Memes, (Journal of Islamic Law, Vol. 2, No. 1, 2021).
• Intisar A. Rabb, Methods and Meaning in Islamic Law: Introduction, (Journal of Islamic Law, Vol. 2, No. 1, 2021).
• Didin Samsudin & Fajar Kusnadi Kusumah Putra, Influence of Experiential Marketing on Customer Loyalty in Shariah-Compliant Hotel, (Journal of Indonesian Tourism, Hospitality and Recreation, 3(2), p.117-129 (2020)).

Court Allows Equal Protection Challenge To Zoning Law To Proceed

In Orthodox Jewish Coalition of Chestnut Ridge v. Village of Chestnut Ridge New York, (SD NY, Aug. 13, 2021), a New York federal district court granted plaintiff's motion to reconsider its March 31, 2021 decision that dismissed an equal protection challenge to the Village's former zoning law. The court now held that Equal Protection and state law claims by three Orthodox synagogues and three individual plaintiffs may proceed, saying in part:

Plaintiffs argue that “the Court erred in holding that [Plaintiffs] were required to allege that . . . facially discriminatory laws were enacted with a discriminatory purpose.” ... They are correct.

Mississippi Supreme Court Rejects Claims By Pastor's Former Wife Against His Church On Unusual Facts

In Woodard v. Miller, (MS Sup. Ct., Aug. 12, 2021), the Mississippi Supreme Court applied the ecclesiastical abstention doctrine in an unusual context.  Plaintiff Kim Miller married Andrew Johnson when he was a seminary student studying to be a United Methodist Church minister. Church officials encouraged Miller to give up her higher education plans to serve as a minister's wife, and told her that the church would provide for her needs. After more than 20 years of marriage, Miller filed for divorce. She took this step after Johnson confessed to her that he was gay, had contracted HIV from an extramarital affair, and had infected Miller.

Miller sued her ex-husband, the United Methodist Church Conference and a fellow-pastor asserting a variety of claims. She asserted that "had the conference and the fellow minister followed United Methodist policy and procedure, they would have discovered Johnson’s behavior and remedied it or warned Miller before she contracted HIV."

The court dismissed plaintiff's claims against the church, saying in part:

[U]nder the First Amendment, for Miller’s claim to proceed against MUMC, the claimed assumed duty cannot be religious or ecclesiastical in nature.... And we are hard-pressed to see how Miller’s claim would hold up if it were against a non-religious employer. Though Miller personally interpreted MUMC’s promise to provide for her and her family if she gave up her own career goals as both an assurance of sufficient financial remuneration and a guarantee against her husband committing adultery, such an interpretation would be considered wholly unreasonable if the promise was being made by, say, a law firm, a hospital, or a technology company. In other words, Miller interpreted the assurances of MUMC ministers as including guaranteeing the success of her marriage and family life precisely because her fiancé was going into church ministry. Thus, her claim fails because the religious nature of his employer cannot be the basis for recognizing a legal duty....

The court dismissed Miller's claim against the fellow-pastor because: "a fiduciary duty cannot arise merely from a minister-church member relationship."

Finally, the court, over the dissent of two judges allowed plaintiff to move ahead on her claims against her former husband, rejecting his defense that the claims against him were released as part of the divorce settlement. The majority held that Johnson had waived this defense.

Court Dismisses Challenge To Contraceptive Mandate Exemption for Notre Dame

In Irish 4 Reproductive Health v. U.S. Department of Health and Human Services, (ND IN, Aug. 12, 2021), an Indiana federal district court dismissed a suit challenging rules, as well as a settlement agreement, exempting Notre Dame University from the contraceptive coverage mandate of the Affordable Care Act. The court said in part:

With the Rules having been upheld by the Supreme Court, I can’t really say that the Settlement Agreement itself is causing injury to the Plaintiffs because the same result the Settlement Agreement provides Notre Dame (exempting it from the contraceptive coverage mandate) is equally provided by the Rules (the validity of which were upheld). The challenge to the Settlement Agreement “is not ripe for adjudication [because] it rests upon contingent future events that may not occur” - i.e., the speculative possibility that the exemption might be invalidated at some point in the future.

The court, relying on the Supreme Court's Little Sisters of the Poor decision and a Massachusetts federal district court case, also held that the rules creating religious exemptions from the contraceptive coverage mandate do not violate the Establishment Clause.

Fraud Claim Against Catholic Diocese Dismissed Under Ecclesiastical Abstention Doctrine

In Doe v. Roman Catholic Diocese of Dallas, (TX App, Aug. 11, 2021), a Texas state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a suit alleging that a Catholic diocese committed fraud when it failed to follow its own internal policies for responding to clergy sex-abuse claims after plaintiff reported that he had been sexually abused by a Diocesan priest. The court said in part:

[A] court would have to evaluate whether ... the Dallas Diocese implemented its policy under the canonical meanings of "minor," "sexual abuse," and "vulnerable adult." This would necessitate a secular investigation into the Dallas Diocese's understanding of those terms.... Such an inquiry would cause a court to evaluate whether the Dallas Diocese properly applied canon law and "interlineate its own views" of canonical terms....

Furthermore, in the context of a religious organization's choices in investigating and regulating its formal leaders and people ordained for religious duties, "any investigation would necessarily put to question the internal decision making of a church judicatory body."...

New Hampshire Enacts Law To Protect Churches In Future Emergencies

On Tuesday, New Hampshire Governor Chris Sununu signed HB542, the New Hampshire Religious Liberty Act (full text). The law provides in part:

[D]uring a state of emergency, the state government shall permit a religious organization to continue operating and to engage in religious services to the same or greater extent that other organizations or businesses that provide essential services that are necessary and vital to the health and welfare of the public are permitted to operate.

Under the statute, the state may still require religious organizations to comply with neutral health, safety, or occupancy requirements, but must meet a strict scrutiny test if the requirement imposes a substantial burden on a religious service.

AP reports on the new law, which takes effect in 60 days.

Ministerial Exception Requires Dismissal Of Title VII Claims By Catholic School Guidance Counselor

In Roman Catholic Archdiocese of Indianapolis, Indiana v. Roncalli High School, Inc., (SD IN, Aug. 11, 2021), an Indiana federal district court  held that the ministerial exception doctrine bars Title VII retaliation, discrimination and hostile work environment claims as well as state law claims of interference with contractual and employment relationships in a suit brought by the former Co-Director of Guidance at a private Catholic high school. The school refused to renew its contract with Lynn Starkey, who had been employed by the school for nearly forty years, after the school learned of Starkey's same-sex marriage. The court said in part:

To be sure, the court does not mean to say that divergent understandings of the religious nature of an employee's role should always be resolved in the religious employer's favor. For example, it would be difficult to credit a religious employer's claim that a custodian or school bus driver qualifies as a minister simply because the employer said so.... But this case concerns the Co-Director of Guidance ... [who] performed "vital religious duties" at Roncalli.... Employees in that position met with every student throughout the year and discussed some of the most sensitive issues in a young person's life.... Roncalli expressly entrusted Starkey with the responsibility of communicating the Catholic faith to students and fostering spiritual growth.

Becket issued a press release announcing the decision.

10th Circuit: Muslim Inmate Can Move Ahead On Claim That He Was Forced To Shave Beard

In Ashaheed v. Currington, (10th Cir., Aug. 10, 2021), the U.S. 10th Circuit Court of Appeals reversed a Colorado federal district court's dismissal of a Muslim inmate's free exercise and equal protection claims. The Colorado corrections center requires inmates to shave their beards at intake but provides an exemption for inmates who wear beards for religious reasons. Plaintiff says he repeatedly asserted this exemption, but that Defendant-- motivated by anti-Muslim animus-- forced him to shave.

The court rejected Defendant's qualified immunity defense, saying: "The constitutional violation alleged here was clear beyond debate." The court concluded in part:

Sergeant Currington’s refusal to follow the Center’s beard-shaving policy and grant Mr. Ashaheed a religious exemption, when he previously accommodated the religious needs of non-Muslims under the Center’s personal-effects policy, shows that he burdened Mr. Ashaheed’s religion in a discriminatory and nonneutral manner.

10th Circuit: Jail Chaplain Succeeds On Qualified Immunity Grounds In Suit Over Religious Diet

In Ralston v. Cannon, (10th Cir., Aug. 9, 2021), the U.S. 10th Circuit Court of Appeals held that a suit by a Messianic Jewish inmate should be dismissed on qualified immunity grounds. The suit challenged jail Chaplain Hosea Cannon's denial of plaintiff's request for a kosher diet. The court said in part:

When Mr. Cannon denied the kosher diet request, it was not clearly established that his conduct violated the Free Exercise Clause of the First Amendment. More specifically, the law was not clearly established that, even if Mr. Cannon did not act with a discriminatory purpose, his denial of a kosher diet could effect a violation of Mr. Ralston’s free-exercise rights.

Court Enjoins Requirement That Christian Doctors Perform Gender Transition Procedures And Abortions

In Franciscan Alliance, Inc. v. Becerra, (ND TX, Aug. 9, 2021), on remand from the 5th Circuit, a Texas federal district court permanently enjoined enforcing the anti-discrimination provisions of the Affordable Care Act or implementing regulations against Christian health care providers and health plans in a manner that would require them to perform or provide insurance coverage for gender-transition procedures or abortions. The court said in part:

No party disputes that the current [Affordable Care Act] Section 1557 regulatory scheme threatens to burden Christian Plaintiffs’ religious exercise ... by placing substantial pressure on Christian Plaintiffs, in the form of fines and civil liability, to perform and provide insurance coverage for gender-transition procedures and abortions....

In reaching its conclusion, the court rejected mootness and other justiciability arguments that stemmed from shifting regulations while the case wound its way through the courts. 

In Pakistan, 8-Year Old Boy Is Charged With Blaspehmy

The Guardian  today reports that in the Punjab province of Pakistan, an 8-year old Hindu boy has become the youngest person ever charged in Pakistan with blasphemy. He is accused of intentionally urinating on a carpet in a madrassa library. Last week, after he was released from custody on bail, Muslims attacked a Hindu temple in Rahim Yar Khan. The boy is now being held in protective custody by police, and his family is in hiding.

Recent Articles of Interest

From SSRN:

• Daniel Judge, Catholic Education and the Formation of Conscience, (96 Notre Dame Law Review Reflection 248 (2021).
• Kenny Mok & Eric A. Posner, Constitutional Challenges to Public Health Orders in Federal Courts during the COVID-19 Pandemic  (August 1, 2021).
• James G. Hodge, et. al., Vaccinating Urban Populations in Response to COVID-19: Legal Challenges and Options, (Fordham Urban Law Journal, Vol. 49, No. 1, 2021).

From SmartCILP:

• Mark Satta, Unclear Hostility: Supreme Court Discussions of "Hostility to Religion" from Barnette to American Legion, 68 Buffalo Law Review 641-708 (2020).
• Sergio Alberto Gramitto Ricci, Archeology, Language, and Nature of Business Corporations, 89 Mississippi Law Journal 43-84 (2019).

10th Circuit: Parolee May Move Ahead In Suit Challenging His Placement In Christian Housing

In Janny v. Gamez, (10th Cir., Aug. 6, 2021), the U.S. 10th Circuit Court of Appeals held that a parolee, who is an atheist, should be able to move ahead with his Free Exercise and Establishment Clause claims growing out of a requirement that in order to stay out of jail he stay at a Christian homeless shelter and participate in its religious programming.  The court said in part:

[W]hile the Lemon test remains a central framework for Establishment Clause challenges, it is certainly not the exclusive one.... And claims of religious coercion, like the one presented here, are among those that Lemon is ill suited to resolve. Lee [v. Weisman] teaches that a simpler, common-sense test should apply to such allegations: whether the government “coerce[d] anyone to support or participate in religion or its exercise.” ...

Mr. Janny argues that Officer Gamez’s written parole directive to abide by the Mission’s “house rules as established,”... shows the State required him to participate in the Mission’s religious programming.... These facts establish a genuine dispute as to whether the State, through Officer Gamez, acted not just to place Mr. Janny in the Mission, but to place him specifically into the Christian-based Program....

The record [also] allows Mr. Janny to reach the jury on his claim that Officer Gamez burdened his right to free exercise by allegedly presenting him with the coercive choice of obeying the Program’s religious rules or returning to jail.

The court also rejected defendants' qualified immunity defenses. 

Judge Carson dissented in part, contending that the director of the Mission should not be liable as a state actor.

ACLU issued a press release announcing the decision.

White House Announces Liaison To Jewish Community

The White House announced yesterday that Chanan Weissman will serve as the Biden-Harris Administration's liaison to the Jewish community. He served in the same role in the Obama administration.

6th Circuit En Banc Upholds Tennessee Abortion Waiting Period

In a 9-7 en banc decision in Bristol Regional Women's Center, P.C. v. Slatery, (6th Cir., Aug. 5, 2021), the U.S. 6th Circuit Court of Appeals upheld Tennessee's 48-hour waiting period for abortions. Judge Thapar's majority opinion concluded:

Tennessee’s 48-hour abortion waiting period is facially constitutional. The law is supported by a rational basis, and it is not a substantial obstacle to abortion for a large fraction of women seeking previability abortions in Tennessee. And the plaintiffs failed to present any specific evidence to sustain their as-applied challenge. We thus reverse the district court’s decision and remand for entry of judgment in Tennessee’s favor on these claims.

Two judges joined in a concurring opinion.  The primary dissenting opinion was written by Judge Moore, who said in part:

Rather than plunge into the vast pool of evidence compiled in the district court ... the majority dips a toe and recoils. Speaking vaguely of “inconveniences,”... “logistical challenges,” ... and “increased costs,”... but shirking the specifics that the district court explored in exhaustive depth, the majority improvises a sanitized account of the record free of uncomfortable realities. In whitewashing the record, the majority has crystalized what has been clear at least since it agreed to hear this case initially en banc without a principled basis: this case was dead on arrival.... An honest look at the record compels but one conclusion: a law that peddles in stigma, forces women into unnecessary and invasive surgical procedures, and forces low-income women to sacrifice basic necessities for themselves and their families in order to obtain an abortion is nothing if not an undue burden.

Judge Gibbons also filed a dissenting opinion. The Hill reports on the decision. 

DOJ Reports On 15 Years Of Hate Crime Prosecutions

Last month (July 8), the Department of Justice Bureau of Justice Statistics issued a 15-page report titled Federal Hate Crime Prosecutions, 2005–19 (full text). A press release summarizing the report said in part:

U.S. attorneys declined to prosecute 82% of suspects, prosecuted 17% and disposed of 1% for prosecution by U.S. magistrates. Insufficient evidence was the most common reason hate crime matters were declined for prosecution.

Among the 310 defendants adjudicated in U.S. district court for hate crime violations during 2005-19, more than 9 in 10 defendants (284) were convicted. About 85% (240) of those convicted of a hate crime were sentenced to prison, with an average term of over 7.5 years. About 14% (39) were sentenced to probation only, and 1% (4) received a suspended sentence. Forty percent of the convictions for hate crimes during 2005-19 occurred in federal judicial districts in six states: New York (30), California (26), Texas (19), Arkansas (15), Tennessee (13) and Pennsylvania (12).

This week, the Los Angeles Blade reported on the data.

Transgender Students Sue Over Tennessee Public School Bathroom Law

Suit was filed this week in a Tennessee federal district court challenging the Tennessee Accommodations for All Children Act. The suit was brought on behalf of two transgender students. The complaint (full text) in A.S. v. Lee, (MD TN, filed 8/3/2021) alleges that the effect of the law is to force transgender students in public schools to either use a multi-occupancy bathroom inconsistent with their gender identity or ask for a "reasonable accommodation" such as use of a single-occupancy or a teacher's restroom or changing room. Use of a multi-occupancy restroom or changing room consistent with their gender identity is not an option. The complaint charges that the law violates the equal protection clause and Title IX. CNN reports on the lawsuit.

For First Time, Orthodox Rabbi Appointed To An Australian State Supreme Court

 ABC News and Hamodia report that for the first time, an Orthodox rabbi has been appointed to a Supreme Court of a state in Australia. Rabbi Marcus Solomon takes office today as the newest justice of the Supreme Court of the state of Western Australia. Rabbi Solomon, who has particular expertise in complex commercial matters, received his law degree in 1991. In 2006 he founded Perth Yeshivah, Western Australia's first post-secondary institution of Jewish studies and Talmudic law.

Challenge To Virginia's COVID Restrictions On Worship Services Dismissed As Moot

 In Tolle v. Northam, (ED VA, July 29, 2021), a Virginia federal district court dismissed as moot a lay minister's challenge to the Virginia governor's now-terminated COVID-19 orders.  Those orders had caused plaintiff's church to stop offering public worship services and otherwise limited gatherings for religious worship.

Protective Order Did Not Violate Ex-Husband's Free Exercise Rights

 In Kaur v. Singh, (PA Super., Aug. 2, 2021), a Pennsylvania appellate court upheld a Protection From Abuse Order that excludes plaintiff's former husband from attending the Nazareth Temple on Sundays when his former wife is present. The court said in part:

[T]he Final PFA Order did not substantially burden Appellant’s right to practice his religion....The Order did not ban Appellant from practicing his religion, nor compel him to perform actions against his religion. Appellant can attend services at several other temples in the area on Sunday, attend services at Nazareth Temple every day but Sunday, and attend services at Nazareth Temple on Sunday if Ms. Kaur is not present. As the trial court explained, “[t]he record established that all of the Sikh temples in the area have essentially the same services”....

Additionally ... [s]ince Appellant’s purpose of attending the services at Nazareth Temple is to harass Ms. Kaur as opposed to practicing his religion, the Order arguably does not impact Appellant’s ability to practice his religion at all.

Supreme Court Justice Denies Church's Application For Injunction Pending Cert. Application

Yesterday, U.S. Supreme Court Justice Stephen Breyer in Calvary Chapel of Bangor v. Mills, denied  an application (full text) by a Maine church for injunctive relief pending disposition of its petition for certiorari. The church sought to prevent Maine's governor from reinstating COVID-related restrictions on worship services while exempting other activities. AP reports on the denial.

Cert. Filed In Case On Washington State's Religious Exemption From Anti-Discrimination Law

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Seattle's Union Gospel Mission v. Woods, (cert. filed 8/2/2020). In the case, Washington state's Supreme Court held that, as applied, the religious and non-profit exemption to the state's anti-discrimination law may be unconstitutional. Plaintiff in the case was denied employment as a staff attorney by a Christian legal aid program for the homeless because he was in a same-sex relationship. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

Cert. Filed In Dispute Over Ministerial Exception's Applicability To Faculty Member

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Gordon College v. DeWeese-Boyd, (cert. filed 8/2/2021). In the case, the Massachusetts Supreme Judicial Court held that the ministerial exception does not apply in a suit by an associate professor of social work at a private Christian liberal arts college who claims her promotion to full professor was denied because of her vocal opposition to the school's policies on LGBTQ individuals. The court concluded that the faculty member was not a ministerial employee. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

Supreme Court Review Sought In Dispute Over Virginia Property Tax Exemption

A petition for certorari (full text) was filed with the U.S. Supreme Court yesterday in Trustees of the New Life In Christ Church v. City of Fredericksburg, Virginia, (cert. filed 8/2/2021).  The decisions below are an unreported decision from a Virginia state trial court and a Virginia Supreme Court order refusing to grant review. The petition for review filed with the U.S. Supreme Court describes the case:

New Life In Christ Church claimed the tax exemption for a property occupied by Josh and Anacari Storms. The Church explained that the Stormses are “ministers” under the Presbyterian Church in America’s Book of Church Order because they were hired to teach and spread the faith to college students in the community. The City of Fredericksburg agreed that eligibility for the exemption turned on whether the Presbyterian Church in America considered the Stormses to be ministers, but it denied the exemption because, under its reading of the Book of Church Order, only ordained persons with specific duties are ministers of that church.

One of the issues presented is whether a civil court may substitute its own interpretation of church doctrine for that of church officials. First Liberty Institute issued a press release announcing the filing of the cert. petition.

8th Circuit: Challenge To Church Capacity Limits Dismissed On Mootness and Standing Grounds

 In Hawse v. Page, (8th Cir., July 30, 2021), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, dismissed on standing and mootness grounds challenges to St. Louis County, Missouri's now-superseded COVID-related limit on the number of persons who could attend church services. The majority said in part:

Whether or not the churches were formally closed in April 2020, the complaint is bereft of an allegation that but for the Order, the churches attended  by the appellants would have allowed groups of ten or more persons to gather in the early weeks of the pandemic.

Judge Stras filed a dissenting opinion. 

Recent Articles of Interest

 From SSRN:

• Douglas Laycock & Thomas Charles Berg, Protecting Free Exercise Under Smith and After Smith, (Cato Supreme Court Review 2020-21 (forthcoming)).
• Perry Dane, ‘My Name Is Great Among the Nations’ an Essay on David VanDrunen, Politics After Christendom: Political Theology in a Fractured World, (Journal of Law and Religion, Forthcoming).
• Robert Kahn, 'My Face, My Choice?' — Mask Mandates, Bans, and Burqas in the Covid Age, (14 New York University Journal of Law and Liberty 2 (2021)).
• Jeffrey M. Lipshaw, Between Rights and Rites: The Ironies of Crisis and Contract, (Law and Contemporary Problems, Forthcoming).
• Michael S. Paulsen, Abortion as an Instrument of Eugenics,(134 Harvard Law Review Forum 415 (2021)).
• Douglas NeJaime, Biology and Illegitimacy, (SMU Law Review, Vol. 74, No. 2, 2021).
• Tariq Javed, Indian Citizenship Act: Reality and Usage, (January 15, 2020).

Most Misrepresentation Claims Against LDS Church Dismissed; RICO Claim Survives

In Gaddy v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (D UT, July 28, 2021), a Utah federal district court dismissed most of the claims in an amended complaint by a former LDS Church member alleging that several basic teachings of the Church involve misrepresentations. The court previously dismissed plaintiff's original complaint. (See prior posting.) In passing on her amended complaint, the court said in part:

Gaddy's new factual allegations relating to the locations of events described in the Book of Mormon and the founding prophet Joseph Smith's marriages directly implicate the Church's core religious teachings.... [S]he seeks to attack the veracity of the Church's teachings about the Book of Mormon and its doctrines by challenging the accuracy of certain facts contained in the text. As this court previously explained, a plaintiff may not, for example, challenge in a court of law religious beliefs that Noah built an ark, loaded it with his family and representative animals of the world, and was thereby saved from world-engulfing floods. Neither may a plaintiff circumvent this restriction by merely attacking religious accounts concerning the locations where Noah built the ark or where the ark came to rest....

Gaddy is correct that courts are required to evaluate the sincerity of religious beliefs.... However, courts engage in this inquiry of those seeking religious accommodation or exception to a rule or law of general application ... for the purpose of ensuring the government accommodate only genuine religious beliefs that are sincerely held.

This rationale is inapplicable here because the church autonomy doctrine is not an accommodation.... Rather, it is a "fundamental right of churches to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine."

The court however did allow plaintiff to move ahead with her civil RICO claim based on alleged misrepresentations about the way in which tithed funds would be spent:

Here, Gaddy does not challenge the Church's tithing doctrine or teachings related to it.... Gaddy instead points to specific factual statements allegedly made by the Church ... concerning the Church's use of tithing funds and alleges those statements are false. The inquiry required to adjudicate this claim does not implicate religious principles of the Church or the truth of the Church's beliefs concerning the doctrine of tithing. This claim further does not require the court to determine whether the Church or its members were acting in accord with what they perceived to be the commandments of their faith. Gaddy has instead challenged secular representations....

9th Circuit: Arizona Prison Rules Did Not Substantially Burden Inmate's Religious Exercise

 In Yokois v. Ryan, (9th Cir., July 30, 2021), the U.S. 9th Circuit Court of Appeals affirmed the dismissal of an Arizona inmate's 1st Amendment and RLUIPA claims. The court said in part:

ADC’s policy requiring inmates to go through authorized vendors to purchase religious items was at most, an inconvenience, and not a substantial burden on Yokois’ ability to acquire religious items. Similarly, ... the ADC policy in question only prevented Yokois from pinning religious materials on his bulletin board while he was outside his cell and not using them. As a result, Yokois did not show that these policies so burdened his right to exercise his religion that he felt pressured to abandon his beliefs.

Dispute Over Church Vote On Hiring Pastor May Move Ahead

In Howard v. Heritage Fellowship, (VA Cir. Ct., June 30, 2021), a Virginia state trial court refused to dismiss a suit by five church members challenging the membership vote on employment of a senior pastor.  The court said in part:

... Plaintiffs bring suit in concern of whether "the Deacons Board's decision to finalize the membership roll after the results of the 2018 election was in compliance with Bylaws, Constitution and other applicable policies."... [N]one of this request requires the Court to delve into a religious thicket by reviewing religious principles of membership.... [T]here is no allegation ... of a doctrinal dispute between two factions, HFC also lacks an internal tribunal to decide conflicts.... Since HFC lacks internal tribunals to rule on such matters, civil court action is necessary to resolve this dispute.

The court also concluded that the ministerial exception doctrine does not apply, despite the fact that the dispute revolves around selection of the church's minister, saying in part:

Although the language of the ministerial exception does not explicitly state it cannot be applied to other scenarios, that silence does not mean it may extend to election issues. Here, Plaintiffs only ask for democratic, neutral principles of law to be enforced. The Court is not asked to determine whether Reverend Sullivan would make a good Pastor, or if he may stay within said position.

Biden Announces Religious Freedom and Anti-Semitism Nominations

President Biden today announced the names of four individuals who he intends to nominate to key positions involving religious affairs. Two of the nominations are for positions at the ambassadorial level:

Rashad Hussain, Nominee for Ambassador-at-Large for International Religious Freedom

Deborah Lipstadt, Nominee for Special Envoy to Monitor and Combat Anti-Semitism with the Rank of Ambassador

Two others are nominations to USCIRF: 

Khizr Khan, Appointee for Commissioner of the United States Commission on International Religious Freedom

Sharon Kleinbaum, Appointee for Commissioner of the United States Commission on International Religious Freedom

The White House announcement sets out extensive biographical facts on each nominee.

Defrocked Cardinal McCarrick Charged Criminally In Massachusetts For Sex Abuse Committed Decades Ago

 CNN Reports that a criminal complaint in a Massachusetts state trial court charges now-defrocked Cardinal Theodore McCarrick with three counts of indecent assault and battery on a person over 14 years old.  The charges grow out of abuse of a boy beginning in 1974. McCarrick becomes the highest ranking Catholic clergy member to face criminal charges for sex abuse of a minor.

11th Circuit: Exclusion of Anti-LGBT Group From Charitable Donation Program Is Upheld

In Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., (11th Cir., July 28, 2021), the U.S. 11th Circuit Court of Appeals affirmed an Alabama federal district court's dismissal of a defamation and religious discrimination suit brought by a Christian ministry and media company.  At issue is Amazon's customer-choice charitable donation program which excludes as possible beneficiaries organizations that are designated as hate groups by the Southern Poverty Law Center. Coral Ridge was listed as a hate group because of its religious beliefs opposing LGBTQ conduct. The court dismissed the defamation claim because plaintiff failed to adequately plead actual malice (i.e., knowledge of falsity or reckless disregard of the truth). The court dismissed Coral Ridge's claim of religious discrimination in violation of the public accommodation provisions of the 1964 Civil Rights Act, saying in part:

[T]he district court was correct in finding that Coral Ridge’s interpretation of Title II would violate the First Amendment by essentially forcing Amazon to donate to organizations it does not support.... 

Coral Ridge’s proposed interpretation of Title II would infringe on Amazon’s First Amendment right to engage in expressive conduct and would not further Title II’s purpose....

Courthouse News Service reports on the decision.

Catholic Hospital's Refusal To Allow Gender Dysphoria Procedure Violates ACA Discrimination Ban

In Hammons v. University of Maryland Medical System Corporation, (D MD, July 28, 2021), a transgender man challenged the refusal by University of Maryland St. Joseph Medical Center to allow his physician to perform a hysterectomy as part of his treatment for gender dysphoria. The hospital, while a subsidiary of the University of Maryland state system, adheres to Catholic religious doctrine. The court dismissed plaintiff's Establishment Clause and Equal Protection Clause claims on 11th Amendment state sovereign immunity grounds. However the court concluded that plaintiff had stated an adequate claim of sex discrimination that is prohibited by §1557 of the Affordable Care Act.

Free Exercise Challenges To Illinois COVID Orders Dismissed As Moot

In Elim Romanian Pentecostal Church v. Pritzker, (ND IL, July 26, 2021), an Illinois federal district court dismissed as moot religious freedom challenges by two churches to Illinois Governor Jay Pritzker's now-expired emergency COVID-19 orders. The court said in part:

[I]t is absolutely clear that the alleged wrongful behavior— restrictions on religion due to the COVID-19 pandemic— are not reasonably expected to recur.

Clergy Sex Abuse Case Alleges Racial Discrimination As Well

A clergy sex-abuse case with a new twist was filed this week in a Wisconsin federal district court.  As described by a press release from Nate's Mission:

This morning attorneys filed a federal civil complaint ... against the Franciscans of the Blessed Virgin Mary, headquartered in Franklin, Wisconsin, and the Diocese of Jackson in the case of former Franciscan Brother Paul West, alleging discrimination and racial disparities in the treatment of Raphael Love, a Black clergy abuse victim. The lawsuit is believed to be the first of its kind in the clergy abuse crisis alleging a pattern of racial discrimination both in the placement of known offenders and treatment of survivors.

The complaint (full text) in  Love v. Catholic Diocese of Jackson, (ED WI, filed 7/27/2021), alleges in part:

Defendants conspired ... to deceive ... Plaintiff and other African American victims to accept a nominal and unconscionable settlement when the Defendants knew that the amount was far below even the cost of the future treatment the Plaintiff's injuries ... and was designed in bad faith to take advantage of the Plaintiff's underprivileged and impoverished condition.

10th Circuit: Colorado Anti-Discrimination Law Can Apply To Wedding Website Designer

 In 303 Creative LLC v. Elenis, (10th Cir., July 26, 2021), the U.S. 10th Circuit Court of Appeals upheld the application of Colorado's Anti-Discrimination Act to a wedding website design company whose owner for religious reasons refuses to create websites that celebrate same-sex marriages. The Act bars refusing services because of a customer's sexual orientation and publishing any communication that indicates such discriminatory practices. The majority conceded that the law compelled speech and acted as a content-based restriction. However the majority found that it nevertheless was constitutional because it was narrowly tailored to further a compelling state interest.  The majority said in part:

Here, Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace....

To be clear, we, like the Dissent, do not question Appellants’ “sincere religious beliefs” or “good faith.”... Yet, we fail to see how Appellants’ sincerity or good faith should excuse them from CADA. Appellants’ intent has no bearing on whether, as a consequence, same-sex couples have limited access to goods or services....

The Communication Clause does not violate the Appellants’ Free Speech rights. As the district court correctly held, Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination....

Chief Judge Tymkovich filed a lengthy dissenting opinion. saying in part:

While everyone supports robust and vigorously enforced anti-discrimination laws, those laws need not and should not force a citizen to make a Hobson’s choice over matters of conscience. Colorado is rightfully interested in protecting certain classes of persons from arbitrary and discriminatory treatment. But what Colorado cannot do is turn the tables on Ms. Smith and single out her speech and religious beliefs for discriminatory treatment under the aegis of anti-discrimination laws.

 ADF issued a press release announcing the decision.

9th Circuit: COVID Closure of Private Schools May Have Violated Due Process Rights of Parents

In Brach v. Newsom. (9th Cir., July 23, 2021), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, rejected due process challenges to California's COVID-related closure of in-person instruction in public schools, but held that the closure of in-person instruction in private schools may have violated parents' and students' due process rights. The court said in part:

We reach a different conclusion, however, as to the State’s interference in the in-person provision of private education to the children of five of the Plaintiffs in this case. California’s forced closure of their private schools implicates a right that has long been considered fundamental under the applicable caselaw—the right of parents to control their children’s education and to choose their children’s educational forum. Because California’s ban on in-person schooling abridges a fundamental liberty of these five Plaintiffs that is protected by the Due Process Clause, that prohibition can be upheld only if it withstands strict scrutiny. Given the State closure order’s lack of narrow tailoring, we cannot say that, as a matter of law, it survives such scrutiny.

Judge Hurwitz dissented in a lengthy opinion, arguing that the case is moot and also disagreeing with the majority's substantive reasoning.

9th Circuit: Church Has Standing To Challenge Washington Abortion Coverage Mandate

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (9th Cir., July 22, 2021), the U.S. 9th Circuit Court of Appeals reversed a Washington federal district court's dismissal for lack of standing of a challenge to a Washington statute that requires health insurance plans that cover maternity care to also cover abortions. The court said in part:

The state’s argument that Cedar Park did not suffer an injury because SB 6219 did not prevent Kaiser Permanente from continuing to offer a plan that restricted abortion coverage fails because Kaiser Permanente reasonably understood the plain language of SB 6219 as precluding such restrictions, and it acted accordingly when it removed the restrictions from Cedar Park’s health plan.

The court affirmed the dismissal of the church's equal protection claim. ADF issued a press release announcing the decision.