Texas Sues EEOC Over Interpretation of Transgender Rights

The state of Texas this week filed suit in federal district court challenging an EEOC Guidance document (full text) issued in June interpreting the application of the Supreme Court's Bostock decision to rights of transgender employees under Title VII.  The complaint (full text) in State of Texas v. EEOC, (ND TX, filed 9/20/2021), contends that the EEOC's interpretation of requirements for  usage of bathrooms, dress codes and pronoun usage misstates the law, violates the First Amendment and was adopted without following proper procedures. The Texas Attorney General's office issued a press release announcing the filing of the lawsuit.

Suit Says Trader Joe's Failed To Accommodate Religious Objection To COVID Vaccination

Suit was filed earlier this month under Title VII and California state law by a 26-year Christian employee of Trader Joe's who was fired after the company refused to adequately accommodate his religious objections to being vaccinated against COVID. Plaintiff Gregg Crawford was initially granted a religious exemption from the company's mandatory vaccination policy. However an important management meeting was limited to vaccinated employees, and the company refused to arrange an accommodation that would allow Crawford to attend in person or remotely. He was told his non-attendance would negatively affect his performance review. Shortly after Crawford complained about this and consulted an attorney, he was fired. The complaint (full text) in Crawford v. Trader Joe's Company, (CD CA, filed 9/7/2021), alleges violations of Title VII of the 1964 Civil Rights Act and of state anti-discrimination laws. KTLA News reports on the lawsuit.

Universal Life Church Can Move Ahead With Suit Over Nevada Marriage Solemnization Law

In Universal Life Church Monastery v. Clark County Nevada, (D NV, Sept. 19, 2021), a Nevada federal district court allowed the Universal Life Church (ULC) which ordains ministers online to move ahead with its equal protection challenge to the refusal of the county to allow its ministers to solemnize marriages. A law—which was in effect only during 2016-2017—required a religious organization to be incorporated, organized or established in the state in order for it to be able to certify its ministers to perform weddings. The court rejected the Church’s free exercise claims, saying in part:

[A]n entity, organization, or person has no First Amendment free exercise right to perform civil marriages….. The Court thus finds that Plaintiff ULC does not have standing to bring a First Amendment Free Exercise claim.

Similarly it rejected ULC’s free exercise claim under the state constitution, and its due process claim, saying in part:

The plain language of ... [the Nevada Constitution] is directed to the “religious profession and worship” and makes no mention of the civil law process of solemnizing marriages. Because this language does not explicitly or implicitly create a claim, there is no standing for a religious organization to bring a free exercise claim for not being included in a civil legal process.

The court also rejected ULC’s procedural due process argument. However it refused to dismiss ULC’s equal protection claim, saying in part:

ULC presented evidence that another similarly situated non-traditional church ... was able to satisfy requirements solely because its listing on the Nevada Secretary of State website contained a checkbox showing it was registered as a religious organization. Therefore, Plaintiff asserts that Defendants implemented its approval process in a discriminatory manner.... [W]hether ULC provided the requested documents ... is a genuine dispute of material fact. The Court therefore denies summary judgment as to both parties.

Christian Adoption Agency Sues To Retain Policy Of Placements Only With Married Heterosexual Families

Suit was filed last week in a New York federal district court by a Christian faith-based family services agency seeking to prevent enforcement against it of New York's anti-discrimination laws insofar as they interfere with the agency's policy of refusing to place children for adoption with unmarried or same-sex couples. The complaint (full text) in New Hope Family Services, Inc. v. James, (ND NY, filed 9/17/2021) alleges in part:

In currently ongoing litigation between New Hope and an agency of the State of New York, two federal courts have already found that efforts by the State to force New Hope to change this choice, in violation of its religious beliefs, likely violate both New Hope’s Free Speech rights and its Free Exercise rights, and the district court has already entered a preliminary injunction protecting New Hope’s right and ability to continue to operate and speak in a manner consistent with its beliefs....

[T[he pendency of a governmental investigation and allegations of violations of law quickly damage New Hope’s reputation that was built up over many decades of faithful service, and discourages hospitals, pregnancy resource centers, and social service agencies from referring birthmothers to New Hope to receive adoption services.

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

Recent Articles of Interest

 From SSRN:

• Joshua D. Sarnoff, Religious and Moral Grounds for Patent-Eligible Subject Matter Exclusions , (Patents on Life: Religious, Moral and Social Justice Aspects of Biotechnology and Intellectual Property, (Cambridge U Press, 2019).
• Jeffrey A. Redding, Rachel Taylor & Sarasu EstherThomas, Introduction: New Directions, New Voices in Family Law in India, (5 Indian Law Review (2021)).
• Conor Casey, Business as Usual? Irish Courts, the Constitution, and COVID-19, (Percorsi Constituzionali/Constitutional Paths (Forthcoming 2021)).
• Aaron Tang, The Originalist Case for an Abortion Middle Ground, (September 13, 2021).
• Kimberley Harris, Ultra-Compelled: Abortion Providers' Free Speech Rights After NIFLA, (Albany Law Review, Forthcoming).
• Seth Barrett Tillman, What Oath (if Any) Did Jacob Henry Take in 1809?: The Problem of Conceptual Confusion Between State Religious Tests and Religious Test Oaths, 62(1) American Journal of Legal History, (forthcoming circa Mar. 2022).

Muslim Women Can Move Ahead With Suit Challenging NYPD Arrest Photo Policy

In Clark v. City of New York, (SD NY, Sept. 17, 2021), a New York federal district court allowed two Muslim women to move ahead with their lawsuit under the 1st Amendment and RLUIPA challenging the New York City police department's requirement that they remove their hijab when sitting for an arrest photo. The court said in part:

Allowing an arrestee to maintain her ordinary appearance in a Booking Photograph does not undermine the legitimate interest of keeping a photographic record of arrestees... In fact, photographing the arrestee in her ordinary appearance likely furthers law enforcement’s interest in identification—rather than impeding such interest—because arrestees who have a sincere religious belief that requires them to wear a head covering are likely to be wearing that same covering when the need to identify them arises.

The court also refused to dismiss one of the plaintiff's assertion of a private right of action under the New York constitution. 

Suit Challenges California's Ethnic Studies Model Curriculum

Suit was filed earlier this month in a California state trial court challenging a portion of the state's Ethnic Studies Model Curriculum.  The complaint (full text) in Californians for Equal Rights Foundation v. State of California, (Super. Ct., filed 9/3/2021), alleges that the chair of the committee that developed the model curriculum has shown in his writings an animus toward Christianity and Catholicism, and reflects this by including in the model curriculum various prayers based on indigenous religious principles. the complaint continues:

The ... ESMC Lesson Resources section contains a prayer entitled the “In Lak Ech Affirmation” .... The Aztec Prayer invokes the names of five beings worshiped by the Aztecs as gods or demi-gods.... The names of these Aztec gods are collectively invoked 20 times.... They are honored and praised by repeatedly invoking their respective names...

The ancient Aztec religion is not a philosophy, dead mythology, historic curiosity, general outlook on life, or mere symbol. Rather, it is a recognized living faith practiced today both by descendants of the Aztecs and by others..... The fact that it is not large, institutional, or well-known does not change its status as a religion.

The complaint also contends that the curriculum also includes the Ashe Affirmation taken from Yoruba religion of Nigeria. The complaint asserts violations of the establishment clause, free exercise clause and no-aid clause of the California constitution. Religion News Service reports on the lawsuit.

Automatic Stay of Suits In Bankruptcy Prevents State Court Defamation Suit Against Diocese

In In re Roman Catholic Church of the Diocese of Santa Fe, (NM Bkruptcy., Sept. 17, 2021), a New Mexico federal bankruptcy court refused to lift the Bankruptcy Code's automatic stay of suits which the Diocese of Santa Fe enjoys while going through bankruptcy reorganization proceedings. Rudy Blea, a former lay minister in the Catholic Church, sought to bring a state court defamation action against the Diocese for wrongfully placing him on a list of "Priests, Deacons, and Religious Accused of Sexual Abuse of Children." He claims that his lay position places him outside the description of those included in the list. He also contends that a relationship he had when he was 19 with 17 year old Gary House was consensual. Subsequently Blea settled a suit against him brought by House. Now the bankruptcy court said in part:

[T]he Court finds that Blea has not carried his burden of showing that cause exists to modify the automatic stay. Blea has an uphill battle to win his defamation claim and get money damages. His chance of obtaining his desired equitable relief from this Court is vanishingly small, for the reasons outlined above. It makes no sense to allow Blea to tilt at this windmill, nor to force Debtor (and other creditors) to incur the expense of defending the charge.

The court did however hold that the Bankruptcy Court:

has jurisdiction to hear Blea’s defamation claim and award money damages if appropriate, applying neutral principles of law. It also has jurisdiction to enjoin further publication of defamatory statements, if defamation is proved. It does not have jurisdiction, however, to order that Blea be removed from the List, nor to adjudicate Blea’s challenge to Debtor’s decision that he was close enough to the church in 1970 to warrant inclusion on the List.

Arkansas Supreme Court Rejects Inmate's Complaint Over Withholding Of NOI Publications

In Muntaqim v. Payne, (AR Sup. Ct., Sept. 16, 2021), the Arkansas Supreme Court affirmed the dismissal of a suit litigated pro se by a Nation of Islam inmate who contested prison officials' withholding of multiple copies of the NOI publication Final Call for review because of racist and inflammatory content. Plaintiff also alleged that the mailroom supervisor destroyed five copies of NOI books. Responding to appellant's RLUIPA and free exercise claims, the court said in part:

The prison must permit a reasonable opportunity for an inmate to engage in religious activities but need not provide unlimited opportunities to do so. Id. Muntaqim’s claims that the appellees restricted access to some but not all NOI religious literature did not state sufficient facts that appellees placed a substantial burden on the exercise of his religious practices.

The court also rejected free speech, equal protection, due process, access to courts and Establishment Clause claims.

Satanic Temple Loses Fight Over City's Revocation Of Display Permit

In The Satanic Temple v. City of Belle Plaine, Minnesota, (D MN, Sept. 15, 2021), a Minnesota federal district court dismissed the promissory estoppel claim by The Satanic Temple (TST) growing out of Belle Plaine's rescission of a resolution allowing private groups to place displays in a city park. The city had originally created a limited public forum for private displays honoring veterans, and TST had received a permit to do so. The court said in part:

Here, as addressed, TST received the benefit of Belle Plaine’s alleged promise: TST had a limited-time opportunity, for nearly four months, to display its monument in Veterans Memorial Park. That Belle Plaine terminated TST’s permit early was both authorized by the Enacting Resolution and understood by TST as a possibility when TST applied for a permit. Any contrary expectation held by TST when relying on Belle Plaine’s alleged promise would have been unreasonable. There also is no allegation or evidence that Belle Plaine was unjustly enriched. The only money Belle Plaine received from TST was a $100 permit fee, which Belle Plaine reimbursed to TST. In addition, as addressed, the evidence reflects that TST was not financially harmed and there is no evidence of reputational harm.

The court upheld a magistrate's refusal to allow TST to belatedly amend its complaint to allege free speech, free exercise, equal protection claims and due process claims. Similar claims were previously dismissed. The court also imposed sanctions, in the form of the city's attorney's fees, against TST for maintaining a frivolous lawsuit.

6th Circuit Dismisses Suit Against Anti-Israel Picketers of Synagogue

In Gerber v. Herskovitz, (6th Cir., Sept. 15, 2021), the U.S. 6th Circuit Court of Appeals dismissed a suit by synagogue members against anti-Israel pickets who have picketed services at the Beth Israel Synagogue in Ann Arbor, Michigan every week since 2003.  The district court had dismissed the suit on standing grounds. (See prior posting.) On appeal, the majority said in part:

The district court granted the defendants’ motions to dismiss for lack of standing. We disagree on that point, as the plaintiffs have alleged a concrete and particularized harm to a legally protected interest. But the reality that they have standing to bring these claims does not entitle them to relief. The key obstacle is the robust protections that the First Amendment affords to nonviolent protests on matters of public concern. We affirm the district court’s dismissal on that basis.

Judge Clay filed a concurring opinion stating that he would have affirmed the district court's dismissal on standing grounds, saying in part:

Plaintiffs’ allegations of extreme emotional distress fail to establish standing in this case because there is no legally protected interest in not being offended by the speech of others.

Courthouse News Service reports on the decision.

Bidens Extend Yom Kippur Greetings

Today President Biden issued a statement (full text) on the Jewish holy day of Yom Kippur which begins this evening. The statement reads in part:

At its core, this sacred and solemn day reaffirms a universal principle at the essence of our humanity: that, through word and deed, we each have the ability to right wrongs, mend rifts, and heal wounds.... 

... Jill and I extend our very best wishes for an easy and meaningful fast to all who observe Yom Kippur.... May we each be sealed in the Book of Life.

DOJ Seeks TRO To Prevent Suits Under Texas "Heartbeat" Abortion Bill

After filing suit last week in a Texas federal district court to prevent the state of Texas from enforcing SB 8, Texas' "heartbeat" abortion ban that is enforced solely through private civil actions for statutory damages, the Department of Justice yesterday filed an emergency motion for a temporary restraining order or preliminary injunction. The motion and memorandum of law (full text) in United States v. State of Texas, (WD TX, filed 9/14/2021), contends in part:

[T]he Court could enjoin any person who files suit under S.B. 8 from prosecuting his or her claim. Here, an injunction against Texas can run to the individuals who file civil enforcement actions because, at a minimum, those individuals would qualify as “persons who are in active concert or participation with” the State. Fed. R. Civ. P. 65(d)(2)(C). The purpose of Rule 65 is to prevent defendants from creating schemes to evade judicial review and enforcement by ensuring that injunctive relief “not only binds the parties defendants but also those identified with them in interest, in ‘privity’ with them, represented by them or subject to their control.”

New York Times reports on the filing.

Cert. Filed In Case Of Football Coach Seeking To Pray On Field

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Kennedy v. Bremerton School District, (US Sup. Ct., cert. filed 9/14/2021). In the case, the U.S. 9th Circuit Court of Appeals upheld the firing of a high school football coach who insisted on prominently praying at the 50-yard line immediately after football games. A divided 9th Circuit denied en banc review. (See prior posting.) First Liberty issued a press release announcing the filing of the petition for review.

EEOC Suit Protecting Religious Objector To Fingerprinting Is Settled

The EEOC announced last week that Minnesota- based AscensionPoint Recovery Services has settled an EEOC religious discrimination lawsuit brought against it by agreeing to pay $65,000 in damages and implementing changes to its policies. According to the EEOC, the company fired a Christian employee who objected to being fingerprinted:

The fingerprinting requirement was prompted by a background check procedure requested by of one of the company’s clients. Shortly after the Christian employee informed APRS that having his fingerprints captured was contrary to his religious practices, APRS fired him. APRS did so without asking the client whether an exemption was available as a religious accommodation, and despite the fact that alternatives to fingerprinting were available.

TRO Issued Barring Denial of Religious Exemptions To Health Care Workers' Vaccine Mandate

 In Dr. A v. Hochul, (ND NY, Sept. 14, 2021), a New York federal district court issued a temporary restraining order barring the New York Department of Health from enforcing any requirement that employers deny religious exemptions from the Department's COVID-19 vaccine mandate. At issue is the Department's recent vaccine mandate for health care workers employed at hospitals and nursing homes. The TRO was issued one day after the suit was filed. The state has until Sept. 22 to file its objections and the court set a hearing for September 28 at which time the state will be able to present its arguments against turning the TRO into a preliminary injunction. Hudson Valley360 reports on the decision. (See prior related posting.)

Right-Wing Catholic Group Sues Over Cancellation Of Its Protest Rally

Suit was filed yesterday in a Maryland federal district court by the right-wing Catholic group Church Militant against the city of Baltimore for requiring the cancellation of Church Militant's prayer rally scheduled to be held across from the U.S. Conference of Catholic Bishops Fall General Assembly. The rally was titled "Bishops: Enough Is Enough." The complaint (full text) in St. Michael's Media, Inc. v. City of Baltimore, (D MD, filed 9/13/2021), alleges that the cancellation violates the group's free speech, free exercise, free association and Establishment Clause rights, saying in part:

The purpose of the rally is to engage in protected speech criticizing elements of the power structure of the Catholic Church in a situation where the speech would reach the Church's leadership.

Baltimore Brew reports on the lawsuit.

Suit Challenges Absence Of Religious Exemptions In New York's Vaccine Mandate For Health Care Workers

Suit was filed Friday in a New York federal district court by New York health care workers challenging the absence of religious exemptions in New York state's mandate that all health care workers be vaccinated against COVID-19. The complaint (full text) in John Doe I v. Hochul, (ED NY, filed 9/10/2021) and the accompanying motion and memorandum of law (full text) seeking a temporary restraining order and preliminary injunction allege free exercise, equal protection and Title VII violations, among others. Plaintiffs allege in part:

Plaintiffs’ sincerely held religious beliefs, rooted in the above Scriptures, preclude them from accepting any one of the three currently available COVID-19 vaccines derived from, produced or manufactured by, tested on, developed with, or otherwise connected to aborted fetal cell lines.

The suit, filed by Liberty Counsel (press release) is similar to one filed by the same organization last month against the state of Maine. (See prior posting.) Yesterday's New York Times carried a lengthy article on the growing reliance on religious objections to COVID-19 vaccinations.

UPDATE: A similar suit was filed on Monday in the Northern District of New York on behalf of health care personnel, brought by the Thomas More Society.  Dr. A. v. Hochul, (ND NY, filed 9/13/2021) (full text of complaint).

Federal Court Clears Way For Telemedicine Medication Abortions On Guam

In Raidoo v. Camacho, (D GU, Sept. 3, 2021), a Guam federal district court issued a preliminary injunction that permits Guam-licensed physicians who reside in Hawaii to remotely supply medication abortions to women on Guam through teleconference consultations with the medication delivered by mail.  According to the court:

In 2018, the last abortion physician on Guam retired, and no local doctor has stepped in to fill the vacancy....  While Plaintiffs claim there are physicians on Guam willing to provide pre- and post-abortion care, none are willing to provide abortion services directly, as “[a]nti-abortion stigma discourages even supportive local doctors from incorporating abortion services into their practice.”

The legal impediment to the proposed procedure are provisions in the Guam Public Health Code §3218.1 that require certain information to be given to the woman "in person" and "individually and in a private room." The court said in part:

Here, Defendants fail to rebut Plaintiffs’ argument that the in-person requirement serves no benefit to a legitimate state interest.... Defendants failed to offer any evidence that supports their position that in-person communication is superior to live, face-to-face video conference.

KUAM News reports on the decision. The Archbishop of Agaña, head of the Catholic Church in Guam, reacted to the decision.

Recent Articles of Interest

From SSRN:

• Devin Humphreys, Excerpts from the Model Rules of Dating Procedure, (September 5, 2021).
• Pragya Verma, Revisiting the Divide between Blasphemy and Free Speech in a Modern Secular Society, (November 26, 2020).
• James M. Oleske, Jr., The ‘Mere Civility’ of Equality Law and Compelled Speech Quandaries, (9 Oxford Journal of Law and Religion 288 (2020)).
• Arie Reich & Guy Harpz, Kosher and Halal Slaughtering Before the Court of Justice: A Case of Religious Intolerance?,   (European Public Law, January 2022 issue).
• Alexi Pfeffer-Gillet, Civil Disobedience in the Face of Texas's Abortion Ban, (September 8, 2021).
• Dalia Tsuk Mitchell, Business as Usual: Hobby Lobby and the Purpose of Corporate Rights, (Columbia Business Law Review, Vol. 2021, No. 1, 2021).
• Sherry F. Colb, Free Exercise in the Mirror, (Cornell Legal Studies Research Paper, 2021).

Oklahoma Governor Signs 9 Bills Supported By Pro-Life Movement

Oklahoma Governor Kevin Stitt, in a press release last week, announced his ceremonial signing of nine new laws supported by the pro-life movement, which were summarized as follows:

• SB 918 restores Oklahoma’s prohibition on abortion if Roe v Wade is overturned....
• HB 1102 adds the performance of an abortion under state statutes for “unprofessional conduct,” with exceptions for the life or significant physical impairment of the mother....
• HB 1904 requires abortionists to be board certified in obstetrics and gynecology....
• HB 2441 prohibits abortion once a fetal heartbeat is detected....
• SB 778 and SB 779 provide safeguards surrounding the use of abortion-inducing drugs....
• SB 960 protects relinquished children by extending the time frame they can be relinquished to rescuers from 7-30 days. It also, directs the Oklahoma State Department of Health to award grants for the child to be placed into a “Baby Box” where the newborn can be relinquished....
• SB 647 created Lily’s Law ... [which] requires birthing centers and other medical facilities to keep a written policy to allow for the family to direct the disposition of the remains of the child who was stillborn or miscarried....
• SB 584 prohibits fetal trafficking....

[Thanks to Scott Mange for the lead.]

Justice Department Sues Texas To Block Enforcement Of "Heartbeat" Abortion Ban

The Department of Justice announced yesterday that it has filed suit in a Texas federal district court to prevent the state of Texas from enforcing SB 8, Texas' "heartbeat" abortion ban that is enforced solely through private civil actions for statutory damages. The complaint (full text) in United States v. State of Texas, (WD TX, filed 9/9/2021), contends:

Texas enacted S.B. 8 in open defiance of the Constitution.... Because S.B. 8 clearly violates the Constitution, Texas adopted an unprecedented scheme “to insulate the State from responsibility”...  by making the statute harder to challenge in court....

The United States has the authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution and deprive individuals of their constitutional rights by adopting a statutory scheme designed specifically to evade traditional mechanisms of federal judicial review. The federal government therefore brings this suit directly against the State of Texas to obtain a declaration that S.B. 8 is invalid, to enjoin its enforcement, and to protect the rights that Texas has violated.

The complaint contends that state action is present, even though the statute relies on private enforcement:

[W]hile Texas has gone to unprecedented lengths to cloak its attack on constitutionally protected rights behind a nominally private cause of action, it nonetheless has compelled its judicial branch to serve an enforcer’s role. “State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms.” ...

Under the state-action doctrine, private actors also may be found to function as agents or arms of the state itself and thus are bound by the Constitution.

The complaint also alleges a more direct impact on the federal government:

S.B. 8 exposes federal personnel and grantees to liability for carrying out their federal obligations to provide access to abortion-related services to persons in the care and custody of federal agencies and interferes with federal contracts and grants with third-party providers who are obligated under their agreements to provide abortion-related services but refuse to do so to avoid liability under S.B. 8.

Attorney General Garland also delivered remarks (full text) announcing the lawsuit. Dallas Morning News has additional background and reactions.

South Dakota Governor Restricts Chemical Abortions

According to a press release from the office of South Dakota Governor Kristi Noem, on Sept. 7 the Governor signed Executive Order 2021-12 that orders state Department of Health to adopt rules to prevent telemedicine abortions and restrict chemical abortions in the state. According to the press release:

The executive order restricts telemedicine abortion in the following ways:

• Declares that abortion drugs may only be prescribed or dispensed by a physician who is licensed in South Dakota after an in-person examination;

• Blocks abortion-inducing drugs from being provided via courier, delivery, telemedicine, or mail service;

• Prevents abortion-inducing drugs from being dispensed or provided in schools or on state grounds; and

• Reiterates that licensed physicians must ensure that Informed Consent laws are properly administered.

The executive order also directs the Department of Health to do the following:

• Develop licensing requirements for “pill only” abortion clinics;

• Collect empirical data on how often chemical abortions are performed as a percentage of all abortions, including how often women experience complications that require a medical follow-up; and

• Enhance reporting requirements on emergency room complications related to chemical abortion.

After 20 Years Of Litigation, Suit On Religion In Child Placement Is Settled And Dismissed

This week, a Kentucky federal district court dismissed the remaining Establishment Clause claim in Pedreira v. Sunrise Children's Services, Inc., (WD KY, Sept. 8, 2021), after both plaintiffs and defendants filed a joint motion for voluntary dismissal with prejudice. The case, which involves a challenge to Kentucky's funding of treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization, has been in litigation for 20 years. On Sept. 9, Americans United announced that in January the parties had entered an 18-page, single-spaced Settlement Agreement (full text) which sets out in detail provisions to prevent children in child care facilities and foster home placements from having unwanted religious activities imposed and assures respect for a child's religious preference.  It also requires respect for a child's sexual orientation and gender identity. Parts of the settlement were required to be incorporated into state regulations. A previous settlement agreement had been held unenforceable. (See prior posting.)

Muslim Police Officer Can Move Ahead With Complaint On Accommodation Of Beard

In Hashmi v. City of Jersey City, (D NJ, Sept. 7, 2021), a New Jersey federal district court allowed a Sunni Muslim police officer to move ahead on some, but not all, of his challenges to a Jersey City Police Department order. The Order (later amended) required officers who wear beards for religious reasons to maintain them at no more than one-half inch in length unmanicured. Plaintiff claims this conflicts with an accommodation letter previously issued to him which requires his beard to be "neat and clean." He also claims subsequent harassment and retaliation. The court rejected plaintiff's free exercise claim, finding that the Order is neutral and generally applicable. The court also rejected plaintiff's equal protection challenge, and his Title VII religious discrimination claim. However the court permitted him to move ahead with his Title VII failure-to-accommodate claim and his Title VII and state law retaliation claims.

Court of Federal Claims Denies Motion For Reconsideration Of Church Camp's Tax Liability

In Steeves v. United States, (Fed. Cl., Sept. 7, 2021), the U.S. Court of Federal Claims denied a motion for reconsideration filed pro se in a case challenging the IRS's enforcement of tax liability against Camp Noble, Inc. (CNI). Petitioner claims that CNI is an integrated auxiliary of a church and that therefore the IRS lacks jurisdiction over it. The court previously dismissed the case because petitioner failed to comply with its instructions to join or substitute CNI as the real party in interest. In this decision, the court holds that plaintiff is merely reasserting arguments it previously made in the case.

Muslim Woman Can Move Ahead With Suit Over Required Removal Of Hijab For Booking Photo

 In Chaaban v. City of Detroit, (EDMI, Sept. 7, 2021), a Muslim woman who was forced to remove her hijab for a booking photograph after her arrest sued the city of Detroit, the corrections department and corrections officials. The court held that corrections officials are not entitled to qualified immunity from the claim for damages stemming from a violation of 1st Amendment rights, saying in part:

Plaintiff’s allegations are sufficient to show the MDOC Defendants were “on notice” that their policy violates a Muslim woman’s right to freely exercise her religion. Plaintiff alleges she “made her dissent and protest to the forceful removal of her hijab extremely clear”.... Moreover, it defies logic that officers operating in a facility in Detroit, near one of the nation’s largest Muslim communities, would not be aware of the religious significance of the hijab.

The court went on to hold that plaintiff adequately states a claim for injunctive and declaratory relief under RLUIPA as well as a claim for broader relief under 42 USC §1983 for violation of the 1st Amendment's free exercise clause. In refusing to dismiss plaintiff's claim against the city of Detroit, the court said in part:

The issue here is whether the City of Detroit can be held liable for a policy which did not originate with the City, but which has been alleged to be enforced by the City and its officers under the authority of the interagency agreement between the City of Detroit and MDOC....  [T]he City of Detroit was aware of the Photograph Policy and promulgated that policy or, at a minimum, adopted “a custom of tolerance or acquiescence of federal rights violations.”

The court held, however, that "there is no independent damages remedy against a municipality for violations of the Michigan Constitution."

Supreme Court Grants Review On Role Of Spiritual Advisor In Execution Chamber

In Ramirez v. Collier, (5th Cir., Sept. 6, 2021), the U.S. 5th Circuit Court of Appeals, by a vote of 2-1, affirmed a Texas federal district court's refusal to grant a stay of execution to a convicted murderer who is suing for permission to have his pastor lay hands on him as he receives a lethal injection and dies. (Background from New York Times.) Texas allows spiritual advisors to be present in the execution chamber, but they may not physically touch the prisoner nor speak. Judges Owen and Higginbotham each filed an opinion concurring in the per curiam order denying a stay.  Judge Higginbotham said in part:

[T]he complexities attending the administration of drugs in the execution procedure and its failures expose the risks of non-medical hands on the body of a person undergoing the procedure. This is plainly a humane effort with constitutional footing with steps long side those of spiritual needs.

Judge Dennis dissented arguing that petitioner has made a strong showing that the state's policy substantially burdens his religious exercise in violation of RLUIPA. He said in part:

The State has not shown why its policy of prohibiting even a brief audible prayer and any physical touching is the least restrictive means of achieving its compelling interest in this specific case. Rather, the State has largely offered general concerns about security. I do not doubt that these concerns are legitimate and important. But that is not enough to satisfy RLUIPA’s “exceptionally demanding” standard.... 

However this evening, the U.S. Supreme Court granted a stay of execution and agreed to review the case. (Ramirez v. Collier, (Docket No. 21-5592, cert. granted 9/8/2021) (Order List). The Court's order granting certiorari calls for a briefing schedule that allows the case to be argued in October or November 2021.

Mexico's Supreme Court Legalizes Abortion In State Bordering Texas

On Tuesday, Mexico's Supreme Court of Justice of the Nation held unconstitutional several provisions of the Penal Code of the state of Coahuila that criminalizes abortion.  According to a Court press release (full text in Spanish), the Court unanimously declared Article 196 of the Penal Code of Coahuila unconstitutional.  The section criminalizes voluntarily having an abortion or or causing a woman, with her consent, to have an abortion. The court said the section violates the right of a woman to choose. 

The court also invalidated Article 198 that prohibits health care workers from assisting in an abortion, and Article 199 that limits abortion in the case of rape, artificial insemination or implantation to 12 weeks. Finally the Court invalidated as discriminatory Article 224 that sets a lower penalty for rape between spouses, common-law partners and civil partners than for rape by others.

The decision was unanimous on the part of all 10 Justices. Because the decision was by more than 8 votes, its reasoning is binding on all federal and local judges. 

Reuters reports on the decision, pointing out that the state of Coahuila borders Texas which just effectively banned most abortions. This could make the state a destination for Texas women seeking abortions.

Satanic Temple Seeks RFRA Exemption From Texas Abortion Restrictions

In a press release last week, The Satanic Temple announced that it has sent a letter to the FDA arguing that its members should have unrestricted access to the medical abortion-inducing drug Mifepristone.  The move is an attempt to counter the new "heartbeat" abortion restrictions in Texas. As reported by KVUE News:

The Satanic Temple argues its members should have access to the pills under the Religious Freedom Restoration Act, the same law that allows Native Americans to access peyote for use in rituals. SB 8 “imposes an undue burden on the ability of TST members to undergo the Satanic Abortion Ritual” within the first 24 weeks of pregnancy, the group said.

“I am sure Texas Attorney General Ken Paxton – who famously spends a good deal of his time composing press releases about religious liberty issues in other states – will be proud to see that Texas’s robust religious liberty laws, which he so vociferously champions, will prevent future Abortion Rituals from being interrupted by superfluous government restrictions meant only to shame and harass those seeking an abortion,” Satanic Temple spokesperson Lucien Greaves said in a statement.

Biden Issues Rosh Hashanah Greetings

Rosh Hashanah, the Jewish New Year, begins this evening at sundown. Yesterday President Biden issued a Statement (full text) extending holiday wishes from himself and Jill Biden to those celebrating the holiday. The statement reads in part:

Rosh Hashanah is a reaffirmation that we are each endowed, by virtue of our Creator and our common humanity, with the ability to bridge the gap between the world we see and the world we seek.

In that effort, we’ve made significant progress, but much work remains. To protect ourselves and each other against a once-in-a-century virus. To rebuild an economy that provides opportunity for all Americans. To give hate no safe harbor, and speak out with clarity and conviction against antisemitism wherever and however it manifests. To reaffirm our ironclad bond with the State of Israel.

Recent Articles of Interest

From SSRN:

• Marc O. DeGirolami, Establishment's Political Priority to Free Exercise, (Notre Dame Law Review, forthcoming).
• Cameron M. Fathauer, Law as Faith: The Metaphysical Dream for the Land of the Free, (May 05, 2021).
• Raphael Cohen-Almagor, Israel as an Ethnic Democracy: Palestinian Citizens and the Fight for Equal Rights, (Berkley Forum 2021).
• John Paul Bongkiyi, An Appropriate Approach to Conflict Resolution: The Situation in Northwest and Southwest Regions of Cameroon (September 1, 2021).
• Perry Dane, New Orleans and Jerusalem: Sacred Energy, Sacred Space, and the Scattering of the Sparks. A D’var Torah on Parshat Re’eh, (August 2, 2021).
• Greer Donley & Jill Wieber Lens, Second-Trimester Abortion Dangertalk, (Boston College Law Review, Vol. 62, Forthcoming).
• Benjamin Eidelson, Dimensional Disparate Treatment, (Harvard Public Law Working Paper, Sept. 2021).
• Muhammad Nazmul Hoque, Jamaliah Said & Abu Umar Faruq Ahmad, Money Laundering from Maqāsid Al-Sharī‘Ah Perspective with Particular Reference to Preservation of Wealth (Hifz Al-Mal), (March 7, 2021).

From SmartCILP:

• Jonathan C, Augustine, A Theology of Welcome: Faith-Based Considerations of Immigrants as Strangers in a Foreign Land, 19 Connecticut Public Interest Law Journal 245-270 (2020).

Catholic High School Liable Under Title VII For Firing Gay Teacher

In Billard v. Charlotte Catholic High School, (WD NC, Sept. 3, 2021), a North Carolina federal district court held that a Catholic high school is liable under Title VII of the 1964 Civil Rights Act for firing a substitute drama teacher after he entered a gay marriage and stated on Facebook his disagreement with Catholic teaching on marriage. The court said in part:

Under Bostock, this Court finds that Plaintiff has raised a valid Title VII sex discrimination claim.... Defendants cannot escape Title VII liability by recharacterizing Plaintiff’s announcement of his engagement as “advocacy.” If Plaintiff were a woman who posted on Facebook that she was getting married to her husband, Defendants would not have interpreted her announcement as “advocacy” for or against the Catholic Church. Plaintiff’s engagement was only considered advocacy because of his sex.

The court went on to reject several defenses that were raised: the religious organization exemption in Title VII; the ministerial exception doctrine; the Religious Freedom Restoration Act; and 1st Amendment freedom of association.

President Biden Speaks to Rabbis Ahead of Jewish High Holidays

Yesterday President Biden spoke for 15 minutes (full text of remarks) in a teleconference for the upcoming Jewish High Holidays which begin Monday evening. The virtual call was sponsored by the Central Conference of American Rabbis, the Rabbinical Assembly, the Rabbinical Council of America, and the Reconstructionist Rabbinical Association. Biden's wide-ranging remarks included the following:

I used to think coming out of the Civil Rights Movement and being involved in the Jewish community as a kid ... that hate could be defeated, it could be wiped out.  But I learned a long time ago, it can’t.  It only hides.  It hides.  It hides under the rocks.  And given any oxygen at all, it comes out.  It’s a minority view, but it comes out and it comes out raging. 

And it’s been given too much oxygen in the last 4, 5, 7, 10 years.... I remember spending time at the ... Tree of Life Synagogue.... [T]he attack in Pittsburgh, ... — all anti-Semitic attacks — aren’t just a strike against the Jewish community; they’re a strike against the soul of our nation and the values which we say we stand for.  No matter its source or stated rationale, we have to and will condemn this prejudice at every turn, alongside other forms of hate.

Suit By Anti-Abortion Protesters Seeking To Chalk Slogan On DC Streets Is Dismissed

In Frederick Douglass Foundation, Inc. v. District of Columbia, (D DC, Sept. 1, 2021), the D.C. federal district court faced on a motion to dismiss the nearly identical questions that it decided in the case in March when it denied a preliminary injunction to anti-abortion protesters who wished to paint or chalk D.C. streets with the slogan "Black Pre-Born Lives Matter." Now the court dismissed plaintiffs' claims that enforcing ordinances prohibiting the defacing property against them but not against racial-justice protesters violated their free exercise and free speech rights. Discussing plaintiffs' RFRA claim, the court said in part:

Taking as true ... allegations that the individual Plaintiffs hold religious beliefs about abortion that motivate their organizing and other activities, Plaintiffs still do not allege any facts to support the claim that painting or chalking the street is needed to express those beliefs.

Moving to plaintiffs' 1st Amendment free exercise claim, the court said in part:

As with their RFRA claim, the individual Plaintiffs allege only that they “share sincerely held religious beliefs” about the preciousness of life and “engage in pro-life advocacy and witness as part of” those beliefs.... Taken as true, this statement does not establish that the inability to paint or chalk substantially burdened their religious exercise.

Biden Criticizes Supreme Court's Decision On Texas Abortion Ban; Directs Federal Response

Today President Biden issued a Statement (full text) critical of last night's Supreme Court decision refusing to block Texas' heartbeat abortion law. Biden said in part:

By allowing a law to go into effect that empowers private citizens in Texas to sue health care providers, family members supporting a woman exercising her right to choose after six weeks, or even a friend who drives her to a hospital or clinic, it unleashes unconstitutional chaos and empowers self-anointed enforcers to have devastating impacts. Complete strangers will now be empowered to inject themselves in the most private and personal health decisions faced by women.... For the majority to do this without a hearing, without the benefit of an opinion from a court below, and without due consideration of the issues, insults the rule of law and the rights of all Americans to seek redress from our courts....

... I am directing that Council and the Office of the White House Counsel to launch a whole-of-government effort to respond to this decision, looking specifically to the Department of Health and Human Services and the Department of Justice to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe, and what legal tools we have to insulate women and providers from the impact of Texas’ bizarre scheme of outsourced enforcement to private parties.

Supreme Court, 5-4, Refuses To Enjoin Texas Heartbeat Abortion Ban

The U.S. Supreme Court yesterday in a 5-4 decision refused to prevent Texas' heartbeat abortion law (S.B. 8) from continuing in effect while its constitutionality is being litigated. The law bans abortions if the physician has detected a fetal heartbeat-- usually at around 6 weeks of a pregnancy. An unusual provision in the law allows it to be enforced only through civil actions by individuals, and not by state officials. The unsigned majority opinion in Whole Woman's Health v. Jackson, (US Sup. Ct., Sept. 1, 2021) states in part:

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example ... it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention...

[T]his order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.

Chief Justice Roberts filed a dissenting opinion joined by Justices Breyer and Kagan, saying in part:

The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.

The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner....

Justice Breyer, joined by Justices Sotomayor and Kagan filed a dissenting opinion, saying in part:

I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm.

Justice Sotomayor, joined by Justices Breyer and Kagan, filed a dissenting opinion, saying in part:

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.

Justice Kagan, joined by Justices Breyer and Sotomayor filed a dissenting opinion, saying in part:

Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process.

CNN reports on the decision.

Mask Mandate Did Not Violate Jewish Student's Rights

In Zinman v. Nova Southeastern University, Inc., (SD FL, Aug. 30, 2021), a Florida federal magistrate judge recommended dismissing a suit by a law student against his law school and several other defendants challenging on religious grounds COVID-related mask mandates. The court described plaintiff's claim:

Plaintiff, who is Jewish, contends that the mask mandates require actions that run contrary to his religious beliefs. Specifically, he alleges that Judaism prohibits idolatry ... and that complying with mask mandates would be tantamount to worshiping false idols – i.e., the “so-called  ‘experts’ who claim to be able to save lives if people simply obey their commands without question.”

The magistrate judge ruled that Title VI of the 1964 Civil Rights Act only covers discrimination on the basis of race, color or national origin, and does not cover religious discrimination. He went on:

Even if the Court were to assume that one’s race or national origin can be “Jewish” for purposes of a Title VI claim, Plaintiff fails to include factual allegations to show that Nova’s mask mandate was discriminatory from a racial or national origin perspective. That is because Plaintiff implies that the issue with the mask mandate is that compliance with it is tantamount to worshiping false idols, and that it is impermissible for Jewish people to worship idols.... However, this issue pertains to a religious belief, not a racial characteristic. If the Court were to accept Plaintiff’s argument, then one who discriminates against a Jewish person would automatically be liable for discrimination based on race, religion, and national origin, without any regard to what the nature of the discriminatory act was. Such a broad and overgeneralized position, however, is untenable.

The magistrate also concluded that plaintiff's free exercise rights were not violated because the mask mandates were neutral and generally applicable requirements that are subject only to rational basis review. He also found no free speech violation, saying in part: "neither wearing or not wearing a mask is inherently expressive."

Navy Chaplain's Claim Dismissed On Res Judicata Grounds

In Lancaster v. Secretary of the Navy, (ED VA, Aug. 30, 2021), a Virginia federal district court dismissed on res judicata grounds a suit by a former Navy chaplain (now deceased) who claims that his failure to receive a promotion in rank resulted from retaliation, hostility and prejudice toward non-liturgical Protestant chaplains. The court concluded that plaintiff's claims were previously adjudicated in a 2018 decision in In re Navy Chaplaincy.

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).