Christian Employers Group Challenges HHS And EEOC Protection for Transgender Health Care

Suit was filed this week in a North Dakota federal district court by a Christian membership ministry that serves for-profit and non-profit employers challenging two federal rules on health care coverage for gender transition surgery. At issue are (1) an EEOC interpretation of Title VII that requires employers to cover gender transition services in their health plans; and (2) An HHS non-discrimination requirement that forces religiously-affiliated healthcare providers to perform gender transition surgeries, procedures, counseling, and treatments. The complaint (full text) Christian Employers Alliance v. U.S. EEOC, (D ND, filed 10/18/21), alleges in part:

31. CEA members believe and teach that each human being bears the image and likeness of God, and that the two, distinct biological sexes of male and female are complementary and together reflect the image and nature of God.

32. CEA members believe and teach that rejection of one’s biological sex is a rejection of the image of God within that person.

The suit alleges violations of RFRA, free exercise and free speech protections. ADF issued a press release announcing the filing of the lawsuit.

Appellate Court Says Injunction Against Church Picketer Was Too Broad

In Tenth Presbyterian Church v. Snyder, (PA Super, Oct. 18, 2021), a Pennsylvania state appellate court held that the trial court was justified in issuing a preliminary injunction against Phillip Snyder, an excommunicated member of the church, who picketed the church every Sunday. However the appellate court held that the preliminary injunction's requirement that Snyder remain at least 5,000 feet from the church property was not narrowly enough tailored. The appellate court pointed out that Snyder had engaged in aggressive and agitated behavior that frightened Church members, and that he carried a concealed firearm. Nevertheless, it concluded:

[T]he trial court couched its preliminary injunction in the broadest terms to protect the interest of the Church and its members, disregarding Snyder’s constitutional right to protest the Church and its leadership. A five-thousand-foot restriction places Snyder well beyond the point at which his constitutional right to protest is utterly extinguished.  Put succinctly, the five-thousand-foot restriction is not “couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of public order.”

2nd Circuit Upholds Prison's Change In Schedule For Quaker Meetings

In Green Haven Prison Preparative Meeting of the Religious Society of Friends v. New York State Department of Corrections and Community Supervision, (2d Cir., Oct. 18, 2021), the U.S. 2nd Circuit Court of Appeals affirmed the district court's denial of a preliminary injunction to plaintiffs who are individual and groups of Quakers who object to changes in the schedules for Quaker meetings at a maximum security prison. The court held that as to quarterly meetings attended by incarcerated as well outside Quakers, the non-incarcerated plaintiffs had not shown that under RLUIPA the schedule change had imposed a substantial burden on their exercise of religion. As to weekly meetings attended only by incarcerated Quakers, plaintiffs had not exhausted their administrative remedies as required by the Prison Litigation Reform Act.

Justice Department Asks Supreme Court To Reinstate District Court's Injunction Against Texas Abortion Law

In United States v. Texas, the Justice Department today filed in the Supreme Court an Application (full text) to vacate the 5th Circuit's stay of a preliminary injunction that had been granted by a Texas federal district court. The application on the Court's Shadow docket was filed with Justice Alito who is assigned to take emergency filings from the 5th Circuit. At issue is the Justice Department's challenge to the Texas "heartbeat" abortion law. The Justice Department adds that the Court may treat this as a petition for a grant of certiorari before judgment. The Application says in part:

The question now is whether Texas’s nullification of this Court’s precedents should be allowed to continue while the courts consider the United States’ suit. As the district court recognized, it should not: The United States is likely to succeed on the merits because S.B. 8 is clearly unconstitutional and because the United States has authority to seek equitable relief to protect its sovereign interests -- including its interest in the supremacy of federal law and the availability of the mechanisms for judicial review that Congress and this Court have long deemed essential to protect constitutional rights.... 

Again, the Fifth Circuit disputed none of this. Instead, the divided panel’s one-paragraph order stayed the preliminary injunction solely for “the reasons stated in” two decisions addressing a prior challenge to S.B. 8.... But those reasons do not apply to this very different suit. Sovereign immunity forced the private plaintiffs in Whole Woman’s Health to sue individual state officers, and this Court and the Fifth Circuit questioned whether those officers were proper defendants. This suit does not raise those questions because it was brought against the State of Texas itself, and the State has no immunity from suits by the United States. The Fifth Circuit ignored that distinction, which refutes the court’s only justification for the stay.

Justice Alito ordered Texas to file a response by noon on Thursday.  Twenty-three states and the District of Columbia filed a joint amicus brief (full text) in support of the Justice Department.

CNN reports on these developments.

Recent Articles of Interest

From SSRN:

• Caroline Mala Corbin, The Pledge of Allegiance Revisited: Requiring Parental Consent, (Indiana Law Journal, Forthcoming).
• Rafael Domingo Osle, The Right to Religious Freedom: Extension or Erosion?, (Tom Angier, Iain Benson, and Marc Retter (eds), Handbook on Natural Law and Human Rights (Cambridge University Press Forthcoming)).
• Mohammad Fadel, Sovereignty, Territoriality and Islamic Private International Law, (October 12, 2021).

From SmartCILP:

• UCLA Journal of Islamic and Near Eastern Law, Vol. 18 (2020): Engy Abdelkader, China's Repression of Uigher Muslims: A Human Rights Perspective in Historical Context; Yael Efron & Mohammed S. Watad, When "Allahu Akbar" Becomes a Crime: The Israeli Case; Hallie Ludsin, International Human Rights Law and Religious and Cultural Law: Breaking the Impasse; Ryan Riegg, Sources of Saudi Conduct: How Saudi Family Law and Royal Polygyny Produce Political Instability.

LGBTQ Discrimination In Placing Unaccompanied Minor Refugees Is Challenged

Suit was filed earlier this week in federal district court for the District of Columbia challenging the Office of Refugee Resettlement's contracting with religiously-sponsored agencies (including the USCCB) that discriminate on the basis of sexual orientation in providing foster parents for unaccompanied minor refugees. The complaint (full text) in Easter v. U.S. Department of Health and Human Services, (D DC, filed 10/13/2021), alleges in part:

Some ... organizations ... provide taxpayer-funded foster placement services on the federal government’s behalf in a discriminatory manner that categorically excludes lesbian, gay, and bisexual people from participating as prospective foster parents. They contend that the organizations’ religious beliefs justify denying lesbian, gay, and bisexual people from participating equally in the government program that the agencies receive taxpayer funds to administer....

The United States Constitution constrains the government by requiring freedom without favor and equality without exception in performing its functions. And what the government cannot do directly, it may not do indirectly.

Americans United issued a press release announcing the filing of the lawsuit. 

Class Action Challenges Denials Of Religious Exemptions From Federal COVID Vaccine Mandate

A class action lawsuit was filed yesterday in a Florida federal district court on behalf of military personnel, federal employees federal civilian contractors who have been denied a religious exemption from the federal government's COVID vaccine mandate. The complaint (full text) in Navy Seal I v. Biden, (MD FL, filed 10/15/2021) alleges in part:

Plaintiffs ... face a deadline under the Federal COVID-19 Vaccine Mandate to receive a COVID-19 vaccine that violates their sincerely held religious beliefs, and have been refused any religious exemption or accommodation....

Plaintiffs all have sincerely held religious beliefs, rooted in Scripture, that preclude them from complying with the Federal COVID-19 Vaccine Mandate because of the connections 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 also have sincerely held religious beliefs, rooted in Scripture, that their bodies are temples of the Holy Spirit and that they cannot place anything into their Temples without confirmation and conviction from the Holy Spirit.

The suit seeks a temporary restraining order and preliminary and permanent injunctions, claiming violations of the Free Exercise Clause, RFRA and the Federal Food, Drug and Cosmetic Act. Liberty Counsel issued a lengthy press release announcing the filing of the lawsuit.

Supreme Court Denies Cert. In Case Alleging Religious Belief Discrimination

The U.S. Supreme Court on Tuesday denied review in Pasadena Republican Club v. Western Justice Center, (Docket No. 20-1773, certiorari denied 10/12/2021). (Order List). In the case, the U.S. 9th Circuit Court of Appeals dismissed a suit claiming viewpoint discrimination and religious belief discrimination by the Western Justice Center (WJC) that was leasing the historic Maxwell House from the city of Pasedena.  WJC refused to rent space to the Republican Club for a speech by the president of the National Organization for Marriage because NOM's position on same-sex marriage, gay adoption, and transgender rights are antithetical to the values of WJC.  The 9th Circuit (full text of opinion) held that WJC was not a state actor for purposes of the Republican Club’s constitutional claims, and that the the government did not become vicariously liable for the discretionary decisions of its lessee. (See prior related posting.) Pasedena Now reports on the Court's action.

Virginia County Allows Muslim Cemetery, Settling DOJ and Private Litigation

The  Justice Department yesterday announced that it had filed a Notice of Dismissal in United States v. Stafford County Virginia, (ED VA, Oct. 14, 2021). The Department said that it is dismissing its RLUIPA lawsuit because the county has repealed the ordinances that prevented the All Muslim Association of America (AMAA) from developing a religious cemetery for Muslims. the county has also approved a site plan for the new cemetery and has settled a private lawsuit by agreeing to pay AMAA $500,000 in damages.

2nd Circuit: Protesters' Sidewalk Tables Were Not A "Place of Worship" Under FACEA

A provision (18 USC §248) in the Freedom of Access to Clinic Entrances Act of 1994 (“FACEA”) prohibits intentionally injuring, intimidating, or interfering with anyone who is exercising 1st Amendment religious freedom rights “at a place of religious worship.”  In Zhang Jingrong v. Chinese Anti-Cult World Alliance, Inc., (2nd Cir., Oct. 14, 2021), the U.S. Second Circuit Court of Appeals held that "a place of religious worship" in the statute is limited to "a place recognized or dedicated as one primarily used for religious worship", and not merely any place where religion is practiced.  Applying this definition, the court concluded that five tables on the sidewalk in Flushing, Queens, New York where Falun Gong adherents passed out flyers and displayed posters were not a "place of religious worship." The court said in part:

Plaintiffs and their fellow practitioners treated the tables primarily as a base for protesting and raising public awareness about the Chinese Communist Party’s alleged abuses against Falun Gong, rather than for religious worship. Nor was there evidence that the Falun Gong religious leadership had designated the tables as a place primarily to gather for or hold religious worship activities.

Judge Walker filed a concurring opinion arguing that 18 USC §248 exceeds Congress Commerce Clause power, saying in part:

In prohibiting violence against worshippers at places of religious worship, FACEA regulates local, non-economic conduct that has at best a tenuous connection to interstate commerce.

Courthouse News Service reports on the decision.

Maine's Vaccine Mandate Without Religious Exemption Upheld

In Jane Does 1-6 v. Mills, (D ME, Oct. 13, 2021), a Maine federal district court rejected claims by health care employees that Maine violated their free exercise rights when it eliminated religious exemptions from its COVID vaccine mandate for health care workers. The court, denying a preliminary injunction, said in part:

Here, the Rule does not compel the Plaintiffs to be vaccinated against their will, and the Plaintiffs have, in fact, freely exercised their religious beliefs by declining to be vaccinated. This is not to minimize the seriousness of the indirect consequences of the Plaintiffs’ refusal to be vaccinated, as it affects their employment. Nonetheless, the Rule has not prevented the Plaintiffs from staying true to their professed religious beliefs....

The medical exemption at issue here was adopted to protect persons whose health may be jeopardized by receiving a COVID-19 vaccination. The exemption is rightly viewed as an essential facet of the vaccine’s core purpose of protecting the health of patients and healthcare workers, including those who, for bona fide medical reasons, cannot be safely vaccinated. Because the medical exemption serves the core purpose of the COVID-19 vaccine mandate, it does not reflect a value judgment prioritizing a purely secular interest ...—over religious interests.

In addition, the vaccine mandate places an equal burden on all secular beliefs unrelated to protecting public health—for example, philosophical or politically-based objections to state-mandated vaccination requirements—to the same extent that it burdens religious beliefs....

The court rejected plaintiffs' Title VII failure to accommodate claim by concluding that plaintiffs had not exhausted their administrative remedies.

UPDATE: After the 1st Circuit refused to issue an injunction pending appeal, plaintiffs filed a Motion For Writ of Injunction Pending Appeal with the U.S. Supreme court on Oct. 15. (Liberty Counsel press release.)

5th Circuit Reinstates Texas "Heartbeat" Abortion Ban While Appeal Is Pending

By a 2-1 vote tonight, in United States v. State of Texas, (5th Cir., Oct. 14, 2021), the U.S. 5th Circuit Court of Appeals in a one-page Order allowed Texas' restrictive "heartbeat" abortion law to go back into effect while an expedited appeal of the district court's decision enjoining it is heard.

Suit Uniquely Brings Together Issues of Abortion and Vaccines

Suit was filed this week in a California federal district court challenging California's recently enacted SB 742 which creates a 30-foot floating buffer zone to prevent harassment or interference with any person who is entering or exiting a vaccination site. The buffer zone applies to anyone within 100 feet from the vaccination site entrance. The complaint (full text) in Right To Life of Central California v. Bonta, (ED CA, filed 10/13/2021), raises the challenge in a unique factual context. Right to Life is an organization that attempts to dissuade women from having abortions and which provides support to pregnant women and those who have had abortions. Its Outreach Center is located next door to a Planned Parenthood clinic and its staff regularly approaches women who are entering Planned Parenthood. The new law prevents this-- even when outreach staff is on its own property-- because the contiguous Planned Parenthood Center offers HPV vaccine. The complaint alleges that the new law violates plaintiff's 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.

Suit Challenges Connecticut Regulation Of Limited Services Pregnancy Centers

Suit was filed this week in a Connecticut federal district court challenging a Connecticut Public Act 21-17 that prohibits deceptive advertising practices by limited services pregnancy centers which are facilities that do not provide or refer for abortions or emergency contraception. The complaint (full text) in Pregnancy Support Center, Inc. v. Tong, (D CT, filed 10/12/2021), alleges that the law violates plaintiff's free speech, expressive association, free exercise, equal protection and due process rights. It contends in part:

The Act ... is informed by hostility toward pregnancy services centers’ religious beliefs and pro-life viewpoint, and it targets pregnancy service centers’ disfavored religious beliefs for punishment.

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

Baltimore Wrongly Denied Permission For Rally To Protest USCCB Conference

In St. Michael's Media, Inc v. Mayor and City Council of Baltimore, (D MD, Oct. 12, 2021), a Maryland federal district court in an 86-page opinion held that the city of Baltimore violated the free speech and assembly rights of St. Michael's (also known as "Church Militant") when it instructed the company managing the city-owned Pavilion to cease contract discussions with Church Militant.  Church Militant was planning a protest prayer rally across from the Fall General Assembly of the U.S. Conference of Catholic Bishops. According to the court, Church Militant:

“often criticizes the current leadership” of the Catholic Church for what it perceives as “corruption in the Church,” including the Church’s protection of priests and others implicated in the sexual abuse of minors.... In addition, St. Michael’s “is a vocal critic of what it perceives as politicization of the Catholic Church by the USCCB.” ... In particular, it “disagrees with, and criticizes, a number of the USCCB’s positions on religious doctrine and morality, as well as the Catholic Church’s covering up of the sexual abuse committed by priests.”

The city contended:

Church Militant is attempting to hold an event on November 16, 2021 with confirmed speakers including Steve Bannon and others whose speaking engagements and statements have a track record of inviting protestors and counter protestors and supporting the January 6 attack on the Capitol in Washington, D.C. According to available media reports, their events and statements have a demonstrated history of inciting property destruction, physical assaults, and other violence....

The court held, however:

Even under the more lenient standard applied to nonpublic and limited fora, viewpoint discrimination is constitutionally impermissible.... I conclude that plaintiff is likely to succeed on the merits of its claim that the City was not viewpoint-neutral in barring the rally. Therefore, I need not consider whether the City’s actions would have been reasonable in the absence of viewpoint discrimination....

Without question, the City reacted to a perceived safety concern arising from past use of inflammatory remarks by some of the rally speakers. In thwarting the rally, the City essentially invoked or relied on the heckler’s veto. And, in doing so, it exercised complete, unfettered discretion; it acted on an ad hoc basis, without any standards. Further, it has presented somewhat shifting justifications for its actions, with little evidence to show that the decision was premised on these justifications....

The City cannot conjure up hypothetical hecklers and then grant them veto power.... Moreover, invocation of the events of January 6, 2021, as horrifying as they were, cannot, without more, serve as a license for the City to dispense with its obligations under the First Amendment.

The court granted a preliminary injunction and the city has appealed to the Fourth Circuit.

UPDATE: In an Order dated Nov. 3 (full text), the U.S. 4th Circuit Court of Appeals, without opinion, affirmed the district court.

European Court Upholds Vatican's Immunity From Suit In Member-State Courts

In J.C. and Others v. Belgium, (ECHR, Oct. 12, 2021) (full text in French) (press release in English) the European Court of Human Rights in a 6-1 Chamber judgment held that Belgian courts acted properly in recognizing immunity of the Holy See from jurisdiction of domestic courts. At issue was a suit by 24 Belgian, French and Dutch nationals who alleged that as children they were abused by priests. They filed a class action for damages contending that the Church dealt with its sexual abuse problem in a structurally deficient manner. After the dismissal by Belgian courts, 20 of the plaintiffs were able to obtain compensation through the Church's own arbitration center for sexual abuse claims.

6th Circuit: RLUIPA Requires More Than Vegan Sabbath And Holiday Meals For Jewish Inmates

In Ackerman v. Washington, (6th Cir., Oct. 12, 2021), the U.S. 6th Circuit Court of Appeals held that Michigan Department of Corrections universal religious meal plan is inadequate to meet the religious needs of Jewish prisoners. The court summarized its holding:

The Michigan Department of Corrections serves a universal religious diet to all prisoners with religious dietary needs. It created this meal plan to avoid forcing prisoners to eat foods that violate their sincere religious beliefs. And because some religious beliefs forbid eating animal products, the universal religious meals are vegan. Because other prisoners require kosher food, the vegan meal is also kosher.

Gerald Ackerman and Mark Shaykin are Jewish prisoners confined in MDOC facilities. Their religious beliefs require them to eat a meal with kosher meat and a meal with dairy on the Jewish Sabbath and four Jewish holidays. They also believe that they must eat cheesecake on the holiday of Shavuot to celebrate the holiday properly. So they claim that MDOC policies that force them to eat vegan meals on these days substantially burden their sincere religious beliefs. And they argue that the MDOC needs to accommodate their beliefs under the Religious Land Use and Institutionalized Persons Act (RLUIPA). We agree and affirm the district court’s judgment in the prisoners’ favor.

Law & Crime reports on the decision.

New York Enjoined Over Elimination of Religious Exemptions In Vaccine Mandate

In Dr. A v. Hochul, (ND NY, Oct. 12, 2021), a New York federal district court issued a preliminary injunction to health care workers who object to the elimination of religious exemptions from New York's requirement that health care workers be vaccinated against COVID. The court concluded that the absence of an exemption conflicts with the anti-discrimination provisions of Title VII and with the Free Exercise clause.  The court said in part:

What matters here is not whether a religious practitioner would win or lose a future Title VII lawsuit. What matters is that plaintiffs’ current showing establishes that § 2.61 has effectively foreclosed the pathway to seeking a religious accommodation that is guaranteed under Title VII.....

The court also concluded that the law is neither neutral nor generally applicable. The state's original vaccine mandate included both medical and religious exemptions. Subsequently religious exemptions were eliminated. The court said in part:

This intentional change in language is the kind of “religious gerrymander” that triggers heightened scrutiny.

The court had previously issued a temporary restraining order in the case. (See prior posting.) Liberty Counsel issued a press release announcing the decision. AP reports on the decision.

 

Wyoming Supreme Court Rejects Nun's Claim That She Was Engaged In Ritual Of Mortification

In ASM v. State of Wyoming, (WY Sup. Ct., Oct. 12, 2021), the Wyoming Supreme Court rejected appellant's claim that the state violated her free exercise rights when it ordered her involuntary hospitalization after she began injuring herself while in detention on arson charges. Appellant (ASM) claimed that she is a Catholic nun and that she was engaged in the Catholic ritual of mortification when she scratched skin off her face. According to the Court, the psychiatrist who examined ASM explained her conduct in part as follows:

Dr. Schaaf was aware of ASM’s religious beliefs but believed that she “engage[d] [in] and promote[d] religious beliefs as a way to manipulate others around her.” He was also aware of some form of self-chastisement in Catholicism, but opined that it did not fit the way ASM chose to self harm.... Further, ASM’s self-harming behaviors correlated with many occasions when she contacted police officers to report being assaulted when she had in fact been hitting herself. He explained that “at some level [ASM] engage[d] in self[-]harm behaviors not as a way to express herself in a spiritual sense but to again manipulate.” That manipulation was due to her personality disorder.

The Court concluded:

... [E]ven assuming ASM held a sincere religious belief about the Catholic ritual of mortification, she failed to establish that she was engaged in such practice when she injured herself in the detention facility.

Supreme Court Hears Arguments Today On State AG's Intervention To Defend Abortion Law [UPDATED]

Today the U.S. Supreme Court hears oral arguments in Cameron v. EMW Women’s Surgical Center. In the case, the U.S. 6th Circuit Court of Appeals in a 2-1 decision (full text of decision) refused to allow the state attorney general to intervene to defend the constitutionality of a Kentucky statute which banned D&E abortions prior to fetal demise. The AG sought to intervene after the 6th Circuit held the statute unconstitutional and no state official would seek a rehearing or an appeal. The Supreme Court's grant of review was limited to the question of whether intervention should have been allowed. SCOTUSblog has a preview of today's arguments. The arguments will be streamed live on C-SPAN at 10:00 a.m. EST. The SCOTUSblog case page has links to all the filings in the case. When a transcript and recordings of the arguments become available, I will update this post with links to them.

UPDATE: Here are links to the transcript and audio of the oral arguments. CNBC reports extensively on the oral arguments in an article titled Supreme Court signals it will side with Kentucky attorney general in bid to defend restrictive abortion law.

Israeli Court On Appeal Upholds Ban On Jewish Prayer On Temple Mount

In Israel last Friday, a Jerusalem district court reversed a Magistrate Court's decision that would have allowed Jews to pray on the Temple Mount. The appeals court heeded concerns by Israeli authorities that allowing Jewish prayer there could lead to violence that could endanger national security. As reported by Haaretz:

The earlier ruling by the Jerusalem Magistrate’s Court concerned a Jewish man, Arye Lipo, who was barred from the Temple Mount for 15 days after the police caught him quietly praying there. The court rescinded the ban, ruling that the man, “like many others, prays on a daily basis on the Temple Mount.”...

Under an unofficial understanding, Jews are allowed to visit but not pray on the Mount, which is known to Muslims as the Haram al-Sharif, or the Noble Sanctuary. Although the police enforce this, recent months have seen a loosening of the status quo, with more Jews praying in the compound individually and even in groups.

Noting that Lipo prayed “quietly” and privately, the magistrate's court said that “this activity by itself is not enough to violate the police’s instructions.”...

Hamas spokesman Abdel Latif al-Qanua called the decision "blatant aggression against the Al-Aqsa Mosque and a declaration of war...."

Biden Picks Former Indiana Senator As Ambassador To Vatican

Last Friday, the White House announced that President Biden will nominate former Indiana senator Joseph Donnelley as Ambassador Extraordinary and Plenipotentiary to the Holy See. Indianapolis Star reported on the nomination. Donnelley has also been a faculty member at Notre Dame and is presently a partner at the law firm of Aiken Gump.

Recent Articles of Interest

 From SSRN:

• Saud M. Alholiby & Zakaria A. Almulhim, From the Lack to the Requirement: The Public Consultation Reform in Saudi Arabia,  (UCLA Journal of Islamic and Near Eastern Law, Forthcoming).
• Mark Movsesian, Law, Religion, and the COVID Crisis, (Journal of Law and Religion, Forthcoming).
• Scott W. Gaylord, Roe as Potemkin Village: Fallacies, Facades, and Stare Decisis (September 17, 2021).
• Jean-Francois Achille, 'Unnecessary Cruelty': Freedom of Religion and the Humane Slaughter Act (May 15, 2021).
• David R. Stras, What My Grandparents’ Experiences in the Holocaust Taught Me About the First Amendment, (NYU Journal of Law & Liberty, Forthcoming).
• Moorthy S. Muthuswamy, Does Sharia Act as both a Mediator and Moderator in Salafi Radicalism?, (August 29, 2021).

New Journal

• The Inaugural Issue of the Australian Journal of Law & Religion is now being developed.

From SmartCILP:

• Richard S. Myers, The Significance of Trinity Lutheran, 17 Ave Maria Law Review 1-17 (2019).
• John C. Eastman, "Religiously Scrupulous"': Freedom of Conscience at the Founding, 17 Ave Maria Law Review 18-34 (2019).
• Massimo Campanini & Mohamed 'Arafa, Islam and Democracy: Appreciating the Nuance and Complexity of Legal Systems with a Basis in Religion, 26 Barry Law Review 1-30 (2020).
• Volume 5, Buddhism Law & Society (2019-20).

5th Circuit Issues Narrow Stay Of Injunction Against Texas "Heartbeat" Abortion Law

As has been widely reported (CNN), the U.S. 5th Circuit Court of Appeals early today in United States v. State of Texas, (5th Cir. Oct. 9, 2021) temporarily lifted the Texas federal district court's preliminary injunction against enforcement of Texas S.B. 8, the state's "heartbeat" abortion ban that is enforced solely through private civil actions for statutory damages. An appeal was filed by Texas and by three intervenors who planned to sue under the new law. In its motion (full text) filed yesterday, Texas said:

The State respectfully requests an emergency stay pending appeal ...  and an administrative stay as soon as possible to prevent it from being held in contempt for the actions of third parties it cannot and does not control.

In its motion, Texas argued in part:

[S]tate court clerks are now enjoined from “accepting,” “docketing,” or “maintaining” any S.B. 8 case, ... but “[t]he longstanding rule in Texas is that an instrument is deemed in law filed at the time it is left with the clerk, regardless of whether or not” a clerk adds “a file mark.”... Thus, an S.B. 8 suit “is ‘filed’ when it is tendered to the clerk,” regardless of the clerk’s actions.... Once such a suit is filed, clerks can be accused of “accepting,” “docketing,” and “maintaining” it, especially given the district court’s failure to define the terms it used. Put simply, there is no way for the State to ensure compliance with this injunction and avoid contempt proceedings.

In its decision today, the 5th Circuit apparently focused on this narrow concern. Its order provides:

IT IS ORDERED that Intervenors’ emergency motion to stay the preliminary injunction pending appeal is temporarily held in abeyance pending further order by this motions panel. Appellee is directed to respond to the emergency motion by 5 pm on Tuesday, October 12, 2021.

IT IS ORDERED that Intervenors’ motion for a temporary administrative stay pending the court’s consideration of the emergency motion is GRANTED.

Canadian Court Says Tai Chi Institute Is A Religious Institution

In Fung Loy Kok Taoism Institute v. City of Montreal, (Quebec Super. Ct., Sept. 20, 2021), a Canadian trial court in Quebec held that a Taoist Tai chi Institute is entitled to an exemption from property, municipal and school taxes. The court's 50-page opinion includes a lengthy discussion of what constitutes a "religion". Summarizing its ultimate conclusion on the tax issues, the court says in part:

These ... requests ... raise two major questions: what is a religion? What is a religious institution?....

... [S]hould Taoist Tai chi , as practiced, taught and disseminated in Canada by the Chinese monk Moy Lin-Shin ("master Moy"), be regarded as a religion in its own right rather than for proper gymnastics to promote internal balance and health?

... The Fung Loy Kok Institute of Taoism ... which offers classes or sessions of tai chi for a monetary contribution from the participants, does it qualify as a religious institution within the meaning of the law allowing it to benefit in Quebec from an exemption from property taxes? ...

At the end of its analysis, the Tribunal comes to the conclusion that both the first and the second of these two questions must be answered in the affirmative.

Windsor Star reports on the decision.

Police Officer Who Prayed Outside Abortion Clinic Sues Over Suspension From Duty

An officer in the Louisville, Kentucky police department this week filed suit in a Kentucky federal district court seeking damages for the Department's four-month suspension of him. The suspension was in effect during an extended investigation of the officer's praying outside an abortion clinic while in uniform, but before he went on duty for the day. He was ultimately cleared of any violation of rules.  The complaint (full text) in Schrenger v. Shields, (WD KY, filed 10/4/2021) alleges violations of the 1st and 14th amendments as well as of Title VII, and state civil rights laws. It also alleges a claim for intentional infliction of emotional distress. WDRB News, reporting on the lawsuit, says:

EMW staff said the officer intimidated patients and medical staff while wearing his uniform and gun.

Surveillance video from the clinic showed Schrenger in a marked police cruiser. He marched outside of the clinic for approximately 45 minutes, at one point holding a sign that read "pray to end abortion."

6th Circuit: Christian Student Athletes Wrongly Denied Exemption From COVID Vaccine Mandate

In Dahl v. Board of Trustees of Western Michigan University, (6th Cir., Oct. 7, 2021), the U.S. 6th Circuit Court of Appeals upheld, pending appeal, a district court's injunction barring Western Michigan University from enforcing its COVID vaccine mandate against 16 Christian student athletes who had applied for religious exemptions. The university requires student athletes to be vaccinated, but provides for medical and religious exemptions. Plaintiffs here however were denied a religious exemption. The court said in part:

[W]here a state extends discretionary exemptions to a policy, it must grant exemptions for cases of “religious hardship” or present compelling reasons not to do so....

True, the University did maintain plaintiffs’ athletic scholarships and did not formally dismiss them from their teams. But that is not the same thing as granting an exception from the University’s policy of conditioning “full involvement in the athletic department” on vaccination status. After all, the purported exception plaintiffs received did not allow them to play college sports. Yet playing on the team (and not just receiving a scholarship) is their goal, a point the University itself recognized....

Because the University’s policy is not neutral and generally applicable, we analyze the policy through the lens of what has come to be known as “strict scrutiny.” ... The University’s interest in fighting COVID-19 is compelling..... But the University falters on the narrow tailoring prong. For one, public health measures are not narrowly tailored if they allow similar conduct that “create[s] a more serious health risk.”... That is the case at the University, which allows non-athletes—the vast majority of its students—to remain unvaccinated. One need not be a public health expert to recognize that the likelihood that a student-athlete contracts COVID-19 from an unvaccinated non-athlete with whom she lives, studies, works, exercises, socializes, or dines may well meet or exceed that of the athlete contracting the virus from a plaintiff who obtains a religious exemption to participate in team activities....

Fox2Detroit reports on the decision.

Woman Required To Remove Hijab Loses Suit Against Security Guard and County

In Niblett v. Universal Protection Service, LP, (CD CA, Oct. 5, 2021), a California federal district court dismissed a damage action by a Muslim woman who was required by a security guard to remove her hijab in order to enter Los Angeles County's Department of Public Social Services building. The court dismissed on qualified immunity grounds the suit against the security guard and his employer that were hired to provide security for the county building, saying in part:

Assuming that Rodriguez and UPS were acting under color of state law when they exercised their authority to control access to a County building, which the Court does not decide, Plaintiff has not alleged a violation of any clearly established First Amendment right. Plaintiff ... cites no authority whatsoever holding that requiring someone to remove a hijab to pass through a metal detector violates the First Amendment.

Plaintiff's suit against the County was dismissed for failure to show a policy or practice of constitutional violations, saying in part:

Plaintiff does not allege that before her encounter with Rodriguez any County employee or agent had ever forced a Muslim woman to remove her hijab in any context, much less that County employees and agents had a widespread practice of requiring Muslim women to remove their hijabs in order to pass through security screenings at County buildings. Similarly, she does not allege facts suggesting that the County knew of such a practice and endorsed it or had reason to know further training was required about allowing hijabs to be worn through metal detectors.

Federal District Court Enjoins Texas' Controversial "Heartbeat" Abortion Ban

In United States v. State of Texas, (WD TX, Oct. 6, 2021), a Texas federal district court in a 113-page decision, preliminarily enjoined enforcement of Texas S.B. 8, the state's "heartbeat" abortion ban that is enforced solely through private civil actions for statutory damages. In another case, the U.S. Supreme Court last month refused to prevent the Texas law from going into effect while its constitutionality was being litigated. Today's decision comes in a lawsuit filed by the U.S. Department of Justice. In it, the court explores at length the standing and redressability issues that have been seen as impediments to courts' reviewing the law that effectively bans almost all abortions after six weeks of gestation.  The court said in part:

A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established. With full knowledge that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme whereby it created a private cause of action in which private citizens with no personal interest in or connection to a person seeking an abortion would be able to interfere with that right using the state’s judicial system, judges, and court officials.....

This Court finds that S.B. 8 concretely injures the United States by prohibiting federal personnel and contractors from carrying out their obligations to provide abortion-related services and subjecting federal employees and contractors to civil liability for aiding and abetting the performance of an abortion....

The next question is whether the United States suffers an injury-in-fact such that it has standing to challenge a potential violation of Constitutional rights that not only impacts federal agencies, but the public at large.... The United States has standing to file suit in parens patriae for probable violations of its citizens’ Constitutional rights.... [W]hen, as here, a state appears to deprive individuals of their constitutional rights by adopting a scheme designed to evade federal judicial review, the United States possesses sovereign interest in preventing such a harm. This interest is sufficient to establish a particularized injury....

... [I]n the alternative, ... the concepts underpinning In Re Debs and its progeny likewise establish a particularized injury to sovereign interests of the United States.... Debs supports standing where the government’s interest is preventing harms to “the general welfare” and the “public at large."... 

However, this Court notes that were Debs’s progeny to be read narrowly to support standing only in cases involving interstate commerce, the United States has likewise demonstrated an interest sufficient to establish standing..... By extending liability to persons anywhere in the country, S.B. 8’s structure all but ensures that it will implicate commerce across state lines.... In addition to imposing liability on those coming into Texas, the law has also already had the effect of pushing individuals seeking abortions into other states.... This stream of individuals across state lines burdens clinics in nearby states and impedes pregnant individuals in surrounding states from accessing abortions due to backlogs.....

[T]he State’s scheme to disguise its enforcement role and disclaim accountability collapses upon cursory inspection. The State enacted S.B. 8 and created a private enforcement scheme that clothes private individuals with the State’s enforcement power.... That delegation alone would have been sufficient to show state action. The practical operation of an S.B. 8 lawsuit in Texas courts deepens the State’s enforcement role.... [T]he State plays a role at every step of an S.B. 8’s lifecycle in Texas courts. A private cause of action enforcement scheme is meaningless without state action.... An injunction properly runs against the State....

... [T]he State has intentionally crafted a statute to employ private citizens as its proxy. Put simply, the State’s participation in enforcing S.B. 8 lawsuits amounts to actionable state action....

... [P]rivate individuals enforcing S.B. 8 are properly regarded as state actors.... The private individuals who bring S.B. 8 lawsuits are [also] in active concert with the State to enforce S.B. 8....

IT IS ORDERED that the State of Texas, including its officers, officials, agents, employees, and any other persons or entities acting on its behalf, are preliminarily enjoined from enforcing Texas Health and Safety Code §§ 171.201–.212, including accepting or docketing, maintaining, hearing, resolving, awarding damages in, enforcing judgments in, enforcing any administrative penalties in, and administering any lawsuit brought pursuant to the Texas Health and Safety Code §§171.201–.212. For clarity, this Court preliminarily enjoins state court judges and state court clerks who have the power to enforce or administer Texas Health and Safety Code §§171.201– .212.

As set out above, this Court has the authority to enjoin the private individuals who act on behalf of the State or act in active concert with the State.... However, the Court need not craft an injunction that runs to the future actions of private individuals per se, but, given the scope of the injunctions discussed here and supported by law, those private individuals’ actions are proscribed to the extent their attempts to bring a civil action ... would necessitate state action that is now prohibited.

IT IS ORDERED that the State of Texas must publish this preliminary injunction on all of its public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.....

CNN reports on today's decision and notes that quickly after the decision, Texas filed a notice of appeal to the 5th Circuit.

French Commission Reports On History Of Sexual Abuse In Catholic Church

As reported by CNN, France's Independent Commission on Sexual Abuse in the Church (CIASE) yesterday filed its final report:

Members of the Catholic clergy in France sexually abused an estimated 216,000 minors over the past seven decades, according to a damning report published Tuesday that said the Church had prioritized the protection of the institution over victims who were urged to stay silent.

The number of abused minors rises to an estimated 330,000 when including victims of people who were not clergy but had other links to the Church, such as Catholic schools and youth programs. Between 2,900 and 3,200 abusers were estimated to have worked in the French Catholic Church between 1950 and 2020, out of a total of 115,000 priests and other clerics, the report found.

An English language 32-page summary (full text) of the Final Report is available online. It includes 45 recommendations to prevent future abuse, Links to the full text in French of the Final Report, Testimony and other documents are available here.

Trial Court Bars Some, Allows Other Oklahoma Abortion Restrictions

An Oklahoma state trial court judge yesterday, in a ruling from the bench in Oklahoma Call for Reproductive Justice v. O'Connor, (OK Dist. Ct., Oct. 4, 2021) (full text of complaint), issued a temporary restraining order barring enforcement of some of Oklahoma's new abortion restrictions, but denying a TRO as to other provisions. According to a press release from Center for Reproductive Rights:

The laws blocked by today’s ruling include: a total abortion ban declaring that providing abortion at any stage in pregnancy qualifies as “unprofessional conduct” by physicians; and a law banning abortion as early as six weeks into pregnancy, before many people even know they are pregnant. The state conceded that these laws are unconstitutional under Roe v. Wade.

However the court refused to enjoin provisions that would require doctors performing abortions to be board-certified OB/GYNs; and various restrictions on medication abortions, including an admitting privilege requirement and and ultrasound requirement.

HHS Reverses Trump Administration Rules For Family Planning Grantees

The Department of Health and Human Services yesterday revoked the Trump Administration rules that prohibit family planning clinics receiving Title X funds from making referrals for abortions and which require strict physical and financial separation between abortion services and services funded by Title X monies. The HHS 124-page rule release (full text) titled Ensuring Access to Equitable, Affordable, Client-Centered, Quality Family Planning Services reinstates pre-2019 requirements, saying in part:

In addition to readopting the requirements as they existed prior to the 2019 rule, the 2021 rule also includes several revisions that will strengthen the Title X program and ensure access to equitable, affordable, client-centered, quality family planning services for all clients, especially for low-income clients, while retaining the longstanding prohibition on directly promoting or performing abortion that follows from Section 1008’s text and subsequent appropriations enactments.

The new rules require that grantees offer the opportunity for clients to receive non-directive counseling on the range of options available-- pre-natal care and delivery; infant care, foster care or adoption; and pregnancy termination. However "objecting individuals and grantees will not be required to counsel or refer for abortions in the Title X program in accordance with applicable federal law."

The new rules become effective on Nov. 6. AP reports on the new rules. Planned Parenthood issued a press release regarding the new rules.

Cert. Denied In COVID, Chaplaincy and Abortion Cases

Today the U.S. Supreme Court issued its lengthy (66-page) first-day-of-the-Term Order List denying review in several hundred cases. It includes the denial of certiorari in the following:

Calvary Chapel of Bangor v. Mills (Docket No. 20-1346): In the case, the 1st Circuit Court of Appeals dismissed a church's interlocutory appeal challenging the Maine governor's COVID Orders limiting attendance at faith-based events. (See prior posting.)

Chaplaincy of Full Gospel v. Department of Navy (Docket No. 20-1794): A case in litigation for over 20 years involving allegations by non-liturgical Protestant chaplains of discrimination against them by selection boards that control promotions and early retirements of Navy chaplains. (See prior posting.)

Schmitt v. Planned Parenthood (Docket No. 21-3): A challenge to Missouri  HB 126 imposing Down Syndrome and Gestational Age limits on abortions. The Supreme Court noted: "After this petition was filed, the United States Court of Appeals for the Eighth Circuit withdrew the panel opinion from which the petition sought certiorari. Accordingly, given the absence of any opinion for our review at this time, the petition is denied  without prejudice to the filing of a new petition by either party following the Eighth Circuit’s final disposition of the case."

Recent Articles of Interest

From SSRN:

• Sahar F. Aziz, Reflections on Security, Race, and Rights Twenty Years After 9/11, (12 J. Nat'l Sec. L. & Pol. 135 (2021)).
• Carl H. Esbeck, An Extended Essay on Church Autonomy, (22 Federalist Society Review 244 (2021)).
• Richard W. Garnett & Mitchell Koppinger, Tandon v. Newsome, South Bay Pentecostal, & Roman Catholic Diocese of Brooklyn on Religious Liberty and the Pandemic, (Ch. 13, M. Marietta, ed., SCOTUS 2021: Major Decisions and Developments of the U.S. Supreme Court (Forthcoming 2021)).
• Nausica Palazzo, Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships, (Columbia Journal of Gender and Law, Forthcoming).
• Duncan Kennedy, Consciousness, Doctrine, and Politics in the History of American Family Law, (February 2, 2020).

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

• Robert C. Blitt, Russia’s 2020 Constitutional Amendments and the Entrenchment of the Moscow Patriarchate as a Lever of Foreign Policy Soft Power, (Peter Mandaville (ed.), The Geopolitics of Religious Soft Power: How States Use Religion in Foreign Policy, Oxford University Press, Forthcoming 2022).
• Thomas McMahon, Canada Needs the Every Child Matters Act: What Needs to Be in the Act, (September 30, 2021).
• Saud Alholiby & Zakaria A. Almulhim, From the Lack to the Requirement: The Public Consultation Reform in Saudi Arabia, (UCLA Journal of Islamic and Near Eastern Law, Forthcoming).
• Christian Bjørnskov, Stefan Voigt & Mahdi Khesali,   Unconstitutional States of Emergency, (August 30, 2021).

From SmartCILP:

• Fatemah AlBader, Cultural Oppression Disguised as Religious Obligation: A Fatal Misrepresentation to the Advancement of Muslim Women's Rights in the Context of the So-Called Honor Killings, 24 Asian Pacific American Law Journal 1-16 (2020).
• Stephanie Hennette-Vauchez, Religious Neutrality, Laicite and Colorblindness: A Comparative Analysis, 42 Cardozo Law Review 539-596 (2021).
• Mark Strasser, Conscience Clauses and the Placement of Children: Introduction, 15 Journal of Law & Family Studies 1-18 (2013).

Kentucky Governor Has Qualified Immunity From Church's Damage Suit Over COVID Orders

In Pleasant View Baptist Church v. Beshear, (ED KY, Sept. 30, 2021), a Kentucky federal district court held that Kentucky's governor has qualified immunity from a damage action against him brought by a church that objected to his COVID Orders that temporarily suspended in-person classes in public and private schools. Plaintiff sought compensatory and punitive damages. The court said in part:

After examining the applicable precedent, particularly in light of a global pandemic, Pleasant View cannot demonstrate that Governor Beshear’s issuance of Executive Order 2020-969 violated a clearly established constitutional right, and qualified immunity will be granted on that basis. In fact, courts across the country have addressed qualified immunity for government officials at the 12(b)(6) stage regarding Covid-19 measures and found government officials to be immune from suit in their personal capacities.

The court found that plaintiff's claims for declaratory relief are moot.

Rhode Island Vaccine Mandate, Silent On Religious Exemptions, Is Upheld

In Dr. T v. Alexander-Scott, (D RI, Sept. 30, 2021), a Rhode Island federal district court refused to issue a temporary restraining order to prevent enforcement of a Rhode Island Department of Health Emergency Regulation that requires all healthcare workers (except if medically exempt) to be vaccinated against COVID-19. Plaintiffs challenge the absence of a provision for religious exemptions.  Rejecting plaintiffs' 1st Amendment challenge, the court held that the regulation is a neutral law of general applicability. Responding to plaintiffs' claim that the Regulation is in conflict with Title VII, the court said in part:

Nothing in the language [of the Regulation] prevents any employer from providing a reasonable accommodation to an employee who seeks one in accord with their sincerely held religious beliefs. Indeed, the Regulation is silent on the issue of religious exemptions. Title VII requires employers to accommodate religious beliefs, practices, or observances only to the extent that doing so would not impose “undue hardship” on the employer.... While the Regulation may make it more difficult for employers to accommodate religious objections; it does not create a “physical impossibility.”

Interesting Supreme Court Term Opens Tomorrow

The U.S. Supreme Court's Fall Term opens tomorrow morning. Several cases important to Religion Clause readers will be heard this term. (Others may be added to the Court's docket in coming weeks or months. Also emergency petitions of interest are likely to arise on the Court's so-called "Shadow Docket" during the Term.)  Here are the cases of interest the Court has agreed to hear so far, with links to the SCOTUSblog case page for each. (Links to all the pleadings in the case and other relevant material can be found on the case page):

Cameron v. EMW Women’s Surgical Center, P.S.C.  In the case, the U.S. 6th Circuit Court of Appeals refused to allow the state attorney general to intervene to defend the constitutionality of a Kentucky statute which banned D&E abortions prior to fetal demise.

Ramirez v. Collier.  A convicted murderer is suing for permission to have his pastor lay hands on him in the Texas execution chamber as he receives a lethal injection and dies.

Federal Bureau of Investigation v. Fazaga: This case grows out of a suit for damages against FBI agents for discriminatory surveillance of Muslims in California. The issue for the Supreme Court is whether a provision in FISA displaces the state secrets privilege to allow the district court to move ahead in camera, rather than dismissing the claims.

Dobbs v. Jackson Women’s Health Organization: This is a challenge to Mississippi's abortion law that bars most abortions after 15 weeks of gestation.  The question before the Court is framed as whether there can be any ban on pre-viability abortions.

Carson v. Makin: At issue is whether Maine can exclude schools that provide religious instruction from participating in a program that pays tuition to out-of-district public or private high schools for students whose districts do not operate a high school.

Shurtleff v. Boston: Here a Christian organization is suing because the city of Boston refused to allow it to raise its "Christian" flag on a city hall flagpole that is open to private organizations for temporary flag-raising ceremonies.

In anticipation of the new Term, the Roman Catholic Archdiocese of Washington and the John Carroll Society will present the 69th Annual Red Mass today at 10:00 am. Several Justices usually attend. It will be livestreamed on YouTube. The National Law Journal has background and more information on this year's Mass.

Nuns Again Lose Challenge To Atlantic Sunrise Pipeline

 In Adorers of the Blood of Christ v. Transcontinental Gas Pipeline Co., (ED PA, Sept. 30, 2021), a Pennsylvania federal district court dismissed a claim for damages under RFRA brought by an Order of Catholic nuns whose land was condemned for construction of the Atlantic Sunrise Pipeline. They alleged that the taking violated their religious exercise because of their belief in the need to protect and preserve creation. In 2018, the U.S. 3rd Circuit Court of Appeals held that their suit seeking an injunction against the pipeline should be dismissed because their challenge should have first been brought before the Federal Energy Regulatory Commission (FERC). (See prior posting.) In this week's decision, the court said in part:

simply seeking money damages as opposed to injunctive relief does not cure the jurisdictional defect in this matter.

Limited Religious Exemptions From Vaccine Mandate Challenged

Suit was filed this week in a Colorado federal district court challenging provisions limiting religious exemptions from the University of Colorado Medical School's vaccine mandate.  The school offers a religious exemption only to those whose objections are based on a religious belief whose teachings are opposed to all immunizations. The complaint (full text) in Jane Doe, M.D. v. University of Colorado,(D CO, filed 9/29/2021), says in part:

[The policy] imposes two necessary conditions to ... any religious accommodation, namely:

a. ... [A] sincere religious belief that opposes acceptance of “all immunizations” and vaccines; and

b. That the person requesting a religious accommodation be a member of an organized religion whose tenets include a hierarchically promulgated, authoritative position on the moral liceity of “all immunizations” and vaccines....

Both conditions are clearly forbidden by the Establishment, Free Exercise, and Equal Protection clauses of the United States constitution and the Religious Freedom provisions of the Colorado constitution.... [They] privileg[e] hierarchically prescribed religious belief over autonomously prescribed (yet sincerely held) religious belief.

Thomas More Society issued a press release announcing the filing of the lawsuit.

Religious Accommodation That Violates OSHA Rules Not Required

In Hamilton v. City of New York, (ED NY, Sept.28, 2021), a New York federal district court dismissed religious discrimination and failure to accommodate claims brought by a Jewish New York City firefighter. Plaintiff, who wore a beard for religious reasons, was transferred from full-duty to light duty because OSHA regulations preclude firefighters with beards from wearing close fitting respirators. The court held that NYFD cannot be held liable for failing to offer an accommodation that is expressly prohibited by federal law.

Vegetarian Leafleter Loses Suit Against Police and City

In a Sept. 24, 2021 Order, a Louisiana federal district court accepted the recommendation set out in the magistrate judge's opinion in Hershey v. City of Bossier City, (WD LA, Aug. 23, 2021), and dismissed a suit against the city and two police officers. At issue was police conduct in ordering plaintiff to stop distributing leaflets on a public sidewalk outside an arena at which a Christian rock concert was being held. Plaintiff was distributing literature from the Christian Vegetarian Association. The court held that plaintiff had adequately alleged that the police were given unbridled discretion and engaged in viewpoint discrimination. However the court dismissed plaintiff's claims, summarizing its reasons in part:

[T]he city police officers are entitled to dismissal based on qualified immunity because Plaintiff has not made an adequate showing of clearly established law in the context of this case. The City of Bossier City is entitled to dismissal because the amended complaint does not allege sufficient facts to plead an actionable Monell claim of municipal liability.

Supreme Court Grants Certiorari In Case On Display of "Christian Flag" At City Hall

The U.S. Supreme Court today granted review in Shurtleff v. City of Boston, (Docket No. 20-1800, certiorari granted 9/30/2021) (Docket List). In the case, the U.S. 1st Circuit Court of Appeals upheld the city of Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. (See prior posting.) The SCOTUSblog case page with links to all the briefs and pleadings is here.

Huntsman's Fraud Claim Against Mormon Church Dismissed

In Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (CD CA, Sept. 10, 2021), a California federal district court dismissed a fraud suit brought by James Huntsman against the LDS Church. Huntsman, a prominent LDS Church member, alleged that the Church falsely claimed that no tithing funds would be used in its development of commercial real estate in Salt Lake City. Huntsman claims this was false because the Church used earnings on invested tithing funds for the project. First the court held that the church autonomy doctrine does not require dismissal of the case because the dispute is purely secular. It does not involve an analysis of Church policy or doctrine. However, the court concluded that no reasonable juror could conclude that defendant made a misrepresentation. The President of the Church, while stating that no tithing funds would be used, added that earnings of invested reserve funds will be used. The court also rejected a fraud claim relating to a second project. A Notice of Appeal of the decision to the 9th Circuit has been filed.

Court Says Objections To Mask Requirement Were Not Sincerely Held Religious Beliefs

 In Geerlings v. Tredyffrin/ Easttown School District, (ED PA, Sept. 27, 2021), a Pennsylvania federal district court refused to issue a preliminary injunction sought by parents of four students who claim that the students are entitled to religious exemptions from a school district's COVID-19 mask requirement. The court held that none of the plaintiffs demonstrated a "sincere religious belief". In each case the court concluded either that the asserted beliefs were not sincerely held or were not religious in nature.  The court described the asserted beliefs of each plaintiff:

Ms. Marvin believes people are made in the image of God and it therefore dishonors God to cover our faces....

Ms. Geerlings believes the body is a temple and must not be harmed, and in her view, masks violate the prohibition on harming the body because they are unhealthy....

Mr. Governanti came to believe that he must not harm his daughter, which, in his view, means he must not allow his daughter to wear a mask....

Mr. McLellan believes God intervened in his life to save him from certain trauma, and that masks are a mockery of the gift of life because they cover what makes us human and show a lack of gratitude to the creator.

Court Says U.S. Engaged In Vindictive Subsequent Prosecution of Defendants Originally Charged With Female Genital Mutilation

In United States v. Nagarwala, (ED MI, Sept. 28, 2021), a Michigan federal district court dismissed witness tampering charges against defendants (medical personnel and mothers of minor girls in the small, Indian-Muslim Dawoodi Bohra community) who were originally charged with violating the federal statute banning female genital mutilation. In 2018, the court held that the FGM statute was unconstitutional as exceeding Congress' interstate commerce and treaty powers. (See prior posting.) Subsequently, the government unsuccessfully attempted to convict defendants under superseding indictments, including an indictment for travel with intent to engage in illicit sexual conduct. The court now holds that the latest superseding indictment charging witness tampering was a vindictive prosecution brought in retaliation for defendants asserting their rights. MLive reports on the decision.

Court Enjoins Arizona's Ban On Abortions Because Of Fetal Abnormalities

 In Isaacson v. Brnovich, (D AZ, Sept. 28, 2021), an Arizona federal district court granted a preliminary injunction against enforcement of provisions in an Arizona law that prohibit medical personnel from performing an abortion knowing that the reason the abortion is sought is solely because of a genetic abnormality of the fetus.  It also bans knowingly soliciting or accepting money to finance an abortion because of a genetic abnormality of the child.  The court concluded that the law "does not offer workable guidance about which fetal conditions" are covered by the law, and is unclear about when a doctor or others will be deemed to know or believe what is in the mind of a patient.  The court concluded in part:

Plaintiffs are likely to succeed on their claims that the Reason Regulations are unconstitutionally vague and unduly burden the rights of women to terminate pre-viability pregnancies.

The court refused to enjoin another portion of the law that broadly calls for interpreting other state laws to cover rights of the unborn. Axios and AP report on the decision.

Britain's Court of Appeal Rejects Christian Agency's Ban On Same-Sex Couples Becoming Foster Parents

In The Queen (On the Application of Cornerstone (Northeast) Adoption and Fostering Services, Ltd. v. Her Majesty's Chief Inspector of Education, Children's Services and Skills (OFSTED), (EWCA, Sept. 24, 2021), England's Court of Appeal held that Cornerstone, a Christian foster care agency, violated the Equality Act 2010 and the Human Rights Act 1998 when it required clients with which it placed children to:

Set a high standard in personal morality which recognises that God's gift of sexual intercourse is to be enjoyed exclusively within Christian marriage; abstain from all sexual sins including immodesty, the viewing of pornography, fornication, adultery, cohabitation, homosexual behaviour and wilful violation of your birth sex.

The court said in part:

The detrimental impact on society and on individuals of discrimination on the ground of sexual orientation has led the law to set a demanding standard of justification.... [W]e should be slow to accept that prohibiting fostering agencies from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion....

... [T]here can be no doubting the value of its work or the sincerity of [Cornerstone's] motives. However, in order to justify a policy of this nature, it needed to provide credible evidence that there would otherwise be a seriously detrimental impact on carers and children. The evidence it actually advanced did not go beyond the level of general assertion.... [W]hile I would not rule out the possibility of an organisation in this position putting up a substantial evidence-based case on justification, Cornerstone simply did not do that....

[Thanks to Law & Religion UK for the lead.]

Russia Labels Church of Scientology As "Undesirable" Organization

As reported by the Moscow Times, last Friday the General Prosecutor's Office of the Russian Federation designated the Church of Scientology as non-governmental organizations that are "undesirable" in the territory of the Russian Federation. (Press Release in Russian). The designation applies to both the World Institute of Scientology Enterprises and the Church of Spiritual Technology (L. Ron Hubbard Library). According to the Moscow Times:

Under the law, participants in “undesirable” groups' activities can be punished by up to four years in prison and organizers can receive up to six years.

Since 2007, the Russian government has taken various moves against the Moscow and St. Petersburg branches of Scientology.

British Court Says Fetus Has No Rights Under European Convention On Human Rights

In The Queen (on the Application of Crowter) v. Secretary of State for Health and Social Care, (EWHC, Sept. 23, 2021), a 2-judge High Court panel in Britain rejected an attack on provisions in the Abortion Act 1967 that permit late-term abortions where "there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped...." This has been interpreted to include Down syndrome fetuses. The court rejected claims that this provision violates various provisions of the European Convention on Human Rights. The court said in part:

the European Court has never decided that a foetus, even one post-viability, is the bearer of Convention rights.... To the contrary, it has been content to leave the controversial and difficult issue of when life begins to the margin of appreciation of Contracting States. The fact that both domestic legislation and courts, and the European Court itself, have recognised that there may be circumstances in which the foetus has interests which the State is entitled to protect does not lead to the proposition that it enjoys rights under Article 2.

The court also issued a press summary of the case. Law & Religion UK also reports on the decision.

Recent Articles of Interest

 From SSRN:

• Linda C. McClain, Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing 'Armies of Compassion' 2.0?, (Family Court Review (Forthcoming)).
• Jeffrey A. Redding, Kashmir and Transgender Rights, (National Law School of India Review (2020)).
• Wendy K. Mariner, Shifting Standards of Judicial Review during the Coronavirus Pandemic in the United States, (22 (6) German Law Journal 1039-1059 (2021).
• Thomas McMahon, The Great Commission, Papal Bulls and the Doctrine of Discovery: from the 4th Century to Current Law, (August 26, 2021).
• Josh Blackman, The Irrepressible Myth of Jacobson v. Massachusetts, (Buffalo Law Review Vol. 70, No. __).

From SmartCILP:

• Leslie Gielow Jacobs, Protecting Women's Rights by Keeping Religious Liberty in Its Lane, 59 Duquesne Law Review 54-105 (2021).
• Kyle C. Velte, The Nineteenth Amendment as a Generative Tool for Defeating LGBT Religious Exemptions, 105 Minnesota Law Review 2659-2724 (2021).

San Marino Voters Approve Legalizing First Trimester and Certain Other Abortions

In a referendum yesterday, citizens of the tiny, predominately Catholic European nation of San Marino approved legalization of abortion.  According to AP:

Some 77% of voters approved a referendum proposal calling for abortion to be legal in the first 12 weeks of pregnancy.... Abortion would also be legal beyond that point if the woman’s life is in danger or if her physical or psychological health is at risk because of fetal anomalies or malformations.

With the “yes” votes winning, San Marino’s Parliament must now draft a bill to legalize the procedure. Turnout for the referendum was 41% in the microstate of 33,000 people surrounded by Italy.

3rd Circuit Hears Arguments On School's Presentation of Material On Islam

On Sept. 23, the U.S. 3rd Circuit Court of Appeals heard oral arguments in Hilsenrath v. School District of the Chathams (audio of full oral arguments). In the case, a New Jersey federal district court held that the Chathams' 7th grade World Cultures and Geography course presentation of material about Islam did not violate the Establishment Clause. (See prior posting.) Courthouse News Service reports in detail on the oral arguments, saying that the judges "posed tough questions to both sides." [Thanks to Scott Mange for the lead.]

No Violation In Refusing To Accommodate Prosecutor's Religious Request For Permanent Remote Work

In Leone v. Essex County Prosecutor's Office, (D NJ, Sept. 23, 2021), a New Jersey federal district court ruled against an assistant prosecutor in the Essex County Prosecutor's Office who sought a religious accommodation that would allow him to continue to work from home indefinitely as pandemic remote-work schedules were phased out. Plaintiff claims that his religion "'requires him to pray, including aloud and spontaneously, throughout each day,' preferably in his backyard to access 'peace and solitude.'" Plaintiff rejected numerous proposed accommodations that would allow him to pray while at his office. The court applied rational basis review to plaintiff's 1st Amendment claim, concluding that defendants had articulated "a myriad of reasons" justifying their denial of plaintiff's requested accommodation. It also concluded that there had not been a violation of the New Jersey Law Against Discrimination.

Zoning Ordinance Violates Equal Terms Provision of RLUIPA

In The Church at Jackson v. Hinds County, Mississippi, (SD MS, Sept. 23, 2021), a Mississippi federal district court held that the equal terms provision of the Religious Land Use and Institutionalized Persons Act is violated by provisions on Agricultural Districts in Hinds County's zoning ordinance. The court issued a preliminary injunction, holding that the ordinance treats religious assemblies on less than equal terms with nonreligious assemblies, specifically recreational facilities. Recreational facilities are permitted unconditionally to locate in areas zoned Agricultural, while religious institutions are required to obtain a Special Use Permit in order to do so.

Supreme Court Review Sought By Christian Wedding Website Designer

A petition for certiorari (full text) was filed today with the U.S. Supreme Court in 303 Creative LLC v. Elenis, (Sup. Ct., filed 9/24/2021). In the case, 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 Christian religious reasons refuses to create websites that celebrate same-sex marriages. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

Ukrainian Parliament Outlaws Antisemitism

 JTA reports that the Ukrainian Parliament on Wednesday passed a law banning "antisemitism and its manifestations."  The vote was 283- 6 with 40 abstentions and 33 not present. (Legislative history). According to JTA:

The Law on Prevention and Counteraction to Anti-Semitism in Ukraine defines antisemitism as “a certain perception of Jews, expressed as hatred of Jews.” It lists examples of this, including Holocaust denial and “calling for, concealing or justifying the killing or harm of persons of Jewish origin.” 

The law must still be signed by Ukrainian President Volodymyr Zelensky, who is Jewish.

Rules On Religious Workers' Visas Upheld

In Salesian Society, Province of St. Philip the Apostle, Inc. v. Mayorkas, (D DC, Sept. 22, 2021), the D.C. federal district court dismissed a challenge to the requirements to qualify for religious workers' special immigrant visas. At issue is the requirement that the immigrant will be working in a compensated position in the U.S., and that they worked in a compensated position (or provided their own support) for the two years prior to filing for a visa.  Roman Catholic Salesian Brothers take a vow of poverty. Rejecting plaintiffs' 1st Amendment free exercise challenge, the court said in part:

Plaintiffs object to USCIS’s categorization of the support paid on their behalf for living and other expenses as “non-salaried compensation,” asserting that requiring them to provide corroborating evidence that such support is paid on their behalf would cause them to “lie” because, due to their vow of poverty, “[t]he Salesians do not compensate their ministers.” ... But Plaintiffs have not explained how USCIS’s categorization of the support provided to them as “non-salaried compensation” has “put substantial pressure on [them] to modify [their] behavior and to violate [their] beliefs.”

The court also rejected Establishment Clause and RFRA challenges.

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.