Religion Clause

Wednesday, November 24, 2021

Free Exercise Challenge To Mandate For Masks On Public Transit Is Rejected

In Mahwikizi v. Centers for Disease Control & Prevention, (ND IL, Nov. 22, 2021), an Illinois federal district court refused to issue a preliminary injunction against enforcement of the federal COVID-19 requirement that people wear masks on public transit. Plaintiff who is a Catholic rideshare driver contended that "the mandate requires him to leave maskless passengers on the side of the road in violation of Christian teachings about the Good Samaritan." The court rejected plaintiff's free speech argument, saying in part:

Giving rides to maskless passengers isn’t speech; it is conduct. And conduct does not suddenly become speech simply because the person engaging in it intends to express an idea.

It rejected plaintiff's free exercise argument because it found that the mandate is a neutral law of general applicability that is subject only to rational basis review. In response to plaintiff's hybrid rights claim, the court said in part:

But “a plaintiff does not allege a hybrid rights claim entitled to strict scrutiny analysis merely by combining a free exercise claim with an utterly meritless claim of the violation of another alleged fundamental right.”

11th Circuit Rejects Nuclear Protesters' RFRA Defense

In United States v. Grady, (11th Cir., Nov. 22, 2021), the U.S. 11th Circuit Court of Appeals upheld the convictions of three members of the Plowshares movement, a Catholic protest organization opposed to nuclear weapons. Defendants were convicted for their illegal entry onto a Naval submarine base that was followed by a religious "symbolic disarmament" protest. The court rejected defendants' argument that their indictments should have been dismissed under the Religious Freedom Restoration Act, saying in part:

In this case, the parties agree that the defendants were exercising sincerely held religious beliefs, the government substantially burdened the defendants’ religious exercise, and the government has a compelling interest. Accordingly, the fourth prong in the RFRA analysis is the only prong in dispute in this appeal—whether the government met its burden of demonstrating that criminal prosecution of the defendants was the least-restrictive means of furthering its significant compelling interests in the safety and security of the naval base, naval base personnel, and naval base assets....

[I]n order to be a viable least-restrictive means for purposes of RFRA, the proposed alternative needed to accommodate both the religious exercise practiced in this case— unauthorized entry onto the naval base and destructive actions, including spray painting monuments, doors, and sidewalks, pouring human blood on doors and other areas, hammering on a static missile display, hanging banners and crime scene tape, as well as removing and partially destroying signage and monuments around the naval base—and simultaneously achieve the government’s compelling interests in the safety and security of the naval base, naval base assets, personnel, and critical operations....

[N]othing in RFRA supports destructive, national-security-compromising conduct as a means of religious exercise.

Tuesday, November 23, 2021

Court Defers Ruling On Military's Actions On Religious Exemption Requests From Vaccine Mandate

In Seal I v. Biden, (MD FL, Nov. 22, 2021), a Florida federal district court, after a lengthy discussion of free exercise protection under the 1st Amendment and RFRA, deferred until at least Jan. 7, 2022, ruling on a motion for a preliminary injunction sought by service members seeking religious exemptions from the federal government's COVID vaccine mandate for members of the military. According to the court:

[P]laintiffs claim the regulations — governing in each respective branch the availability of a religious exemption from the COVID vaccine and purporting to comply with the demands of RFRA — in reality disguise an unlawful and pervasive policy of the Secretary of Defense and each branch of the armed forces to deny individual consideration of each claim for a religious exemption, to instead “deny them all,” and to punish, possibly by discharge, without exemption and without accommodation, those who assert a sincere religious objection and accordingly refuse the vaccine....

[T]he data produced by the defendants show that more than 16,643 requests for a religious exemption pend. The military has granted no exemptions but has denied hundreds. This disparity, although susceptible to a benign explanation is, as well, susceptible to an explanation actionable and remediable under RFRA.

The court ordered each branch of the armed forces, beginning Jan. 7, 2022, to file bi-weekly reports on the number of exemption requests and the number granted, as well as on the number of service members court martialed after the denial of a religious exemption. Liberty Counsel issued a press release announcing the decision.

6th Circuit Affirms Dismissal of Minister's Hostile Work Environment Claim

In Middleton v. United Church of Christ Board, (6th Cir., Nov. 22, 2021), the U.S. 6th Circuit Court of Appeals affirmed the dismissal of a Title VII racial discrimination suit brought by a minister claiming an anti-Black hostile work environment. The three-judge panel unanimously agreed that while plaintiff may have been treated badly, it did not rise to the level of a hostile work environment. Two of the judges (Boggs and Larsen, JJ) went on to hold:

[T]he ministerial exception bars any judicial consideration of a church’s tangible employment actions taken against a minister in a discrimination claim, regardless of its underlying basis.... Otherwise, the church would be required to respond that its tangible employment actions were motivated not by discriminatory animus, but by nondiscriminatory reasons.... [T]he court would then be required to conduct a pretext inquiry to determine the church’s true motivation. This would involve an examination of the church’s reasons for determining the fitness and qualifications of its ministers—a determination necessarily informed by religious belief. This is precisely the kind of state inquiry into church employment decisions that the First Amendment forbids.

Judge Moore in a concurring opinion argued that the court need not reach the ministerial exception issue. [Thanks to Heather Kimmel for the lead.]

State Department Designates "Countries of Particular Concern" For Violating Religious Freedom Rights

Last week, in a little noticed move, pursuant to the International Religious Freedom Act the U.S. State Department published this year's designation of countries and non-state actors that are major violators of religious freedom. In a statement, Secretary of State Blinken said:

I am designating Burma, the People’s Republic of China, Eritrea, Iran, the DPRK, Pakistan, Russia, Saudi Arabia, Tajikistan, and Turkmenistan as Countries of Particular Concern for having engaged in or tolerated “systematic, ongoing, and egregious violations of religious freedom.” I am also placing Algeria, Comoros, Cuba, and Nicaragua on a Special Watch List for governments that have engaged in or tolerated “severe violations of religious freedom.” Finally, I am designating al-Shabab, Boko Haram, Hayat Tahrir al-Sham, the Houthis, ISIS, ISIS-Greater Sahara, ISIS-West Africa, Jamaat Nasr al-Islam wal-Muslimin, and the Taliban as Entities of Particular Concern.

Many of the designations are the same as last year, except that Russia was moved from the Special Watch List to become a Country of Particular Concern (CPC) and Nigeria was placed on the Special Watch List instead of being designated a CPC. Also the State Department noted "The Taliban’s designation is based on information analyzed as of August 15, 2021." As is often the case, the State Department's designations vary to some extent from the recommendations of the U.S. Commission on International Religious Freedom.

Monday, November 22, 2021

RFRA Defense Precluded In Prosecution of Tribal Member For Violating Closure Order

In United States v. Ortega, (D AZ, Nov. 18, 2021), an Arizona federal district court, ruling on the government's motion in limine to preclude a defense under the Religious Freedom Restoration Act in the prosecution of a member of the Tohono O’odham Nation for violating a closure order at the Organ Pipe Cactus National Monument, said in part:

There was no evidence presented that proved that the government interfered with Ms. Ortega’s prayers or ceremony at Quitobaquito Springs on 9/9/20, other than the distant sound of the heavy machinery. Ms. Ortega left the springs where she was praying and entered the closed construction area. The park rangers advised Ms. Ortega that the area under construction was closed to the public and she was instructed to leave, or she would be arrested.

Ms. Ortega was disturbed by the destruction and desecration of the land near the springs. She was spiritually wounded by the knowledge that the border wall was going to interrupt access of tribal members to their ancestral lands and that important medicinal plants would be destroyed. Construction of the border wall raised painful memories of the harms suffered by native people at the hands of the government throughout history. Ms. Ortega’s testimony was emotional and heartfelt. There is no question that her suffering is genuine and is rooted in her sincerely held religious beliefs. However, the defense was unable to prove that on 9/9/20 the closure order and the ranger’s lawful order that Ms. Ortega leave the construction zone imposed a substantial burden on her ability to engage in her religious activities.

School's Vaccine Mandate Without Religious Exemptions Upheld

In Doe v. San Diego Unified School District, (SD CA, Nov. 18, 2021), a California federal district court denied a temporary restraining order in a suit by a high school student and her parents objecting to the school district's COVID vaccine mandate which did not provide for religious exemptions. The court held that the scope of the injunction sought by plaintiff created standing issues, but regardless of that:

In light of the overwhelming weight of authority upholding vaccination requirements in response to free exercise challenges, the Court finds that Plaintiffs are not likely to succeed on the merits of their claim.

Thomas More Society has more background on the case.

Magistrate Recommends Dismissing Religious Objections To School's Teaching Transgender Understanding

In Jones v. Boulder Valley School District RE-2, (D CO, Oct. 4, 2021), a Colorado federal magistrate judge recommended dismissing a suit by parents of three elementary school students who contended that their free exercise and equal protection rights, as well as their parental rights to control the upbringing of their children, were violated when the school instituted a program to teach tolerance and understanding of transgender individuals that conflicted with the parents religious beliefs.

Plaintiffs ... emphasize that all they want is proper advance notice and the ability to opt-out of transgender programming as provided for by Colorado law.... The problem is that the federal constitution does not mandate advance notice or the ability to opt out of particular classes or programs, and especially not from particular classroom discussions. The federal constitution protects religious children and families by ensuring that a state cannot punish them if they choose to educate their children outside the public system, whether at home or at areligious school. But the federal constitution gives parents no First Amendment or due process right to direct to what is taught in the schools based on their own personal religious beliefs, nor does the federal constitution mandate the right to a religious "opt-out" option from particular classes or specific programming. From the federal constitutional perspective ..., it is up to the local school district to decide what is taught and at what age....

A Notice of Settlement was filed with the court on Nov. 15, and the case was terminated.

Sunday, November 21, 2021

Humanist Association Releases 2021 Freedom of Though Report

Last week, the American Humanist Association and Humanists International announced the release of the 2021 Freedom of Thought Report. The press release reads in part:

The 2021 Freedom of Thought report details the risks faced by nonreligious individuals around the world. The focus is on state-imposed discrimination, defined as systemic, legal, or official forms of restrictions on freedom of thought, belief, and expression.

The report sharply criticizes Saudi Arabia, Iran, Pakistan, and Afghanistan, as well as other countries, for grave violations against the rights of nonreligious people, including the enforcement of blasphemy laws, religious or ideological indoctrination in schools, and more. The 2021 report includes consideration of recent developments in Myanmar and Uruguay as well.

Saturday, November 20, 2021

141 Amicus Briefs Filed In Mississippi Abortion Law Case

Oral arguments in Dobbs v. Jackson Women’s Health Organization, the much-watched Mississippi abortion case, will be heard by the Supreme Court on December 1. A near-record number of amicus (friend-of-the-court) briefs have been filed in the case-- 141 in total on the merits. Links to nearly all of the briefs are available on the SCOTUS blog case page for the case. A 2020 National Law Journal article says that the record for number of amicus briefs in one Supreme Court case is 156.

Friday, November 19, 2021

European Court Dismisses Challenges To Irish Constitution's Religious Oaths

In Shortall v. Ireland, (ECHR, Nov. 18, 2021), the European Court of Human Rights dismissed as inadmissible a suit filed by several politicians in Ireland complaining that the Irish Constitution requires the President and members of the Council of State to take oaths containing religious language, without a secular alternative. The court concluded that none of the litigants were directly affected by the challenged provisions:

[N]one of the applicants have so far been invited to serve on the Council of State, and none claimed that such an appointment was under consideration....

[T]he applicants have not provided any evidence – or even sought to argue – that they could secure the nomination required to stand for election as President.... [T]he applicants ... are seeking to have their victim status accepted, not in the context of a clear, immediate and compelling factual matrix which would allow them to adduce reasonable and convincing evidence that they are at a real risk of being adversely affected by the impugned measure, but rather as a hypothetical outcome, without addressing the very many challenges they would potentially have to overcome to secure that office.

The Court also issued a press release summarizing the decision.

HHS Rescinds Trump Era Religious Exemptions For Child Welfare Agencies In Three States

Yesterday, the Department of Health and Human Services announced that it is rescinding waivers of non-discrimination requirements issued during the Trump Administration to South Carolina, Texas and Michigan, along with certain child welfare agencies in those states. The waivers allowed faith-based foster care placement agencies to receive federal funds even though they select foster parents on the basis of religion. (See prior posting.) In its release yesterday, HHS summarized the background for its action:

Through these waivers, States and child welfare agencies – including States and organizations that did not make such requests - were granted exemptions from program nondiscrimination requirements in a rule that was not in effect. In taking today's actions, HHS is reestablishing its long-standing Department practice of evaluation of religious exemptions and modifications of program requirements on a case-by-case basis, as needed, and as is required by law—which was unprecedently changed in 2017 by the previous Administration. Today, HHS reaffirms its important commitment to core American values: HHS will not condone the blanket use of religious exemptions against any person or blank checks to allow discrimination against any persons, importantly including LGBTQ+ persons in taxpayer-funded programs.

Settlement Agreement Reached In Arleen's Flowers LGBT Discrimination Case

ADF announced yesterday that a settlement agreement (full text) has been reached in the long-running Arleen's Flowers litigation. In the case, the Washington state Supreme Court held that a florist shop's refusal to provide flowers for a same-sex wedding constitutes sexual orientation discrimination under the Washington Law Against Discrimination, and that enforcement of the law does not violate the constitutional rights of the floral shop owner. In July, the U.S. Supreme Court denied review (see prior posting). According to ADF:

A settlement agreement ... ends a lawsuit brought against floral artist Barronelle Stutzman nearly a decade ago without forcing her to act against her religious beliefs or to pay potentially ruinous attorneys’ fees.... Stutzman has chosen to retire so her beloved employees can run her business, Arlene’s Flowers. She will withdraw a pending petition for rehearing at the U.S. Supreme Court and make a payment of only $5,000 to the two men who sued her.

Stutzman, 77 and a great-grandmother, explained that she is at peace because the settlement allows her to finally retire with her conscience intact, and she knows that the legal effort to protect the artistic freedoms of creative professionals will continue in cases like 303 Creative v. Elenis, which the U.S. Supreme Court could decide to hear soon.

Tri-City Herald reports on the settlement.

9th Circuit Hears Oral Arguments In Ministerial Exception Case

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Orr v. Christian Brothers High School. As reported by Law & Crime, at issue in the case is "whether a California Catholic school can use the “ministerial exception” to shield itself from claims of racial discrimination by its former principal."

8th Circuit: Buddhist Inmate Not Entitled To Separate Soto Zen Services

In Erdahl v. Pirc, (8th Cir., Nov. 18, 2021), the U.S. 8th Circuit Court of Appeals held that a Buddhist inmate's religious exercise was not substantially burdened by denying him separate Soto Zen religious services. He already can attend existing Buddhist services conducted by the minister he wanted for his separate services. The court concluded:

In the end, the prison only has to provide “a reasonable opportunity” for Erdahl to practice his faith.

Imam Lacks Standing To Challenge Alabama Execution Exclusion

In Maisonet v. Dunn, (SD AL, Nov. 17, 2021), an Alabama federal magistrate judge recommended dismissing for lack of standing a suit by an imam who has previously ministered to inmates on Alabama's death row. Plaintiff challenges Alabama's new execution protocol which bars all religious advisors from the execution chamber. The magistrate judge said in part:

The allegation that "ADOC will continue to enforce a policy of excluding religious advisors—including Imam Maisonet—from the execution chamber" ... is insufficient because the Court has already held that Maisonet does not have a constitutionally protected right to be present in the execution chamber and because there is no allegation, for example, that Maisonet plans to attend a specific execution or that any inmate desires to have Maisonet attend an execution. Although Maisonet alleges that he "remains committed to providing religious support and guidance to the Muslims on Alabama's death row" ..., a commitment to religious support and guidance does not establish a certainly impending injury....

[T]he third-party inmates on Alabama's death row could assert their own rights and, in fact, have done so in appeals all the way to the United States Supreme Court. "It is the inmates, not [Maisonet], who have standing to pursue the primary claim he articulated."

Thursday, November 18, 2021

Native American Parents Can Move Ahead With Suit Challenging School's Cutting of Children's Hair

In Johnson v. Cody-Kilgore Unified School District,(D NE, Nov. 10, 2021), a Nebraska federal district court allowed Native American parents (members of the Rosebud Sioux tribe) who practice traditional Lakota religious traditions to move ahead with several of their claims growing out of the school's cutting of their children's hair as part of a lice check. The school's cutting and disposing of the hair violates Lakota tradition. Plaintiffs claim that the school had an unwritten policy of cutting hair during lice checks that only applied to Native American students. The court allowed plaintiffs to proceed with their free exercise and Title VI racial discrimination claims. The court however dismissed plaintiffs' 14th Amendment parental rights claim. The Reader reports on the decision.

New Poll On American's Attitudes Toward Religious Freedom Released

Becket yesterday released its third annual Religious Freedom Index (full text) along with a one-page summary of the full 122-page report. Becket's press release describes the report, in part:

... Religious Freedom Index [is] the only annual poll that tracks trends across the full spectrum of opinions on American religious freedom. This year’s Index reached a new high as Americans bounced back from a uniquely divisive year with revitalized support for religious liberty. In addition to the Index’s standardized annual questions, this year Becket also asked about Americans’ opinions on faith-based organizations, free speech, and the pandemic.

Wednesday, November 17, 2021

New Orleans Archdiocese Settles False Claims Act Lawsuit

The Department of Justice announced this week that in a settlement of a False Claims Act lawsuit that was originally brought by a whistleblower, the Catholic Archdiocese of New Orleans has agreed to pay the federal government more than $1 million in damages. (Full text of Settlement Agreement). The whistleblower will receive nearly $200,000. The lawsuit alleges that the Archdiocese knowingly submitted false claims to FEMA for repair or replacement of facilities damaged by Hurricane Katrina. This included damage to a nonexistent central air conditioning unit and misstatement of the sized of a facility. The settlement was approved last month by the U.S. Bankruptcy Court handling the Archdiocese's bankruptcy reorganization. National Catholic Register reports on the settlement.

9th Circuit Hears Arguments On Destruction of Native American Sacred Site

Yesterday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in Slockish v. U.S. Department of Transportation. The facts of the case involving land near Mount Hood in Oregon are described in appellants' opening brief (full text) in part as follows:

Plaintiffs are members of federally-recognized tribes who long practiced their faith at a small sacred site called Ana Kwna Nchi Nchi Patat, or the “Place of Big Big Trees.”.... In the 1980s, when the Government proposed widening a nearby highway, one of Plaintiffs’ leaders informed the Government of the site’s historic and religious significance, including the graves and stone altar. In response, the Government modified its project to protect the site. But in 2008, the Government widened the highway again to add a center turn lane. This time, it protected a nearby wetlands, but completely destroyed the sacred site—cutting down the old-growth trees, bulldozing the burial ground and stone altar, and covering the area under a massive earthen berm.

Becket Law issued a press release on the case. (See prior related posting.)

U.S. House Committee Hears From Faith Leaders On Economic Issues

On Monday, the U.S. House Committee on Economic Disparity & Fairness In Growth held a Bipartisan Economic Roundtable with National Faith Leaders (video of Roundtable). The hearing was designed to explore the economic needs of religious communities, as well as faith-based initiatives and neighborhood partnerships centered around economic justice and development. A list of faith leaders who were involved in the roundtable is available at the Committee's website.

Tuesday, November 16, 2021

Religious Pre-Schools Seek Exemption From Non-Discrimination Laws To Participate In "Build Back Better" Funding

New York Times yesterday reported that Catholic and Orthodox Jewish groups are lobbying hard for changes in President Biden's proposed Build Back Better Act. They seek to have drafters remove language which would apply nondiscrimination provisions to religiously affiliated prekindergarten and child care facilities. The bill as now drafted treats facilities that would accept child care vouchers issued to families as direct recipients of federal funding:

[Present provisions] could bar federal funds from going to programs that refused to hire a gay employee, gave preference to applicants of their faith or failed to renovate their facilities to accommodate disabled students....

The United States Conference of Catholic Bishops and the Orthodox Union ... have made the case to members of Congress that they could not accept money to run preschool or child care programs unless the bill expressly exempts them from anti-discrimination laws, such as Title IX, which protects against discrimination by sex, and the Americans With Disabilities Act, which they argue could require costly upgrades to old buildings, including houses of worship.

Monday, November 15, 2021

Cert. Denied In Challenge To Oregon's Limits On Parochial Schools

The U.S, Supreme Court today denied review in Horizon Christian School v. Brown, (Docket No. 21-567, certiorari denied 11/15/2021). (Order List). In the case, the U.S. 9th Circuit Court of Appeals in an Aug. 2 opinion (full text) affirmed the denial of a preliminary injunction against Oregon's previous COVID-19 restrictions on in-person schooling. The suit was brought by parents of students who attend religious schools. (See prior related posting.)

Saturday, November 13, 2021

Conditions Of Special Use Permit For Church Upheld

In Alive Church of the Nazarene, Inc. v. Prince William County, Virginia, (ED VA, Nov. 10, 2021), a Virginia federal district court dismissed a suit brought by a church that sought to use its property for religious gatherings even though it could not yet afford to comply with conditions of its special use permit. The church was presently using space elsewhere in a farm winery/ brewery for religious services. It attempted to circumvent the special use permit requirements by obtaining approval to grow fruit trees and make non-alcoholic apple cider on its own property. However zoning authorities said that structures not associated with that agricultural use were not permitted, and that use of present structures for events such as wedding receptions would be allowed only if the church obtained a liquor license-- which the church refused to do because of its opposition to alcohol. The court rejected the church's RLUIPA, Free Exercise, Freedom of Assembly and Equal Protection challenges.

Friday, November 12, 2021

Lev Tahor Sect Leaders Convicted Of Kidnapping and Sexual Exploitation of Minors

The U.S. Attorney's Office for the Southern District of New York announced on Wednesday that a federal court jury has convicted two leaders of the fundamentalist Jewish Lev Tahor sect on kidnapping and sexual exploitation charges:

The defendants, leaders of an extremist Jewish sect called Lev Tahor, masterminded a scheme to kidnap a 14-year-old girl (“Minor-1”) and a 12-year-old boy (“Minor-2”) from their mother in Woodridge, New York. The defendants then smuggled the children across the U.S. border to Mexico, where they reunited Minor-1 with her adult “husband” to allow him to continue his illegal sexual relationship with Minor-1.

The Forward reports on the convictions.

Transgender Students Sue Their High School For Gender Recognition

Suit was filed in an Indiana federal district court this week by two transgender male high school students against their school. The complaint (full text) in B.E. and S.E. v. Vigo County School Corp., (SD IN, filed 11/8/2021) alleges in part:

Defendants’ failure to recognize the plaintiffs as male and to allow them to use male restrooms and the male locker room and to require that they be addressed by the names and pronouns consistent with their male gender violates both the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title IX of the Education Amendments Act of 1972....

Los Angeles Blade reports on the lawsuit.

Thursday, November 11, 2021

Abu Dhabi Adopts Civil Personal Status Law For Non-Muslims

WAM News Agency reported this week that the President of the United Arab Emirates has issued a new law which will govern personal status matters for non-Muslims in the Emirate of Abu Dhabi. According to the report:

The new law applies civil principles in the regulation of family matters, explained [the Abu Dhabi Judicial Department] Under-Secretary, who also announced the establishment by the Judicial Department of the first court dedicated to non-Muslim family matters.

All the procedures of the new court will be bilingual in Arabic and English to facilitate the understanding of judicial procedures by foreigners and to improve judicial transparency.

In detail, the law consists of 20 articles divided into several chapters covering civil marriage, divorce, joint custody of children and inheritance.

Indian Express has more details on the new law's provisions. [Thanks to Scott Mange for the lead.]

6th Circuit Grants En Banc Review Of Catholic School's Challenge To Mask Order

In Resurrection School v. Hertel, (6th Cir., Nov. 10, 2021), the U.S. 6th Circuit Court of Appeals vacated the 3-judge panel opinion and granted en banc review. The panel decision, by a 2-1 vote, upheld Michigan's previous COVID-19 mask order for schools. The court affirmed the denial of a preliminary injunction sought by a Catholic elementary school, concluding that the order was neutral and generally applicable. (See prior posting.) AP reports on yesterday's action by the court.

United Airlines Can Place Employees With Religious Objections To Vaccine On Unpaid Leave

In Sambrano v. United Airlines, Inc., (ND TX, Nov. 8, 2021), a Texas federal district court refused to issue a preliminary injunction to prevent United Airlines from placing on unpaid leave employees who received religious or medical exemptions from United's COVID vaccine mandate. The court said in part:

This Order does not rule on the ultimate merits of this case. Instead, this Order merely rules on Plaintiffs’ request for the extraordinary remedy of a preliminary injunction....

The Court is not insensitive to Plaintiffs’ plight. A loss of income, even temporary, can quickly ripple out to touch nearly every aspect of peoples’ lives, and the lives of their families and dependents. But the Court’s analysis must be guided by the law, not by its sympathy.

Despite the novel facts presented here, the case law is clear that hardships stemming from loss of income are remediable; axiomatically such hardships cannot be called irreparable.

The Hill reports on the decision.

Wednesday, November 10, 2021

6th Circuit: Prison Cannot Just Fail To Respond To Inmate's Religious Requests

In Byrd v. Haas, (6th Cir., Nov. 9, 2021),the U.S. 6th Circuit Court of Appeals reversed a Michigan federal district court's dismissal of RLUIPA, free exercise, equal protection and due process claims brought by an inmate who sought to worship with other inmates of the Ifa faith and to obtain certain religious items for worship. The court said in part:

Between his conversion to the Ifa faith in August 2015 and filing this lawsuit more than two years later, Byrd sent four requests for Ifa group services and nine items that he considers essential to the Ifa faith. These items include, among other things, a straw mat for prayer, herbs, and more beads. How did the Department respond to these requests? It didn’t. Not one made its way to McKee [Deputy Director of the Department of Corrections] for a final decision. And since this lawsuit began, Byrd has filed a fifth request. But the Department hasn’t fully resolved that request either....

... [A] government agency cannot simply end-run judicial review by sitting on its hands and allowing a claimant’s request to languish in a bureaucratic black hole.

Catholic School Parents Lose Challenge To School Mask Requirement

In Resurrection School v. Hertel, (WD MI, Nov. 3, 2021), a Michigan federal district court refused to issue a preliminary injunction against a county health department COVID order requiring (with certain exceptions) all persons in indoor educational settings to wear face coverings. Parents of Catholic school students argued that the order violates their free exercise rights because masks in school inhibit their children's Catholic education. The court said in part:

[Plaintiffs] argue that ... they are likely to succeed on the merits ... because (1) the emergency order targets Catholic and private schools, (2) the emergency order does not pass strict scrutiny ... and (3) the emergency order is not generally applicable because it only applies to schools and not all public spaces. The Court does not find any of these arguments to be persuasive and instead finds that Plaintiffs are not likely to succeed on the merits.

Magistrate Says Texas Pension Participant Lacks Standing To Challenge Israel Boycott Law

In Abdullah v. Paxton, (WD TX, Nov. 8, 2021), a Texas federal magistrate judge recommended dismissing on standing and sovereign immunity grounds a suit by a participant in the Texas Employee Retirement System (ERS) challenging a Texas law that requires ERS to divest fund assets from companies that boycott Israel if divestment can be carried out without harming the value of fund. Plaintiff claims that the divestment requirement violates his free speech, Establishment Clause and due process rights. He also asserts a dormant commerce clause claim. The court said in part:

[A] Declaratory Judgment that Section 808 is unconstitutional and enjoinment of its use would have no effect on Abdullah’s financial interests or his ultimate annuity payments. Abdullah has failed to allege a harm to him that would be redressed by a finding that Section 808 violated his rights. He therefore does not have standing to bring this claim.

Navy's Limits On Religious Exemptions To Vaccine Mandate Are Challenged

New litigation over limited religious exemptions to COVID vaccine mandates continues to arise. This time, 35 members of the U.S. Navy filed suit in a Texas federal district court contending that the Navy's policy of denying exemptions or disqualifying from special operations deployment personnel who claim a religious exemption violates their rights under RFRA and the 1st Amendment, as well as the Administrative Procedure Act. The complaint (full text) in U.S. Navy SEALs 1-26 v. Biden, (ND TX, filed 11/9/2021) alleges a wide variety of religious objections held by various of the plaintiffs who represent Catholic, Protestant and Eastern Orthodox traditions:

60. Plaintiffs believe that receiving a COVID-19 vaccine that was tested, developed, or produced using aborted fetal cell lines would force them to violate their sincerely held religious beliefs by causing them to participate in the abortion enterprise, which they believe to be immoral and highly offensive to God....

63. Multiple Plaintiffs hold to the sincere religious belief that the human body is God’s temple, and that they must not take anything into their bodies that God has forbidden or that would alter the functions of their body such as by inducing the production of a spike protein in a manner not designed by God....

73. Multiple Plaintiffs hold to the sincere religious belief that, upon seeking guidance from God as to whether to receive a COVID-19 vaccine, God instructed them not to do so.

74. One Plaintiff holds to the sincere religious belief that trace animal cells in the COVID-19 vaccines, such as from swine, should not be injected into his body.

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

Bipartisan Infrastructure Bill Provides Grants For Non-Profits To Increase Energy Efficiency

H.R.3684, the bipartisan Infrastructure Investment and Jobs Act, which was passed by Congress last week and now awaits President Biden's signature includes a provision (Sec. 40542) that permits Section 501(c)(3) non-profit organizations to apply for grants of up to $200,000 for materials to make their buildings more energy-efficient. The grants are available for buildings "operated and owned" by a non-profit. Among the criteria to be considered in awarding a grant is "the financial need of the applicant." The bill authorizes a total of $50 million for the program through the year 2026. The Forward reports on these provisions.

Tuesday, November 09, 2021

Supreme Court Hears Arguments On Role Of Chaplain In Execution Chamber

The Supreme Court hears oral arguments this morning in Ramirez v. Collier. In the case, a convicted murderer is suing for permission to have his pastor lay hands on him as he receives a lethal injection and dies. The 5th Circuit, by a vote of 2-1, affirmed a Texas federal district court's refusal to grant a stay of execution. However the Supreme Court granted a stay and scheduled early oral argument in the case. (See prior posting.) Here is the SCOTUS blog case page with links to filings in the case. AP has more background. The oral arguments will be live-streamed here. I will update this post with links to the transcript and audio of the oral arguments when they become available.

UPDATE: Here are links to the transcript and audio of arguments in the case. SCOTUS blog reports on the oral arguments.

Pastor Sues Real Estate Organization Over Ethics Rule On Hate Speech

Suit was filed last week in a Montana state trial court against a local chapter of the National Organization of Realtors by Pastor Brandon Huber who is also a part-time realtor challenging the National Organization's Code of Ethics provision that prohibits realtors from using "harassing speech, hate speech, epithets, or slurs based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity." The Code of Ethics provision applies to all activities of a realtor, not just to those related to real estate transactions.

The complaint (full text) in Huber v. Missoula Organization of Realtors, Inc., (MT Dist. Ct., filed 11/3/2021), states that the Missoula Organization of Realtors has scheduled an ethics hearing for Huber after a complaint regarding his use of language about gays and lesbians. Huber says that his church merely ended its partnership with a summer kid's lunch program when it discovered that LGBTQ Pride inserts that violated the church's religious teachings were included with the lunches. The church instead began its own lunch program, and explained its decision in a letter to its congregation. The complaint alleges that the ethics provision is void for vagueness and that the action by the realtors' organization violates Art. II, Sec. 4 of the Montana Constitution which provides:

... Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.

Volokh Conspiracy reports on the lawsuit.

Labor Department Proposes Rescinding Trump Era's Broad Religious Employer Exemption Rule

The Department of Labor yesterday released a proposal (full text) to rescind a Trump Administration rule (see prior posting) that defined expansively the religious exemption in the agency's rules imposing anti-discrimination requirements on government contractors and subcontractors. Yesterday's Release says in part:

OFCCP believes that the 2020 rule creates a lack of clarity regarding the scope and application of the exemption because ... it misstates the law in key respects. In addition, as a threshold matter, OFCCP has reevaluated the need for the rule. For the 17 years prior to 2020, OFCCP implemented the Executive Order 11246 religious exemption without seeking to codify its scope and application in specific regulatory language....

[T]he 2020 rule creates its own religious employer test, independent of Title VII case law interpreting the identical term. The test adopted in the 2020 rule permits a contractor whose purpose and/or character is not primarily religious to qualify for the Executive Order 11246 religious exemption....

In addition, the 2020 rule retreats from the general principle that qualifying religious employers are prohibited from taking employment actions that amount to discrimination on the basis of protected characteristics other than religion, even if the decisions are made for sincerely held religious reasons....

FCW reports on the proposed rule rescission.

School Must Offer Alternatives To Nursing Students Who Assert Religious Objection To COVID Vaccination Requirement

In Thoms v. Maricopa County Community College District,(D AZ, Nov. 5, 2021), an Arizona federal district court granted a preliminary injunction to two nursing students who sought religious exemptions from the COVID vaccination requirement they faced in order to complete their 3-day clinical rotation. Originally the school required all students to comply with the placement requirements of its most stringent clinical partner, but later modified this for students doing their rotation at a clinic that had less stringent standards. However this did not help plaintiffs since their clinic required universal vaccination with no religious exemptions. The court held that under Arizona's Free Exercise of Religion Act, the school had not shown that it met the compelling interest/ least restrictive means test. It undermined its interest in preventing the spread of COVID by allowing religious exemptions when students were assigned to rotations at clinics which did not mandate vaccination. It also had options such as simulated clinical experiences that could be offered as accommodations. The court applied a similar strict scrutiny analysis to plaintiffs' 1st Amendment free exercise claim, finding that the school's policy is not a generally applicable one since in at least one case the school provided an alternative to in-person clinicals.

Monday, November 08, 2021

Before-School Religious Club Requirement To Play Basketball OK'd

In K.K. & K.K. v. Comer, (ED TN, Nov. 5, 2021), a Tennessee federal district court dismissed a suit brought by the married lesbian mothers of a middle school student challenging a before-school basketball program which allowed students to participate only if they also participated in the Teens For Christ Club. The court dismissed the claim against the Knox County Board of Education, saying in part:

Plaintiff’s allegations only suggest that a policymaker was aware of the existence of the Teens for Christ Club, but Plaintiff’s allegations do not go so far as to make it plausible that a final policymaker was put on notice of ongoing unconstitutional conduct like the alleged condition precedent.

The court also found that plaintiffs had failed to allege sufficient facts to support their claim that the school board failed to adequately train employees.

In addition, the court went on to dismiss the Establishment Clause claim brought against the physical education teacher involved on qualified immunity grounds, saying in part:

Defendant Comer argues that the Court must assume that he was reading from the Bible and proselytizing to voluntary participants of the Teens for Christ Club and simply allowed those participants to shoot basketballs in the gymnasium before school. Lastly, Defendant Comer asserts that while he was allegedly reading from the Bible to the voluntary participants, he was lawfully exercising his own First Amendment rights....

Plaintiff cites to no caselaw clearly establishing that it is patently unconstitutional for a teacher like Defendant Comer to allow a religious school club to use the school gymnasium to shoot basketballs outside of regular school hours.

Supreme Court Will Hear Oral Arguments In FISA And Muslim Surveillance

The U.S. Supreme Court this morning will hear oral arguments in 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. Here is the SCOTUS blog case page with links to all of the filings in the case. The arguments will be streamed live by the Court at 10:00 AM from this link. Al Jazeera has a lengthy report on the background of the case. When the transcript and audio of today's oral arguments become available, I will update this post with links.

UPDATE: Here are links to the transcript and audio of the oral arguments. AP reports on the oral arguments.

Sunday, November 07, 2021

Ministerial Exception Doctrine Requires Dismissal Of Priest's Interference With Contract Claim

In Tracy v. O'Bell, (PA Super., Nov. 5, 2021), a Pennsylvania state appellate court held that the ministerial exception doctrine requires dismissal of a tortious interference with contract suit by Father Tracy, a Catholic priest, against three influential lay members of the Catholic parish which employed Tracy. Tracy alleges that these members made false and defamatory statements to parish members and to the bishop in order to have him removed from his position after he discovered unexplained amounts of parish cash in a file cabinet under defendants' control. The court said in part:

[T]he First Amendment provides special protection to communications regarding the selection and retention of religious ministers.... [O]ur result does not insulate lay people from liability from defamatory statements against clergy. Nor do we deprive clergy of the ability to seek to redress all civil wrongs committed against them by lay people. We have no occasion to address those questions. Appellant’s complaint is very specific—he alleges that Appellees, through their communications with the local bishop and others, sought and successfully procured Appellant’s removal from ministry. Our holding is correspondingly narrow—Appellant’s allegations are inextricably intertwined with his removal from ministry, and therefore the trial court properly sustained Appellees’ preliminary objection based on the ministerial exception.

Friday, November 05, 2021

Greek Top Court Bans Kosher and Halal Slaughter

Last week, Greece's highest administrative court-- the Hellenic Council of State-- in a ruling essentially banned kosher and Halal slaughter of animals in Greece. As reported by Israel Hayom:

The ruling saw the court revoke the standing slaughter permit, which was provided through a ministerial decision that exempted ritual Jewish and Muslim slaughter practices from the general requirement to stun animals prior to killing them.

The ruling further called on Greek lawmakers to devise a way to meet the demands of animal rights advocates and the needs of Jews and Muslims who follow the laws about food in their traditions.

According to the Jerusalem Post:

The reason the court gave for the law being balanced is that it allows for “reversible stunning.”

The court said the law limits one specific aspect of the ritual act of slaughter, not the act of slaughter itself; as such, it does not count as interference with religious practice.

First Ever Scientology Arbitration Award Upheld By 11th Circuit

In Garcia v. Church of Scientology Flag Service Organization, Inc., (11th Cir., Nov. 2, 2021), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, affirmed a district court decision refusing to vacate a arbitration award made under arbitration agreements between the Church of Scientology and two of its former members. After Luis and Maria Garcia were expelled from the Church as "suppressive members", they unsuccessfully sought refunds of their donations and payments. They then sued in federal court seeking $400,000 in damages. The district court compelled arbitration, and the arbitrators awarded the Garcia's only $18,495 in refunds in the first arbitration in the history of the Church of Scientology. The Garcia's unsuccessfully challenged the validity of the arbitration agreement and the conduct of the arbitrators.

On appeal to the 11th Circuit, the majority rejected the argument that the arbitration agreements were procedurally unconscionable because they did not adequately disclose the procedures that would govern the arbitration. The agreements provided that the arbitration would be “conducted in accordance with Scientology principles” by arbitrators who were “Scientologists in good standing with the Mother Church.” They also rejected the claim of substantive unconscionability. The Garcia's argued that Scientology doctrine prevented a fair hearing for suppressive members. The Church disagreed. The court concluded that the 1st Amendment prevents civil courts from resolving disputes about church doctrine.

Judge Rosenbaum dissented, contending in part:

[T]he arbitration agreement is not a valid agreement to arbitrate. Rather, in requiring the Garcias to agree to be governed at arbitration by rules that did not exist and would be devised by the Church and evolve while the arbitration proceeded, the arbitration agreement was as one-sided and unconscionable as an arbitration agreement can be.

News Service of Florida reports on the decision.

4th Circuit: Denial Of Church's Application For Water and Sewer Plan Amendment Violated RLUIPA

In Redeemed Christian Church of God (Victory Temple) Bowie, Maryland v. Prince George's County, Maryland, (4th Cir., Nov. 3, 2021), the U.S. 4th Circuit Court of Appeals held that the legislative amendment to the County’s Water and Sewer Plan which Victory Temple sought to recategorize its property constitutes a "land use regulation" subject to RLUIPA. It also concluded that the denial of Victory Temple's application for a recategorization imposed a substantial burden on its exercise of religion. The court concluded in part:

[T]he County never sought to show at trial that it considered alternatives — such as roadway improvements or additional road signs — before denying the Application. At bottom, we agree with the district court that the County’s denial of the Application fails strict scrutiny review. In these circumstances, the court did not abuse its discretion in granting Victory Temple the injunctive relief that is appealed from.

Thursday, November 04, 2021

From 2nd Circuit To Supreme Court, Fight Over NY's Removal Of Vaccine Religious Exemptions Continues

One day after hearing oral arguments in the cases challenging the elimination of religious exemptions from New York's requirement that health care workers be vaccinated against COVID, the U.S. 2nd Circuit Court of Appeals vacated temporary injunctions that had been issued in We the Patriots USA, Inc. v. Hochul and Dr. A v. Hochul. In its October 29 Order (full text), the 2nd Circuit said that written opinions in the two cases would follow expeditiously. On Nov. 1, petitioners in We the Patriots case filed an Emergency Application (full text) with the U.S. Supreme Court seeking a new injunction while they file a petition for certiorari with the Court. Washington Examiner reports on the filing.

UPDATE: Here is the 2nd Circuit's 50-page opinion supporting its Order rejecting requests for a preliminary injunction. We the Patriots USA, Inc. v. Hochul, (2d Cir., Nov. 4, 2021).

UPDATE2: On Nov. 12, petitioners in the Dr. A case also filed an Emergency Application for an Injunction or in the alternative the granting of certiorari. (Full text of application).

Mississippi City Is Sued Over Refusal To Approve Mosque Site Plan

Suit was filed yesterday in a Mississippi federal district court alleging that the City of Horn Lake denied approval of the site plan for a proposed mosque because of religious animus. The suit alleges violation of various provisions of RLUIPA as well as the 1st Amendment. The complaint (full text) in Abraham House of God and Cemetery, Inc. v. City of Horn Lake, (ND MS, filed 11/3/2021) alleges in part:

Despite the pretextual excuses for their decision, Board members did not work very hard to hide the true reason they denied approval for the project—anti-Muslim prejudice. As then Alderman John E. Jones Jr. told the local newspaper: “I don’t care what they say, their religion says they can lie or do anything to the Jews or gentiles because we’re not Muslims.” In making his motion to reject the mosque’s proposed site plan, Jones ominously warned his fellow Board members, “[I]f you let them build it, they will come. So I think we need to stop it before it gets here.”...

In sum, what should have been an uncomplicated approval of the site plan for the Abraham House of God foundered in a storm of anti-Muslim bias.

ACLU of Mississippi issued a press release announcing the filing of the lawsuit.

Christian Parents Challenge Virginia Ban On Religious Discrimination In Hiring Babysitter

Suit was filed last week in a Virginia state trial court by Christian parents of a developmentally disabled child who sought to employ a regular babysitter who is Christian to help raise their daughter in the Christian tradition. The Virginia Human Rights Act was amended in July 2021 to bars use of religion as a motivating factor in hiring domestic workers, including babysitters, and to bar expressing religious preferences in employment ads. The complaint (full text) in Woodruff v. Herring, (VA Cir. Ct., filed 10/28/2021) contends that application of this law to plaintiffs burdens their free exercise of religion in violation of the Virginia Religious Freedom Restoration Act. Foundation for Parental Rights issued a press release announcing the filing of the lawsuit. [Thanks to Scott Mange for the lead.]

Wednesday, November 03, 2021

Texas Voters Approve Measure To Ban Limits On Religious Services

In reaction to limits imposed on religious gatherings during the COVID pandemic, Texas voters yesterday approved Proposition 3, a state constitutional amendment which provides:

This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.

The vote was 62.42% in favor, 37.58% opposed. More details at Ballotpedia.

Nurse's Religious Objections Should Have Been Accommodated Under Illinois Right of Conscience Act

In Rojas v. Martell,(IL Cir. Ct., Oct. 25, 2021), an Illinois state trial court held that under Illinois Healthcare Right of Conscience Act, a county Health Department Clinic should have accommodated the objections of a nurse who on religious grounds would not participate in abortion referrals or provide contraceptives to patients. However, the court found that plaintiff was entitled only to the statutory minimum damages of $2500 because she should have mitigated damages by pursuing a position that was available at a nursing home. The court summarized its holding:

[W]hen one member of a team of employees makes an objection of conscience to performing a minority of her job duties, the employer should be required to accommodate the employee in her present position if doing so does not unreasonably compromise the employer's operations.

ADF issued a press release announcing the decision.

Suit Seeking Permission For Sidewalk Proselytizing Moves Ahead

In Peters v. Metropolitan Government of Nashville & Davidson County, Tennessee, (MD TN, Nov. 1, 2021), a Tennessee federal district court allowed plaintiffs who were prevented from religious proselytizing in areas, including the plaza and sidewalks, outside Nashville's Bridgestone Arena to move ahead with most their 1st and 14th Amendment, and failure-to-train, claims. The court said in part:

Drawing all reasonable inferences in favor of the Plaintiffs, it is reasonable to infer that Metro police officers were enforcing the Arena Policies with the approval or direction of the Metro legal department. At the motion to dismiss stage, this is sufficient to allege plausibly the existence of a municipal policy or custom.

Tuesday, November 02, 2021

California Ban On Harassing Persons Entering Vaccination Site Violates 1st Amendment

In Right to Life of Central California v. Bonta, (ED CA, Oct. 30, 2021), a California federal district court issued a temporary restraining order barring enforcement of a portion of a California statute that protects patients near vaccine sites from "harassment." The statute was challenged by a right-to-life organization that approaches women entering a Planned Parenthood clinic. The clinic is covered by the statute because it offers HPV vaccine. The court concluded that the 1st Amendment's free speech protections are violated by the prohibition on "harassing" anyone entering or exiting within 100 feet of the site. The harassment ban bars approaching within 30 feet of such person to give them a leaflet or handbill, or to display a sign, or engage in oral protest, education or counseling. The court did not enjoin enforcement of the ban on obstructing, injuring, intimidating, or interfering with such person. ADF issued a press release announcing the decision.

Illinois Legislature Eliminates Religious Exemption For COVID Vaccine Employer Mandates

Last week, the Illinois legislature gave final passage to SB 1169 (full text) which amends the Illinois Health Care Right of Conscience Act to provide:

It is not a violation of this Act for any person or public official, or for any public or private association, agency, corporation, entity, institution, or employer, to take any measures or impose any requirements ... intended to prevent contraction or transmission of COVID-19....

JD Supra explains:

The HCRCA has recently gained notoriety as a way for individuals to avoid complying with employer-mandated vaccine and testing policies and other COVID-19 safety measures. The HCRCA was enacted primarily to ensure that health care providers would not be compelled to participate in providing health care services that they find morally objectionable, such as performing abortions or dispensing contraceptives. However, the HCRCA is broadly worded....

While these protections are similar in some ways to Title VII in terms of requiring employers to accommodate employee religious beliefs ..., unlike Title VII, the HCRCA has no “undue hardship” exemption, even if granting an exception would create a significant risk to health and safety or prevent the employer from complying with federal or state regulations.

Religious Exemptions From Title VII Allow LGBTQ Employment Discrimination

In Bear Creek Bible Church v. EEOC, (ND TX, Oct. 31, 2021), a Christian church and a Christian-owned business filed a class action in a Texas federal district court seeking religious exemptions from provisions of Title VII of the Civil Rights Act of 1964. Under the U.S. Supreme Court's Bostock case, Title VII's ban on sex discrimination prohibits employment discrimination based on sexual orientation or gender identity. The court, in a 70-page opinion, held that as to churches and similar religious employers, the religious organization exemption in Title VII allows more than just religious discrimination:

[A] religious employer is not liable under Title VII when it refuses to employ an individual because of sexual orientation or gender expression, based on religious observance, practice, or belief.

As to businesses that assert a religious objection to homosexual and transgender behavior, the court held that Title VII substantially burdens their religious exercise in conducting business, in violation of the Religious Freedom Restoration Act as well as of the 1st Amendment's Free Exercise and Freedom of Association protections.

The court went on to rule on several other questions which the Supreme Court's Bostock decision arguably left unresolved. It concluded:

Title VII bars discrimination against bisexuals, just as it does against gays, lesbians and transgender individuals.
Policies that require employees to refrain from certain sexual activities, including sodomy, premarital sex, adultery, and other sexual activity outside of marriage between a man and a woman are permitted because they do not apply exclusively to bar homosexual conduct.
Sex-specific dress codes based on biological sex are permitted because they apply evenly to those who identify with their biological sex and to transgender individuals.
Policies that prohibit employees from obtaining genital modification surgery or hormone treatment for gender dysphoria violate Title VII.
Title VII allows employers to have policies that promote privacy, such as requiring the use of separate bathrooms on the basis of biological sex.

Bloomberg Law reports on the decision.

Monday, November 01, 2021

Supreme Court GVR's Challenge To New York's Abortion Coverage Mandate

In Roman Catholic Diocese v. Emami, (Docket No. 20-1501, GVR, 11/1/2021) (Order List) the U.S. Supreme Court today granted certiorari, vacated the judgment below and remanded the case to New York's Appellate Division for further consideration in light of Fulton v. Philadelphia. Justices Thomas, Alito and Gorsuch would have granted full review of the New York decision. In the case, the New York court rejected a challenge by several religious organizations and other plaintiffs to a New York administrative regulation requiring health insurance policies in New York to provide coverage for medically necessary abortion services. (See prior posting.) Becket Law issued a press release discussing the Court's action.

Certiorari Denied In Catholic Hospital's Free Exercise Claim

The U.S. Supreme Court today denied review in Dignity Health v. Minton, (Docket No. 19-1135, certiorari denied 11/1/2021) (Order List.) Justices Thomas, Alito and Gorsuch would have granted review. In the case, a California state appellate court (full text of opinion) held that California's Unruh Civil Rights Act allows a suit against a Catholic hospital for unequal access by a transgender man whose doctor was not permitted to perform a hysterectomy on him at the hospital. The hospital argued that performing the procedure would violate its long-held religious beliefs.

Supreme Court Will Hear Arguments Today In Texas "Heartbeat" Abortion Ban

The U.S. Supreme Court will hear arguments this morning in two cases challenging the Texas "heartbeat" abortion ban. The question the Supreme Court agreed to consider is not the ultimate constitutionality of the ban, but whether Texas has effectively insulated the law from pre-enforcement challenge. In Whole Woman’s Health v. Jackson, the question presented by the petition for certiorari is:

whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.

In United States v. Texas, the Supreme Court's grant of certiorari was limited to the question:

May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.

The SCOTUS blog case pages for the cases (1, 2 ) have links to all the filings by the parties, as well as to the numerous amicus briefs that have been filed. SCOTUS blog has an extensive preview of the arguments. The arguments will be streamed live by C-SPAN. At 10:00 AM (EST) arguments in Whole Woman's Health can be heard here. At 11:00 AM (EST) arguments in U.S. v. Texas can be heard here. I will update this post to furnish links to the transcripts and recordings of the arguments when those become available later today.

UPDATE: Here are links to the transcript and audio of arguments in Whole Woman's Health. And here are the links in United States v. Texas.

Saturday, October 30, 2021

Pope Says Biden Should Not Be Denied Communion

According to a New York Times report yesterday:

President Biden told reporters on Friday that Pope Francis had called him a “good Catholic” and said he should keep receiving communion, an unexpected development that appeared to put a papal finger on the scale in a debate raging in the United States’ Roman Catholic Church over whether the president and other Catholic politicians who support abortion rights should be denied the sacrament....

Asked to confirm Mr. Biden’s remarks, Matteo Bruni, the Vatican spokesman, said the Holy See limited its comments to the news release about subjects discussed during the meeting and added, “It’s a private conversation.”

In a separate article today, the New York Times reports that President Biden received communion Saturday evening at St. Patrick’s Church in Rome, an English-speaking church dedicated to the American Catholic community. President Biden is in Italy for a meeting of G20 leaders, as well as for his meeting with Pope Francis.

Supreme Court, 6-3, Denies Injunction Pending Appeal In Maine COVID Vaccination Case

The U.S. Supreme Court yesterday, by a vote of 6-3, in John Does 1-3 v. Mills, (Sup. Ct., Oct. 29, 2021), refused to enjoin enforcement of Maine's COVID vaccine mandate while a petition for Supreme Court review of the 1st Circuit's decision is pending. Healthcare workers sued objecting to the absence of religious exemptions from the mandate. The 1st Circuit in an Oct. 19 opinion (full text) refused a preliminary injunction against enforcement. The Supreme Court's Order was issued without an accompanying majority opinion. However, Justice Barrett, joined by Justice Kavanaugh, issued a short concurring opinion which appears to recognize the concern with the Court's increasing use of its "shadow docket" to render important decision. Justice Barrett wrote in part:

When this Court is asked to grant extraordinary relief, it considers, among other things, whether the applicant “‘is likely to succeed on the merits.’” ... I understand this factor to encompass not only an assessment of the underlying merits but also a discretionary judgment about whether the Court should grant review in the case.... Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument....

Justice Gorsuch, joined by Justices Thomas and Alito, filed an opinion dissenting from the denial of injunctive relief, saying in part:

Maine has so far failed to present any evidence that granting religious exemptions to the applicants would threaten its stated public health interests any more than its medical exemption already does.

This case presents an important constitutional question, a serious error, and an irreparable injury.... [H]ealthcare workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered. All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention.

SCOTUS blog reports on the decision.

Friday, October 29, 2021

Biden Meets With Pope Francis

As reported by CNN, President Joe Biden met for 90 minutes this morning with Pope Francis at the Vatican. The White House released a brief readout (full text) of the meeting, which said:

In his audience with Pope Francis today, President Biden thanked His Holiness for his advocacy for the world’s poor and those suffering from hunger, conflict, and persecution. He lauded Pope Francis’ leadership in fighting the climate crisis, as well as his advocacy to ensure the pandemic ends for everyone through vaccine sharing and an equitable global economic recovery.

After his audience with the Pope, Biden met with Vatican Secretary of State Cardinal Parolin. They discussed a variety of issues (White House readout), including advocacy for religious freedom world-wide.

Supreme Court Lifts Stay Of Execution Despite Inmates' Religious Objections To Sentence Conditions

The U.S. Supreme Court yesterday, by a vote of 5-3, in a brief Order (full text) vacated a stay of execution that had been entered by the 10th Circuit in Crow v. Jones (Sup. Ct., Docket No. 21A116). According to the New York Times:

The inmates, John Marion Grant and Julius Jones, had argued that the state’s [Oklahoma's] lethal injection protocol, which uses three chemicals, could subject them to excruciating pain.

They also objected on religious grounds to a requirement imposed by a trial judge that they choose among proposed alternative methods of execution, saying that doing so would amount to suicide.

Thursday, October 28, 2021

President Biden's Statement On International Religious Freedom Day

Yesterday was International Religious Freedom Day, commemorating the signing of the International Religious Freedom Act of 1998.(Current version). Yesterday President Biden issued a Statement (full text) marking the day, saying in part:

We stand in defense of religious freedom not only as an expression of our deepest values but also because it is a vital national security priority. The United States will continue to rally the globe to protect and promote the right of freedom of religion or belief, including through multilateral coalitions such as the International Religious Freedom or Belief Alliance.

2nd Circuit Hears Arguments On New York Vaccine Mandate

The U.S. 2nd Circuit Court of Appeals yesterday heard oral arguments in Dr. A v. Hochul. (Audio of oral arguments (mp3 file download)). In the case, 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. (See prior posting.) The case was consolidated for oral argument with We the Patriots USA, Inc. v. Hochul which poses similar issues. (Memorandum of Law ).

Texas Governor Signs Ban On Transgender Girls Participating On Female Sports Teams

On Monday, Texas Governor Gregg Abbott signed HB 25 (full text) which requires transgender students on interscholastic high school athletic teams to compete only on teams that conform to their biological sex as specified on their original birth certificate. The only exception is for female students competing on male teams when no female team is available. The law states that its purpose is:

to further the governmental interest of ensuring that sufficient interscholastic athletic opportunities remain available for girls to remedy past discrimination on the basis of sex.

KRIS TV reports on the new legislation. [Thanks to Scott Mange for the lead.]

Wednesday, October 27, 2021

Washington Vaccine Mandate Upheld Over Free Exercise Challenge

In Wise v. Inslee, (ED WA, Oct. 25, 2021), a Washington federal district court refused to enjoin Washington state's COVID vaccine mandate for for educators, healthcare workers, and state employees and contractors. One claim was that the mandate violates free exercise rights. The mandate recognizes that individuals may be entitled to disability related or religious accommodations under various anti-discrimination statutes. According to the court:

Plaintiffs appear to argue Proclamation 21-14 is facially neutral but not generally applicable because it essentially creates “an unlawful faith-based barrier to gainful employment.”....

As Defendants rightly indicate, because there are no exemptions for political, personal, or other objections, if anything, the Proclamation encourages religious practice.... Plaintiffs cannot demonstrate a discriminatory application solely because they disagree with the availability of accommodations. Plaintiffs have failed to demonstrate how the Proclamation is not generally applicable....

Plaintiffs’ objections to the Proclamation relate primarily to their disagreement with Defendants’ judgment regarding public health, which is insufficient to overcome the constitutionality of Defendants’ actions in enacting and promulgating the Proclamation, regardless of which level of scrutiny is applied.

Center Square reports on the decision.

Christian Student Group Challenges University's Non-Discrimination Policy

Suit was filed this week in a Texas federal district court by a Christian student organization at the University of Houston challenging the University's non-discrimination policy that led to a denial of recognition of the group as a Registered Student Organization. The complaint (full text) in Ratio Christi at the University of Houston- Clear Lake v. Khator, (SD TX, filed 10/25/2021), contends that the University violated the 1st and 14th Amendments by:

a. Denying Ratio Christi registered status because it requires that its officers, who have religious responsibilities, share the organization’s religious beliefs and support its purposes;

b. Conditioning a student organization’s access to campus resources and student services fee funding on a system where UHCL officials have unbridled discretion... [and [c]] must consider multiple content- and viewpoint-based factors; and

d. Compelling Plaintiffs to pay student service fees into a system that is viewpoint discriminatory.

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

UPDATE: ADF announced on Oct. 29 that the University has now recognized Ratio Christi as a Registered Student Organization.