European Court Dismisses Challenge To Baker's Refusal To Supply Cake With Pro-Gay Marriage Inscription

In a much-awaited decision, the European Court of Human Rights managed to avoid dealing directly with the central question in a case pitting LGBTQ rights against religious freedom rights of owners of commercial establishments. In Lee v. United Kingdom, (ECHR, Jan. 6, 2022), Gareth Lee, a gay man, ordered a cake from a bakery in Belfast. He asked for the cake to be decorated with the slogan "Support Gay Marriage."  He planned to take it to a private event being held to mark the end of Northern Ireland Anti-Homophobia and Transphobia Week and being held to gather political support for pending legislation to legalize same-sex marriage. The bakery, Ashers Baking Company, rejected the order because the company owners' Christian religious beliefs were opposed to same-sex marriage.

Lee filed suit in a county court in Northern Ireland claiming a violation of Northern Ireland's Equality Act and its Fair Employment and Treatment Order, which, among other things, bar sexual orientation discrimination in the provision of goods or services and discrimination on the basis of religious belief or political opinion. The case wound its way up to the U.K.'s Supreme Court which concluded that there was no sexual orientation discrimination because the bakery would have refused to supply the cake with that inscription to anyone. It also rejected the political opinion discrimination claim.

Lee appealed to the European Court of Human Rights. In yesterday's decision, the court dismissed the appeal, finding that Lee "did not invoke his Convention rights expressly at any point in the domestic proceedings.  Instead he formulated his claim by reference to [Northern Ireland's domestic law]." By failing to assert his rights under the European Convention in the courts of Northern Ireland, Lee failed to exhaust his domestic remedies.  The court said in part:

75.  ... As the Supreme Court of the United States pointed out in Masterpiece Cakeshop Ltd, these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.... This is particularly so in Northern Ireland, where there is a large and strong faith community, where the LGBTIQ community has endured a history of considerable discrimination and intimidation, and where conflict between the rights of these two communities has long been a feature of public debate....

Reuters reports on the decision. [Thanks to several readers for alerting me to the decision.]

Biden Resubmits Lipstadt's Nomination As Special Envoy to Monitor Antisemitism

With Congress beginning a new session, the nominations which the President sent to the Senate last year need to be resubmitted if the Senate has failed to act on them. On Tuesday, President Biden resubmitted a large number of nominations. Among them was the nomination of Deborah Lipstadt to be Special Envoy to Monitor and Combat Anti-Semitism, with the rank of Ambassador. Lipstadt's nomination was originally sent to the Senate last July. (See prior posting.) According to a CNN report, Senate Democrats accuse Republicans of stalling the nomination.  Republicans on the Senate Foreign Relations Committee have refused so far to agree to hold hearings on her nomination. This is variously attributed to a broad effort to stall President Biden's nominees, or more narrowly to concerns by Foreign Relations Committee member Ron Johnson about tweets from Lipstadt last March critical of him. Lipstadt is a professor of Modern Jewish History and Holocaust Studies at Emory University.

Poway Synagogue Rabbi Sentenced To 14 Months In Custody For Fraud

The U.S. Attorney's Office for the Southern District of California announced that yesterday a California federal district judge sentenced Rabbi Yisroel Goldstein -- rabbi of Chabad of Poway during a much-publicized shooting in 2019-- to 14 months in custody for his part in a multi-million dollar fraud scheme.  Goldstein plead guilty to fraud charges in 2019. (See prior posting.) He was also ordered to pay $2.8 million in restitution.  According to the U.S. Attorney's Office:

[W]hile Rabbi Goldstein was director of the Poway synagogue, he received at least $6.2 million in phony contributions to the Chabad and affiliated charities and secretly refunded up to 90 percent of the donations to the “donors.” After Rabbi Goldstein provided these donors with fake receipts, they illegally claimed huge tax deductions for these nonexistent donations, and the rabbi kept about 10 percent ... for himself....

Rabbi Goldstein also admitted that he defrauded three different Fortune 500 companies by tricking them into matching supposed charitable donations of their employees....

Rabbi Goldstein ... also helped his brother ... conceal approximately $700,000 in income by allowing him to use Chabad bank accounts to deposit his income, thereby hiding it from the IRS.  As his cut, Rabbi Goldstein kept 10 percent.... 

... Goldstein and another defendant ... used false information and fabricated invoices and other records to pretend to be eligible for emergency funds, grants or donations, and private loans [from FEMA and the state of California].

According to The Forward's report on the sentencing, prosecutors had recommended a much more lenient sentence-- 8 months of home confinement and 4 years probation.

Public School Districts Challenge Expansion Of Ohio's Voucher Program

Suit was filed yesterday in an Ohio state trial court by five school districts and an organization comprised of dozens more, as well as by parents of school students, challenging the Ohio legislature's recent expansion of the EdChoice voucher program. The complaint (full text) in Columbus City School District v. State of Ohio, (OH Com. Pl., filed 1/4/2022), alleges that the expanded program violates Article VI, Sec. 2 of the Ohio Constitution which calls for creation of "a thorough and efficient system of common schools throughout the State" and provides that "no religious or other sect, or sects, shall ever have any exclusive rights to, or control of, any part of the school funds of this state." The complaint alleges in part:

148. The General Assembly’s continuing efforts to expand the EdChoice Program have been undertaken with full knowledge that these state funds would overwhelmingly benefit parochial schools, at the expense of Ohio’s public school students.

149. These private sectarian institutions will receive exclusive and unfettered control of approximately $250 million of Ohio’s school funding in Fiscal Year 2022....

150. Diverting almost a quarter of a billion dollars of taxpayer funding to the exclusive control of parochial schools violates the framers’ intent in retaining the full text of Article VI, Section 2 to ensure that public education funds would not be used to support religious sects, including parochial schools.

Columbus Dispatch reports on the lawsuit.

Consent Decree Entered In Suit Claiming Religious Discrimination In Action Against Mosque Construction

 A consent decree (full text) was entered yesterday in a Mississippi federal district court in Abraham House of God and Cemetery, Inc. v. City of Horn Lake, (ND MS, Jan. 3, 2022). The suit alleged that the City of Horn Lake denied approval of the site plan for a proposed mosque because of religious animus. (See prior posting.) The consent decree requires the city to approve the site plan within two weeks, and to act promptly on future applications for permits relating to construction of the mosque.  ACLU issued a press release announcing the filing of the consent decree.

11th Circuit: Punitive Damages For Non-Physical Injuries Are Available To Inmate Under RLUIPA

In Mays v. Joseph, (11th Cir., Jan. 3, 2022), the U.S. 11th Circuit Court of Appeals held that a prisoner may recover punitive damages for violation of his religious exercise rights under RLUIPA in a suit against a prison warden in the warden's individual capacity.  In the case, plaintiff claimed that the Georgia Department of Corrections' grooming policy that barred him from growing his hair or a goatee longer than three inches violated his rights to express his religion. The court held that while an incarcerated plaintiff may not recover compensatory damages for mental or emotional injuries absent physical injury, he can recover punitive damages and nominal damages. Here plaintiff had waived his nominal damage claim.

Maneuvering Continues In Challenge To Texas Heartbeat Abortion Law

Procedural maneuvering continues in the challenge by abortion providers to the Texas "heartbeat" abortion law. The courts have kept the Texas law in effect while the maneuvering goes on, with Texas seeking to delay proceedings as long as possible and plaintiff abortion providers seeking to speed them forward.  

The U.S. Supreme Court held that the law could be challenged despite the state's attempt to draft the law to prevent anyone from being able to do so because there were still some state officials involved in enforcing the law. The Supreme Court then remanded the case to the 5th Circuit (which had previously allowed the law to remain in effect), instead of to the district court (which had previously enjoined the law while appeals were pending). In the 5th Circuit, Texas is seeking to have the question of whether state officials are in fact still involved in enforcing the law certified to the Texas Supreme Court for resolution, while the abortion providers challenging the law contend that the U.S. Supreme Court has already decided that issue. The 5th Circuit has scheduled oral arguments for Friday on the appropriateness of certifying the case, as well as on other jurisdictional questions.

 So yesterday, in In re Whole Woman's Health, (U.S. Sup. Ct., filed 1/3/2022), the plaintiffs in the case filed a petition (full text) with the U.S. Supreme Court asking it to issue a writ of mandamus directing the Court of Appeals to remand the case immediately to the district court. Texas Tribune reports on these developments.

Navy Enjoined From Applying Vaccine Mandate To Plaintiff Religious Objectors

 In U.S. Navy SEALs 1-26 v. Biden, (ND TX, Jan. 3, 2022), a Texas federal district court issued a preliminary injunction barring the U.S. Navy from imposing its COVID-19 vaccine mandate on 35 Navy service members who are plaintiffs in the case.  The court held that plaintiffs need not exhaust their military remedies before suing because, while the Navy's policy provides for religious exemptions, the denial of each exemption request is predetermined.  Also, even if a religious exemption is granted, the service member is then permanently barred from deployment.

The court concluded that applying the vaccine mandate to plaintiffs violates the Religious Freedom Restoration Act, saying in part:

Because the Plaintiffs have demonstrated a substantial burden, Defendants must show that this burden furthers a compelling interest using the least restrictive means....

Even if Defendants have a broad compelling interest in widespread vaccination of its force, they have achieved this goal without the participation of the thirty-five Plaintiffs here. At least 99.4% of all active-duty Navy servicemembers have been vaccinated.... The remaining 0.6% is unlikely to undermine the Navy’s efforts.... With a 99.4% vaccination rate, the Navy’s herd immunity is at an all-time high. COVID-19 treatments are becoming increasingly effective at reducing hospitalization and death....

Moreover, the Navy is willing to grant exemptions for non-religious reasons. Its mandate includes carveouts for those participating in clinical trials and those with medical contraindications and allergies to vaccines.... Because these categories of exempt servicemembers are still deployable, a clinical trial participant who receives a placebo may find himself ill in the high-stakes situation that Defendants fear.... As a result, the mandate is underinclusive.

The court also concluded that applying the mandate to plaintiffs violates the 1st Amendment's free exercise clause because the mandate is not neutral and generally applicable.

First Liberty issued a press release announcing the decision.

Australian Court Holds Diocese Vicariously Liable For Abuse By Priest

In the Australian state of Victoria, a trial court has held a Catholic Diocese vicariously liable for sexual abuse of a five-year old in 1971 by Bryan Coffee, an assistant parish priest. In DP (a pseudonym) v. Bird, (Sup. Ct. Victoria, Dec. 22, 2021), the court, in a very lengthy opinion, said in part:

278 By reason of —(a) the close nature of the relationship between the Bishop, the Diocese and the Catholic community in Port Fairy; (b) the Diocese’s general control over Coffey’s role and duties within St Patrick’s parish; (c) Coffey’s pastoral role in the Port Fairy Catholic community; and (d) the relationship between DP, his family, Coffey and the Diocese, which was one of intimacy and imported trust in the authority of Christ’s representative, personified by Coffey — the Diocese is vicariously liable for his conduct....

280 I am also satisfied that Coffey’s role as a priest under the direction of the Diocese placed him in a position of power and intimacy vis-à-vis DP that enabled him to take advantage of DP when alone — just as he did with other boys. This position significantly increased the risk of harm to DP....

However the court refused to hold the Diocese liable on a direct negligence claim, concluding that Coffee's actions were not a foreseeable risk.  Law and Religion Australia and ABC Australia News reports at length on the decision, saying that this is the first time that an Australian court has found a diocese vicariously liable for actions of a priest.  [Thanks to Law & Religion UK for the lead.]

Recent Articles of Interest

From SSRN:

• John Witte, 'Foreword,' to Norman Doe, ed., Church Laws and Ecumenism: A New Path for Christian Unity, (London: Routledge, 2020, vii-ix).
• John Witte, “Foreword,” to Robert F. Cochran, Jr., and Michael P. Moreland, eds., Christianity and Private Law (London: Routledge, 2021, viii-x).
• John Witte, The Right of Freedom of Religion: An Historical Perspective from the West, (in Silvio Ferrari, et al., eds., Routledge Handbook on Freedom of Religion and Belief (London: Routledge, 2020, 9-24).
• John Witte & Andrea Pin, Faith in Strasbourg and Luxembourg: The Fresh Rise of Religious Freedom Litigation in the Pan-European Courts , (Emory Law Journal 70 (2021): 587-661).
• John Witte, 'Introduction,' to John Witte, Jr., et al., eds., The Impact of the Law on Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies,  (Leipzig: Evangelische Verlagsanstalt GmbH, 2021), 15-30).
• John Witte, 'Foreword,' to Paul Valliere and Randall Poole, eds., Law and the Christian Tradition in Modern Russia, (London: Routledge, 2021, ix-xi).
• John Hasnas, Free Speech on Campus: Countering the Climate of Fear, (Georgetown Journal of Law & Public Policy, Forthcoming).
• David A. Kaye, The Troubled World of Hate Speech Regulation,  (Journal of Human Rights, 2022, forthcoming).
• Teresa D. Harrison & Jeremy P. Thornton, Further Evidence on Competition in Nonprofit Donor Market, (Nonprofit and Voluntary Sector Quarterly 2021).

Happy New Year 2022!

Dear Religion Clause Readers:

Happy New Year 2022! I hope that you continue to find Religion Clause a valuable source of information on the intersection of law, religion and public policy.  This past year, we saw a continuation of the trend to convert cultural and political disagreements with legislative or executive decisions into religious freedom or church-state claims that can be asserted before the courts.  Faced with this deluge, the Supreme Court's increased use of its "shadow docket" to decide important free exercise cases without full briefing and argument has become the subject of controversy.

In reporting on these and other developments, I have attempted to retain Religion Clause's objectivity and its policy of linking to extensive primary source material. I hope that the blog continues to have a reputation for reliability at a time when the objectivity of social media is increasingly called into question.  

Religion Clause is a niche blog whose readership includes lawyers at advocacy organizations, law school faculty, journalists, clergy, governmental agency personnel, students and others working professionally dealing with church-state relations and religious liberty concerns in the U.S. and around the world. I attempt to avoid excessive technical matters in my posts in order to make the blog accessible as well to non-lawyers with a general interest in the area.

2022 promises to be another year of interesting and important developments. I hope you will continue to follow them on Religion Clause.  In addition to accessing the blog directly, links to Religion Clause postings are available on Twitter, Facebook and through e-mail alerts from services listed near the bottom of the blog's sidebar.

Thanks again to all of you who are loyal readers-- both those who have followed Religion Clause for years and those of you who have only recently discovered the blog.  A special thanks to readers who have quickly sent me leads on recent developments, and to those who have alerted me to mistakes. I encourage you to recommend Religion Clause to colleagues, students and friends who might find it of interest.

Best wishes as we all face the challenges that 2022 brings to us.  I hope that we are able to deal with these challenges by respecting divergent viewpoints and supporting the foundational institutions of American democracy.

Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions. Best wishes for 2022.

Howard Friedman

Hebrew Israelite Student Seeks $4M In Damages For Coach's Punishment That Violated His Religious Dietary Requirements

Suit was filed yesterday in an Ohio federal district court by a Hebrew-Israelite high school football team member who was told to eat a pepperoni pizza as discipline for missing a mandatory weight class. When the student objected that eating pork was a violation of his religious beliefs, he was allowed to remove the pepperoni, but still was forced to eat the pizza with pork residue on it. The complaint (full text) in K.W. (Junior) v. Canton City School District, (ND OH, filed 12/29/2021) alleges 1st and 14th Amendment, as well as other, claims saying in part:

All Defendants were fully aware of Junior’s religious beliefs; however, Defendants established practices and implemented actions that were antisemitic and/or in direct violation of Plaintiffs’sincere religious beliefs. therefore violating 42 U.S.C. § 1983.

WHEREFORE, Plaintiffs demand compensatory damages of $3,000,000.00 and punitive damages of $1,000,000.00.... [as well as] injunctive relief....

Other dollar amounts are sought for other causes of action set out in the complaint.  WKYC News reports on the lawsuit.

Church Dispute Dismissed On Ecclesiastical Abstention Grounds

In Iglesia Pentecostal Filadelfia, Inc. v. Rodriguez, (TX App., Dec. 29, 2021), a Texas state appellate court affirmed a trial court's dismissal of an internal church dispute on ecclesiastical abstention grounds. Jose  Rodriguez, Jr. took over as pastor of the church when his mother passed away. Plaintiffs sued on behalf of the church challenging Rodriguez's actions in that role. The court said in part:

Here, the trial court found that neither side complied with the Church’s organizational and governing documents, including the Bylaws, a decision we find support for in the record .... Therefore, we find that a determination of the Church’s claims at issue would impermissibly embroil the trial court in a religious controversary to include choosing its church leaders....

Further, the Church’s second declaration is clearly a matter of church authority or governance as opposed to substantively and effectively a property dispute as it asks the trial court to declare that “[Jose Jr.] has no right or authority to act on the behalf of [the Church] and its congregation.”

Moreover, to develop the Church’s conversion claim would impermissibly force the trial court to decide the Church’s corporate governance because to do so would require it to determine which board to inquire of for the reason behind the alleged unlawful use of funds.

India Refuses To Allow Mother Theresa's Charity To Receive Further Funds From Abroad

The Guardian reports that on Christmas Day, India's Ministry of Home Affairs refused to renew the license allowing Missionaries of Charity to continue to receive financial support from abroad.  Missionaries of Charity, which runs a network of charities across India, was founded by Mother Theresa in 1950. Accusations, denied by the Charity, are that it lures poor young Hindu women into becoming Christians by forcing them to read the Bible, recite Christian prayers and wear a cross around their neck. Hardline Hindus say that the Charity is intentionally hurting the religious sentiments of Hindus.

Muslim Woman Sues Gun Range For Religious Discrimination

A religious discrimination suit was filed yesterday in a Missouri federal district court against a "faith, family and freedom" based indoor gun range that refuses admission to Muslim women wearing hijabs. The complaint (full text) in Barakat v. Brown, (WD MO, filed 12/28/2021) alleges that this policy of the Frontier Justice gun range, owned by a Christian family, violates the public accommodation anti-discrimination provisions in Title II of the 1964 Civil Rights Act.  CAIR issued a press release announcing the filing of the lawsuit.

NY Governor Vetoes Bill Aimed At Preventing Hasidic Jews Moving Into Neighboring Town

Last week (Dec. 22), New York Governor Kathy Hochul vetoed Senate Bill 1811 which would have authorized the Town of Blooming Grove to create community preservation funds that could acquire property needed to preserve the character of the community. (Full text of bill.)  According to JNS, the Governor's Veto Memorandum read in part:

There have been well-documented tensions in Orange County between local elected officials and members of the Hasidic community. Similar tensions in the nearby Town of Chester resulted in litigation. It would be inappropriate to sign this legislation at this juncture, while facts are still being gathered about the situation. Therefore, I am constrained to veto this bill.

JNS reports further:

Blooming Grove is less than 10 miles north of the Chassidic enclave of Kiryas Joel, which has a population of some 30,000 people, nearly all of them chassidim. In recent years, members of the Orthodox community have been moving to nearby towns, including Chester and Blooming Grove. Restrictions on home building and land development are seen by some as an attempt to limit the growth of the Orthodox community in the region.

According to the Agudath Israel of America, which had been lobbying against the legislation for several months, “the real purpose of the bill is to buy up open lands in order to keep Chassidic Jews from purchasing this land and building homes in Blooming Grove … .”

British Employment Tribunal Says Equality Act Does Not Cover Discrimination Because Of Fear Of COVID

Among other things, Britain's Equality Act, §10, prohibits discrimination on the basis of "belief".  In X v. Y, (Empl. Trib., Dec. 13, 2021), an Employment Tribunal in England's city of Manchester held that an employee's fear of catching COVID-19 and her need to protect herself and others does not qualify as a "belief" for purposes of the Act.  The Tribunal said in part:

I do not find that the claimant’s fear amounts to a belief. Rather, it is a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat. Most (if not all) people, instinctively react to perceived or real threats of physical harm in one way or another.... However, a fear of physical harm and views about how best to reduce or avoid a risk of physical harm is not a belief for the purposes of section 10.

Law & Religion UK reports on the decision.

Deposit Of Nominal Damages Does Not Moot Student's Claim In Remand From Supreme Court

In March in Uzuegbunam v. Preczewski, the U.S. Supreme Court held that a college student's suit for nominal damages was not mooted when the school changed its challenged policies.  The case involves a challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature and proselytizing on campus. (See prior posting.) Now on remand, defendants sought to obtain dismissal of the case by depositing nominal damages of $2 with the court and having it paid over to plaintiffs. In Uzuegbunam v. Preczewski, (ND GA, Dec. 22, 2012), a Georgia federal district court held that this would not moot the case.  ADF issued a press release announcing the district court's decision.

Recent Articles of Interest

 From SSRN:

• Ronit Irshai, Feminist Research in Jewish Studies: What’s in a Name, (in: Re-Making the World: Christianity and Categories, Essays in Honor of Prof. Karen King, edited by Taylor G. Petrey (Germany: Mohr Siebeck, 2019), pp. 257-276).
• Ronit Irshai, The Construction of Gender in Halakhic Responsa by the Reform Movement: Transgender People as a Case Study, (Journal of Modern Jewish Studies, 18:2, 160-176 (2019).
• Pamela Laufer-Ukeles, The Power of Blood: The Many Faces of Menstruation in Jewish Law and Beyond, (Columbia Journal of Gender and Law, Vol. 41, No. 1, 2021).
• Derek Ross, Truth-Seeking and the Unity of the Charter’s Fundamental Freedoms, (98 Supreme Court Law Review (2d), 2020).
• Jimmy Chia-Shin Hsu, Right to Life and Capital Punishment in Transnational Judicial Dialogue, (Asian Journal of Comparative Law, First View, pp. 1 - 27 (2021)).
• Sital Kalantry, Do Reason-Based Abortion Bans Prevent Eugenics?, (Cornell Law Review, Vol. 107, No. 1, 2021).
• Muhammad Munir, One Step Forward, Two Steps Back: The Unending Twist and Turn Regarding the Law of Khul‘ and its Exposition by the Superior Courts in Pakistan, (Manchester Journal of Transnational Islamic Law & Practice (MJTILP) Volume 17, Issue 1:2021, pp. 133-149).

From SmartCILP:

• Charles Adside III, The Establishment Clause Forbids Coercion, Not Cooperation, between Church and State: How the Direct Coercion Test Should Replace the Lemon Test, 95 North Dakota Law Review 533-568 (2020).
• Michael J. Broyde & Alexa J. Windsor, In Contracts We Trust (and No One Can Change Their Mind)! There Should Be No Special Treatment for Religious Arbitration, 21 Pepperdine Dispute Resolution Law Journal 1-42 (2021).

Top 10 Religious Liberty and Church-State Developments Of 2021

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year.  My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention. The selection of top stories obviously involves a good deal of subjective judgment.  This year many developments were interrelated, so deciding what counts as a separate development was a challenge.  I welcome e-mail comment from those who disagree with my selection of top stories.  Here are my Top Ten picks:

1. A flood of court decisions on religious freedom challenges to COVID-19 restrictions on worship services, followed by state measures to prevent future governmental closing down of church services

2. Supreme Court refuses to enjoin Texas heartbeat abortion law pending appeal, while allowing challenges to the unique law to proceed in lower courts.

3. Extensive challenges to the absence of religious exemptions in COVID vaccine mandates.

4. Supreme Court's increased use of its "shadow docket" to render important decisions.

5. Biden Administration reasserts bans on discrimination against transgender and gay individuals, while treatment of transgender individuals in athletic competitions and in classrooms by teachers who refuse to recognize their gender identity become important issues

6. Supreme Court in Fulton v. City of Philadelphia holds unanimously that Philadelphia has violated the free exercise rights of Catholic Social Services by refusing to contract it to provide foster care services unless it agrees to certify same-sex couples as foster parents. 

7. Congress and President take action against China over Uyghur genocide.

8. The United States returns as a member of the United Nations Human Rights Council.

9. Supreme Court rules on rights of chaplains to be in execution chambers.

10. U.S. bishops back down on denial of communion to President Biden over his views on abortion after Pope supports Biden.

Fraud and Emotional Distress Claims Against Archdiocese Are Dismissed

In Dux v. Bugarin, (MI App., Dec. 21, 2021), a Michigan state appellate court dismissed an intentional infliction of emotional distress (IIED) claim and a fraud claim growing out of the Archdiocese of Detroit's removal of an accused Catholic priest supported by plaintiffs. The court describes plaintiffs' claims:

In their IIED count, plaintiffs claimed defendants’ statement that the allegations of sexual abuse were credible was an “extreme and outrageous act.” In their fraud count, plaintiffs alleged the Archdiocese asked its parishioners, including plaintiffs, to donate money to the Catholic Services Appeal (CSA). Plaintiffs alleged the Archdiocese represented the donations would be used for church ministry and would not be used to settle claims “of any nature” against the Archdiocese.

Dismissing the IIED claim under the ecclesiastical abstention doctrine, the court said in part:

The trial court properly dismissed plaintiffs’ IIED claim because resolution of that claim would require the trial court to delve into matters of ecclesiastical policy concerning how the Archdiocese investigates and evaluates claims of sexual abuse made against its clergy.... [A]ny inquiry into the means and methods by which the Archdiocese evaluates such claims would require the trial court to inquire into ecclesiastical matters forbidden under the First Amendment.

Dismissing plaintiffs' fraud claims, the court said that one of the fraud claims-- that they were defrauded by the statement that donations would be used for the church "ministry"-- would require courts to impermissibly inquire into internal church matters. It would need to decide whether "ministry" includes investigation into sex abuse claims and providing treatment for victims. Turning to a second fraud claim, the court said in part:

Turning then to whether plaintiffs otherwise stated a claim for fraud on the basis of the statement that CSA donations would not be used to settle claims against the Archdiocese, plaintiffs’ claim is premised on the theory that the Archdiocese had a duty to disclose the information about the true purpose of the donations.

“Michigan courts have recognized that silence cannot constitute actionable fraud unless it occurred under circumstances where there was a legal duty of disclosure.”

School's Anti-Racism Curriculum Challenged As Religious Discrimination

Suit was filed yesterday in a Virginia state trial court by parents of a number of school children challenging the Albemarle County School Board's "Anti-Racism Policy" and the curriculum developed to implement it. The complaint (full text) in C__I__v. Albemarle County School Board, (VA Cir. Ct., filed 12/22/2021) alleges violations of a number of provisions of the Virginia state Constitution. The allegations include a religious discrimination claim which reads in part:

302. Defendants’ curriculum discriminates on the basis of religion by teaching that Christianity is a “dominant” “identity” that has oppressed “subordinate” “identities” such as Islam, Buddhism, Judaism, other non-Christian religions, and atheism....

304. Defendants’ curriculum discriminates against Christians by identifying them as “dominant” and an “identity” for others to work against.

305. Defendants’ curriculum discriminates against other religions by identifying them as “subordinate.”

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

Faith-Based Homeless Shelter Denied Injunction Against Alaska City's Anti-Discrimination Laws

In Downtown Soup Kitchen v. Municipality of Anchorage, (D AK, Dec. 20, 2021), an Alaska federal district court refused to grant injunctive relief to a faith-based homeless shelter for women that objected to Anchorage's newly revised public accommodation and housing anti-discrimination laws. The shelter refuses to house transgender women. The court concluded that the faith-based shelter failed to show a credible threat of enforcement of either the public accommodation or the housing sections of the new law. The city takes the position that the provisions do not apply to the shelter and disclaims any intent to prosecute. However the court held that the shelter does have standing to sue for damages for the nearly 3-month period before the city disclaimed any intent to prosecute under the housing provisions. Anchorage Daily News reports on the decision. 

China Imposes Sanctions On USCIRF Commissioners

Radio Free Asia reports that yesterday China imposed sanctions on the chair, vice-chair and two commissioners of the U.S. Commission on International Religious Freedom. They will be barred from entering China, and any assets they hold in China will be frozen.  The move comes in response to recent sanctions imposed on Chinese officials by the U.S. Treasury Department because of human rights abuses against Uyghurs and members of other predominantly Muslim ethnic minority groups in Xinjiang Region. USCIRF issued a press release condemning the Chinese government's action.

Abuse Victim's Claim Against The Vatican Dismissed Under FSIA

In Robles v. Holy See (State of Vatican City), (SD NY, Dec. 20, 2021), a New York federal district court dismissed a suit against the Vatican by plaintiff who was sexually abused by Catholic priest Barry Bossa from 1981 to 1986. Plaintiff claimed that the Vatican's policies contributed to the abuse, and asserted negligence and vicarious liability claims against the Vatican. The court held that under the Foreign Sovereign Immunities Act, it lacks jurisdiction over the Holy See on the claims as plead, saying in part:

At least at this stage ... the exception to the FSIA for tort liability based on the actions of an employee provides jurisdiction for claims of negligence, negligent training, supervision, and retention, and international law claims against the Holy See....

The Holy See’s alleged conduct, such as promulgating policies and supervising its employees and officials, occurred in large part at the Vatican.... As a result, the Holy See is immune from Plaintiff’s claims arising from the Holy See’s conduct that occurred outside the United States....

The Tortious Act Exception also excludes “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused.” 28 U.S.C. § 1605(a)(5)(A). It is at this last step of the analysis that the last of Plaintiff’s remaining claims against the Holy See — negligence, negligent training, supervision, and retention, and violations of customary international law, all pursuant to respondeat superior based on the alleged actions of its putative employees— fail....

Case-law is clear that decisions related to employment and supervision are exactly the kind of policy judgments that the discretionary exclusion was designed to shield.....

Plaintiff’s broader negligence claim against the Holy See pursuant to respondeat superior, including his failure-to-warn and failure-to-report allegations ... is dismissed without prejudice, because, although perhaps a steep uphill climb, Plaintiff could conceivably allege facts in an amended complaint demonstrating lack of discretion as to these actions....

7th Circuit Now Says Wisconsin Wrongly Denied School Bus Aid To Catholic School Students

In St. Augustine School v. Underly, (7th Cir., Dec. 20, 2021), the U.S. 7th Circuit Court of Appeals sent back to the district court a suit challenging Wisconsin's refusal to provide bus transportation to students at St. Augustine School. The decision was based on a Wisconsin statute that requires school districts to bus private school students, but limits the obligation to only one private school affiliated with the same religious denomination or sponsoring group in each attendance district.  Another Catholic school in the same district was already receiving bussing aid.  In 2018, the 7th Circuit rejected 1st Amendment challenges to the law and upheld the state's decision. (See prior posting.)  

Plaintiffs sought review in the U.S. Supreme Court. In 2020, the Supreme Court granted certiorari, summarily vacated the judgment below and remanded the case to the 7th Circuit in light of its decision in Espinoza v. Montana Department of Revenue. At that point, the 7th Circuit decided to certify to the Wisconsin Supreme Court the state law question of how to determine if two schools are affiliated with the same denomination.  The Wisconsin Supreme Court responded to the certified question in July of this year. (See prior posting.) Applying that guidance, the 7th Circuit this week held:

We conclude that the Superintendent’s decision in the case before us was not justified by neutral and secular considerations, but instead necessarily and exclusively rested on a doctrinal determination that both St. Augustine and St. Gabriel’s were part of a single sponsoring group—the Roman Catholic church—because their religious beliefs, practices, or teachings were similar enough....

European Court Says Anti-LGBT Mob Led By Priest and Others Violated European Convention

In Women's Initiatives Supporting Group and Others v. Georgia, (ECHR, Dec. 16, 2021), the European Court of Human Rights in a Chamber Judgment held that Georgia's failure to protect LGBT demonstrators from mob violence violated Article 3 of the European Convention on Human Rights. Article 3 prohibits "inhuman or degrading treatment or punishment."  Demonstrators who were marking International Day Against Homophobia were met with violent counter-demonstrators from a so-called Prayer Rally led in part by a prominent clergyman of the Georgian Orthodox Church. Counter demonstrators included priests and parishes from various churches in Tbilisi. The Court issued a press release summarizing the decision.

Christian Organizations Ask Supreme Court To Stay OSHA Private-Employer Vaccine Mandate

Last Friday, in a 2-1 decision in In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, (6th Cir., Dec. 17, 2021), the U.S. 6th Circuit Court of Appeals dissolved a stay of OSHA's Emergency Temporary Standard that calls for employers of of 100 or more persons to require either COVID vaccination of employees or weekly testing (and masks) for unvaccinated workers. Challenges in some three dozen cases had been consolidated in the 6th Circuit which then had authority to modify or dissolve the prior stay issued by the 5th Circuit. 

Among the consolidated cases was one brought by a number of Christian schools, colleges and organizations that were subject to the rule. They quickly filed an Emergency Application with the U.S. Supreme Court asking for a stay pending appeal of the 6th Circuit's decision. The Application (full text) in Southern Baptist Theological Seminary v. OSHA, (Sup. Ct., filed 12/17/2021) argues:

OSHA lacks jurisdiction to regulate religious non-profit institutions, because they are not “employers” under the OSH Act.

It goes on to contend that the OSHA rule also violates Applicants' religious freedom rights under RFRA and the 1st Amendment, saying in part:

OSHA “commandeers” Religious Institutions “to compel [their] employees” to comply with the mandate.... To ensure compliance, Religious Institutions must probe their ministers’ and employees’ intimate and personal medical decisions that often implicate their religious beliefs. This is precisely the “secular control or manipulation” that the First Amendment prohibits.... In addition, the mandate violates the First Amendment by setting the “terms and conditions of employment” to work for Religious Institutions ... and interfering with their ability to “select[] ... the individuals who play certain key roles”....

Religious Institutions exercise their faith by providing seminary training, providing Catholic and Christian education, engaging in nonprofit ministries, and operating for-profit businesses according to Christian values. The Mandate will force Religious Institutions to take faculty out of classrooms, and staff out of operating these organizations and businesses—for testing on a weekly basis or for non-compliance—which will significantly disrupt Religious Institutions’ mission, including for-profit businesses’ operations and exercise.... This burden is substantial—not mere inconvenience—because Religious Institutions’ employees are not fungible.

ADF issued a press release announcing the filing of the Emergency Application. SCOTUblog discusses the filing.

A second Emergency Application was filed by a different group of Christian organizations.  The Application (full text) in Word of God Fellowship, Inc. v. OSHA, (Sup. Ct., filed 12/19/2021) contends in part:

... [T]he violation of the Ministries’ religious faiths is not cured by the provisions of the ETS and Title VII that provide them with discretion to grant religious accommodations to their employees.... The Ministries cannot put their employees to the test by requiring them to seek religious accommodations for the government-imposed vaccine mandate.... In other words, even asking their employees to make a decision of religious conscience about the vaccine mandate causes the Ministries to engage in what they believe is sin. Moreover, the mask requirement for unvaccinated employees also burdens the Ministries’ religious beliefs, because they believe that OSHA’s requirement that they mask unvaccinated employees would forcibly identify those who are unvaccinated and cause division within their organizations.... The Ministries believe they have a Biblical duty to promote unity within their organizations.

Axios reports on this filing.

Recent Articles Of Interest

 From SSRN:

• Arie Reich & Guy Harpz,Kosher and Halal Slaughtering Before the European Court of Justice: Voting with Your Trolley Instead of an Outright Ban?, (Texas International Law Journal, Forthcoming).
• Stephen I. Vladeck, The Most-Favored Right: COVID, the Supreme Court, and the (New) Free Exercise Clause, (NYU Journal of Law & Liberty, Vol. 15 (Forthcoming 2022)).
• Michelle Oberman, Motherhood, Abortion, and the Medicalization of Women’s Poverty, (46 J.L. Med. & Ethics 665 (2018)).
• Meagan Zabadal, Hate Speech and Minority Protection in the United States, (Charles University in Prague Faculty of Law Research Paper No. 2021/III/2).
• Wulf A. Kaal, How Decentralized Autonomous Organizations Optimize Charitable Giving, (December 8, 2021).
• Dana Neacsu, Social Services and Mutual Aid in Times of Covid-19 and Beyond: A Brief Critique, (The Human Rights Brief (American University Washington College of Law) Forthcoming 2022).

From SmartCILP:

• Shajuti Hossain, Lessons from Blackamerican Lawyers' Social Justice Advocacy for Immigrant Muslim Lawyers, [Abstract], 24 U.C. Davis Social Justice Law Review 62-93 (2020).

Congress Passes Uyghur Forced Labor Prevention Act

On Thursday, the U.S. Senate gave final passage to H.R. 6256, The Uyghur Forced Labor Prevention Act (full text). The bill now goes to President Biden for his signature. It calls for development of a strategy:

to ensure that goods mined, produced, or manufactured wholly or in part with forced labor in the People’s Republic of China, including by Uyghurs, Kazakhs, Kyrgyz, Tibetans, and members of other persecuted groups in the People’s Republic of China, and especially in the Xinjiang Uyghur Autonomous Region, are not imported into the United States.

It also calls for development of guidance for importers. National Law Review has more details.

Rashad Hussain Confirmed As International Religious Freedom Ambassador

Yesterday the U.S. Senate, by a vote of 85-5, confirmed Rashad Hussain to be Ambassador at Large for International Religious Freedom. The White House issued this biographical background when Hussain was nominated for the post:

Rashad Hussain is Director for Partnerships and Global Engagement at the National Security Council.... During the Obama Administration, Rashad served as U.S. Special Envoy to the Organization of Islamic Cooperation (OIC), U.S. Special Envoy for Strategic Counterterrorism Communications, and Deputy Associate White House Counsel. In his roles as Envoy, Hussain ... spearheaded efforts on countering antisemitism and protecting religious minorities in Muslim-majority countries.... Rashad received his J.D. from Yale Law School, where he served as an editor of the Yale Law Journal, and Master’s degrees in Public Administration (Kennedy School of Government) and Arabic and Islamic Studies from Harvard University....

More Delays Likely Ahead In Challenge To Texas "Heartbeat" Abortion Law

The procedural complexities in Whole Woman's Health v. Jackson-- the challenge by abortion providers to Texas' "heartbeat" abortion ban-- have increased as Justice Gorsuch yesterday granted challenger's request to issue a certified copy of the judgment immediately rather than in the normal 25-day time frame.  However Gorsuch remanded the case to the 5th Circuit, rather than to the district court. National Law Journal explains the implications of this action:

In its opposition, Texas Solicitor General Judd Stone argued that the justices’ holding that the four licensing officials could be sued “turned on its tentative resolution of a question of Texas Law, and ‘Texas courts and not [the Supreme Court] are the final arbiters of the meaning of state statutory directions.’” A remand to the district court, he argued, would prevent the four officials from asking the appellate court to certify the state law question of the officials’ enforcement authority to the Texas Supreme Court.

If Texas does indeed ask the appellate court to certify that question to the Texas Supreme Court, resolution of the constitutional challenge to the law will be delayed indefinitely.

8th Circuit Hears Oral Arguments In Religious Challenge To Health Care Transgender Anti-Discrimination Rules

On Wednesday, the U.S. 8th Circuit Court of Appeals heard oral arguments in Religious Sisters of Mercy v. Becerra. (Audio of full oral arguments.) In the case, a North Dakota federal district court granted a number of Catholic-affiliated health care and health insurance entities, and several Catholic employers, an injunction barring enforcement against them of anti-discrimination rules that require them to provide (or provide insurance coverage for) transgender transition procedures. Aleteia has an extensive report on the oral arguments.

Tribe Sues Claiming Energy Project Violates Its Religious Rights

The Center for Biological Diversity announced yesterday:

The Fallon Paiute-Shoshone Tribe and Center for Biological Diversity sued the U.S. Bureau of Land Management Wednesday over its approval of the Dixie Meadows geothermal energy project, which could dry up nearby springs and harm an extremely rare amphibian, the Dixie Valley toad.

The complaint (full text) in Fallon Paiute-Shoshone Tribe v. U.S. Department of the Interior, (D NV, filed 12/15/2021), includes a claim that approval of the project violates the Religious Freedom Restoration Act:

188. The Tribe and its members’ sincerely held religious beliefs involve quiet contemplation and reflection at Dixie Meadows Hot Springs, including the surrounding landscape. Tribal members’ compliance with these beliefs is a religious exercise.

189. Defendants’ approval of the Project creates government-imposed coercive pressure on the Tribal members to change or violate their religious beliefs. As detailed in this Complaint, approval of the Project damages the sacred value of the Hot Springs by altering its undisturbed state, and damages Tribal members’ ability to carry out religious practices by creating noise, light, and visual pollution.

The complaint points out:

59. On November 9, 2021—14 days before BLM approved the Project—Interior, the U.S. Department of Agriculture, the U.S. Department of Transportation, the U.S. Department of Energy, the U.S. Environmental Protection Agency, CEQ, the Advisory Council on Historic Preservation, and the Tennessee Valley Authority entered into a memorandum of understanding (“MOU”) concerning the protection of indigenous sacred sites.

60. The MOU recognizes that the spiritual and religious practices and traditions of indigenous peoples are closely tied to the natural world and specific places.

Defense Authorization Act Requires Religious Exemptions From COVID Vaccine Mandate

On Wednesday, the Senate gave final approval to S.1605, the National Defense Authorization Act for Fiscal Year 2022 (full text) by a vote of 88-11. The bill, which was previously passed by the House, now goes to the President for his signature. The bill-- which is over 2000 pages in length-- includes the following provision:

Section 720: The Secretary of Defense shall establish uniform standards under which covered members may be exempted from receiving an otherwise mandated COVID-19 vaccine for administrative, medical, or religious reasons.

5th Circuit Denies En Banc Review In Teacher Qualified Immunity Case

In Oliver v. Arnold, (5th Cir., Dec. 15, 2021), the U.S. 5th Circuit Court of Appeals by a vote of 7-10 denied an en banc rehearing in a suit against a Texas high school teacher by a former student who refused on religious grounds to transcribe the Pledge of Allegiance as part of an assignment. The student alleges that she was retaliated against by the teacher.  The district court refused to grant summary judgment on the teacher's qualified immunity defense and a 3-judge appellate panel, in a 2-1 decision, agreed. (See prior posting). Judge Ho filed a 19-page opinion concurring the denial of an en banc  rehearing of the panel's decision. Three dissenting opinions spanning 15 pages were also filed. Among the issues raised by these are whether the teacher's motive in giving the assignment is relevant and whether the Supreme Court's flag salute cases apply to written school assignments in addition to ceremonies. 

Arizona Asks Supreme Court To Lift, Pending Appeal, Injunction Against Its Genetic-Abnormality Abortion Ban

A petition was filed yesterday with the U.S. Supreme Court seeking a partial stay of a district court injunction that prevents enforcement of Arizona's ban on genetic-abnormality-selective abortions. (See prior posting). The petition (full text) in Brnovich v. Isaacson was filed after the 9th Circuit refused to stay the injunction pending appeal. The petition seeks an injunction while appeals work their way through the appellate courts. SCOTUSblog reports on the Supreme Court filing.

Military Sued After It Withdraws Permission For Selling Religious-Themed Replica Dog Tags

Suit was filed this week against the Department of Defense in a Texas federal district court by a company that creates military-themed replica "dog tags" featuring Army, Marine and Airforce emblems. The emblems are used under trademark licenses from the military services. The company's replica tags-- which are often worn by members of the military and their families-- also feature Biblical verses or religiously inspired phrases. After receiving a complaint from an advocacy organization, the trademark licensing offices of the military services informed the company that it may no longer produce or sell trademark-licensed products that feature religious content. The complaint (full text) in Shields of Strength v. U.S. Department of Defense, (ED TX, filed 12/14/2021) alleges that DoD's actions violate plaintiff's rights under RFRA, the Free Exercise and Establishment clauses as well as its free speech rights. First Liberty issued a press release announcing the filing of the lawsuit.

Court Denies Motion Under RFRA And 1st Amendment To Dismiss Indictments

In United States v. Morales, (SD CA, Dec. 13, 2021), a California federal district court denied a motion to dismiss indictments against three defendants who claimed that the indictments violated their rights under RFRA and the Free Exercise Clause. Among the charges were that defendants induced Imperial Valley Ministry participants to surrender SNAP benefits to the Ministries and that they dispatched IVM participants to panhandle. The court said in part:

The Court finds too attenuated a link between the Government’s prosecution of Defendants for forced labor, document servitude, and benefits fraud and Defendants’ purported religious activities of evangelizing, fundraising, donating to the church, and general operation of IVM programs for there to be a substantial burden, as there remain viable alternative avenues for Defendants to conduct their specified religious activities....

Christian Wedding Photographer Loses Suit Against NY Public Accommodation Law

In Emilee Carpenter, LLC v. James, (WD NY, Dec. 13, 2021), a New York federal district court refused to enjoin the application of New York's public accommodation law to a Christian wedding photographer who refuses on religious grounds to photograph same-sex weddings. The court rejected plaintiff's Free Speech and Free Exercise claims, saying in part:

New York has a compelling interest in ensuring that individuals, without regard to sexual orientation, have “equal access to publicly available goods and services.”...

The crux of Plaintiff’s claims is that her photography is the product of her unique artistic style and vision. Thus, an exemption for Plaintiff’s unique, nonfungible services would necessarily undermine, not serve, the State’s purpose, as it would “relegate [same-sex couples] to an inferior market” than that enjoyed by the public at large....

5th Circuit Denies Injunction Pending Appeal In Challenge To Airline's Vaccine Mandate

In Sambrano v. United Airlines, (5th Cir., Dec. 13, 2021), the U.S. 5th Circuit Court of Appeals, by a 2-1 vote, denied an injunction while an appeal is pending in a challenge by United Airlines employees to the company's vaccine mandate that lacks religious or medical exemptions. The majority in a 3-sentence opinion relied on the reasons stated by the district court in denying a preliminary injunction: namely plaintiffs must show "irreparable injury" in order to obtain an injunction, and mere loss of income is not irreparable-- it can be remedied by recovery of damages. (See prior posting.) 

Judge Ho filed a dissenting opinion, saying in part:

Vaccine mandates like the one United is attempting to impose here present a crisis of conscience for many people of faith. It forces them to choose between the two most profound obligations they will ever assume—holding true to their religious commitments and feeding and housing their children.

To many, this is the most horrifying of Hobson’s choices. And it is a quintessentially irreparable injury, warranting preliminary injunctive relief.

Antisemitism Of Sellers Impacts Court's Decision On Breach Of Contract

In Extended CHHA Acquisition, LLC v. Mahoney, (NY County Sup. Ct., Dec. 3, 2021) a New York trial court granted buyers specific performance of a multi-million dollar contract to purchase a business which sellers attempted to repudiate in order to obtain a better price elsewhere later. The decision is unusual in that anti-Semitism of the sellers was condemned explicitly by, and figured prominently in, the court's opinion. The court said in part:

To be clear, not only did the Seller breach the Purchase Agreement ..., but also the Seller's principals and their agent-representative ... actively took glee ... in being gratuitously abusive and disrespectful of the Buyer's principals and their religious observance. The degree to which [sellers] ... taunted the Buyer's principals to their face and mocked them behind their back because they are Jewish is horrifying and cannot be overstated. Their bigotry is disgusting and shameful, representing the worst and most depraved behavior that has no place in civilized society....

The record also establishes that the Seller worked in bad faith to prevent the closing..... On March 26, 2021, three days prior to the closing, ... Mr. Shemia called to ask to close on Tuesday, March 30, 2021, rather than March 29, 2021, due to Passover.... Mr. Achilarre refused....

Additionally, the Seller is not entitled to dismissal of the Buyer's cause of action for breach of the covenant of good faith and fair dealing.... [T]he evidence of the insidious antisemitism fueling the breach by the Sellers also makes out a claim for breach of the covenant of good faith and fair dealing.

JD Supra has more on the decision.

Local Officials In India Take Aim At Food Carts Selling Eggs

Deccan Herald reported yesterday on the India's most recent religious-cultural controversy-- the sale of eggs by food cart operators. A recent raid by authorities in Ahmedabad confiscated eggs and supplies from street vendors. According to the report:

The place of the humble egg in the street food culture of Gujarat, a state in western India where people take their snacks seriously, has become the latest flashpoint in the growing role of religion in everyday life. Under Prime Minister Narendra Modi, the national government has taken steps in recent years to promote the religion and to sideline Muslims and other groups. 

Emboldened local governments have followed suit, enacting rules in some places that adhere adhere closely to Hindu doctrine. That is especially true in Gujarat, which Modi led for 13 years before becoming prime minister and which is often seen as a laboratory for pushing policies to reshape India along with his Hindu nationalist vision....

Many Hindus are vegetarian, particularly among the elite within India’s traditional caste system, and some of them consider eggs to be meat products.

9th Circuit: Seminary Is Exempt From Title IX In Applying Its Sexual Standards

In Maxon v. Fuller Theological Seminary, (9th Cir., Dec. 13, 2021), the U.S. 9th Circuit Court of Appeals held that Fuller Theological Seminary falls within the religious organization exemption in Title IX even though the school is controlled by its own board rather than an outside religious organization. Plaintiffs sued under Title IX after they were dismissed from the Seminary because, in violation of the school's Sexual Standards, they were in same-sex marriages. The court said that it cannot second-guess the seminary's interpretation of its own religious tenets. Courthouse News Service reports on the decision.

Soap Opera Star Sues ABC Over Religious Exemption To Vaccine Mandate

Litigation over religious exemptions from COVID vaccine mandates continues to grow. Yesterday, Ingo Rademacher-- well known for portraying Jasper Jacks on the ABC soap opera General Hospital-- sued in a California state court after his request for a religious exemption from ABC's vaccine requirement was denied. He argues that the expansive right to privacy afforded by the California state constitution protects both informational privacy and bodily integrity, and can be enforced against private parties. The complaint (full text) in Rademacher v. American Broadcasting Companies, Inc., (CA Super. Ct., filed 12/13/2021) contends:

ABC does not have the authority to force a medical treatment on its employees against their will. Even if it did, it must offer religious exemptions to the forced treatment to anyone who requests one. It cannot discriminate among religions and cannot second-guess the sincerity of one's religious beliefs....

Deadline reports on the lawsuit.

Supreme Court Upholds NY Vaccine Mandate Without Religious Exemption-- This Time Over 14-Page dissent

In Dr. A v. Hochul, (Sup. Ct., Dec. 13, 2021), the U.S. Supreme Court today by a vote of 6-3, refused to enjoin enforcement of New York's COVID vaccine mandate which has no religious exemptions.  This is a companion case to We The Patriots USA v. Hochul which reached a similar result with no Justices filing opinions to accompany the Court's order. (See prior posting.) In Dr. A, Justice Gorsuch filed a 14-page dissent, joined by Justice Alito. The opinion reads in part:

Under the Free Exercise Clause, government “cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.” ...  As a result, we have said that government actions burdening religious practice should be “set aside” if there is even “slight suspicion” that those actions “stem from animosity to religion or distrust of its practices.”...

New York’s mandate is such an action. The State began with a plan to exempt religious objectors from its vaccine mandate and only later changed course. Its regulatory impact statement offered no explanation for the about-face. At the same time, a new Governor whose assumption of office coincided with the change in policy admitted that the revised mandate “left off ” a religious exemption “intentionally.” The Governor offered an extraordinary explanation for the change too. She said that “God wants” people to be vaccinated—and that those who disagree are not listening to “organized religion” or “everybody from the Pope on down.”

Justice Thomas dissented without an opinion. National Law Journal has more on the decision.

Supreme Court Denies Relief In Challenge To NY Vaccine Mandate That Lacks Religious Exemption

In another "shadow docket" case, the U.S. Supreme Court today in a brief Order (full text) denied injunctive relief in We The Patriots USA v. Hochul. Justices Thomas, Alito and Gorsuch dissented. The case was a challenge to the elimination of religious exemptions from New York's requirement that health care workers be vaccinated against COVID. The 2nd Circuit had also denied an injunction. (See prior posting.) CNBC reports on the Court's action.

Exclusion Of Christian School From Scholarship Program Violated Its Free Speech Rights

In Bethel Ministries, Inc. v. Salmon,(D MD, Dec. 10, 2021), a Maryland federal district court held that the free speech rights of a Christian elementary school were violated when the state disqualified it from participating in a scholarship program for disadvantaged students attending private schools. The school lost its eligibility because its handbook set out a policy inconsistent with sexual orientation non-discrimination provisions. The court held that this amounted to an unconstitutional viewpoint-based condition on the school's ability to receive government funding. The court said in part:

Defendants have failed to put forth any evidence that Bethel’s policy has deterred a single prospective applicant from applying for admission at Bethel, let alone any evidence that Bethel has ever denied admission, expelled, or disciplined a student on the basis of sexual orientation.... Instead ... the record reflects that Defendants focused exclusively on the text of Bethel’s handbook....

The text of Bethel’s policy alone is not evidence of discriminatory conduct; the text of the policy is speech.... [E]xcluding Bethel ... based on the text of its admissions policy alone ... is a regulation of speech, not a regulation of conduct....

Not only was Defendants’ decision to exclude Bethel from BOOST eligibility based on Bethel’s speech, but it was based on the specific viewpoints Bethel chose to express in its admissions policy...

ADF issued a press release announcing the decision.

Mom Loses Attempt To Display Menorah At PTA Tree Lighting Ceremony

In Lyons v. Carmel Unified School District, (ND CA, Dec. 10, 2021), a California federal district court denied a temporary restraining order sought to allow the mother of Jewish children in a public school to display a 6-foot inflatable menorah at the PTA's tree lighting ceremony. The school was only willing to permit plaintiff to bring a small menorah to hang as a tree decoration. Rejecting plaintiff's Establishment Clause claim, the court said in part:

Plaintiffs contend that the event advances Christian religions over other religious ... by allowing display of Christian holiday symbols – the tree and ornaments – but banning display of non-Christian holiday symbols such as a menorah....  

Defendants argue that they have not referred to the tree lighting event as involving a “Christmas” tree. Even assuming that the event is viewed as involving the decoration and display of a Christmas tree, however, that would not implicate the Establishment Clause. The Supreme Court has held that “[t]he Christmas tree, unlike the menorah, is not itself a religious symbol.” Cty. of Allegheny v. Am. C.L. Union Greater Pittsburgh Chapter, 492 U.S. 573, 616 (1989)....

The court also rejected plaintiff's free speech claim because the school offered plaintiff the opportunity to reserve School grounds for her own event where she could display the menorah.

Recent Articles and Books of Interest

From SSRN:

• Helen L. Norton, A Framework for Thinking About the Government's Speech and the Constitution, (University of Illinois Law Review, Forthcoming).
• Raphael Cohen-Almagor, Indivisibilité, Sécurité, Laïcité: The French Ban on the Burqa and the Niqab, (French Politics (19 October 2021)).
• Abdelkader Mohamed Sghaier Derbali, The Importance of Establishing an International Zakat Fund for the Service of Humanity, (November 29, 2021).

From elsewhere:

• Steven H. Sholk, A Guide To Election Year Activities of Section 501(c)(3) Organizations, (Practicing Law Institute, 2021 edition).

Recent Books:

• Philip Jenkins, Climate, Catastrophe, and Faith-- How Changes in Climate Drive Religious Upheaval, (Oxford Univ. Press, May 2021).
• Benny Morris & Dror Ze'evi, The Thirty-Year Genocide-- Turkey’s Destruction of Its Christian Minorities, 1894–1924, (Harvard Univ. Press, May 2021).
• Michael D. Breidenbach, Our Dear-Bought Liberty-- Catholics and Religious Toleration in Early America, (Harvard Univ. Press, May 2021).
• Evan Haefeli (ed.), Against Popery-- Britain, Empire, and Anti-Catholicism, (Univ. Virginia Press, Dec. 2021).

Denial Of Religious Exemptions To Vaccine Mandate Violated Free Exercise Rights

In Grantonz v. Earley, (ND OH, Dec. 10, 2021), an Ohio federal district court issued a temporary restraining order preventing the Cleveland Municipal Court from enforcing its COVID vaccine mandate against two employees (a bailiff and a court reporter) who sought, but were denied, religious exemptions. The court said in part:

Where the Cleveland Municipal Court Order compels Plaintiffs to choose between following their religious beliefs or forfeiting their jobs, it significantly burdens their free exercise of religion and is not neutral. Further, by setting up a mechanism for exemptions which are granted at Defendants’ discretion and without an opportunity for appeal, AO 2021-05 is not generally applicable....

The Cleveland Municipal Court’s Administrative Order AO 2021-05 does not pass the test of strict scrutiny. Defendants have not articulated compelling reasons for denial of religious exemptions. In the October 2, 2021 letters to Plaintiffs, in fact, Defendants provided no reasons whatsoever. A policy, such as the one before this Court, that infringes the free exercise of religion, that does not serve interests of the highest order and is not narrowly tailored to achieve those interests cannot survive strict scrutiny. 

6th Circuit Hears Arguments In Challenge To Ban On Marriage Ceremonies By Clergy Ordained Online

The U.S. 6th Circuit Court of Appeals heard oral arguments on Thursday in Universal Life Church Monastery v. Nabors. (Audio of full oral arguments). In the case, a Tennessee federal district court held that the Universal Life Church and two of its ministers have standing to challenge Tennessee's ban on solemnization of marriages by clergy who received online ordination. It also held that the state Attorney General, District Attorney Generals and County Clerks cannot claim sovereign immunity and are proper defendants. (See prior posting.)  Courthouse News Service reports on the arguments. [Thanks to Scott Mange for the lead.]

Texas State Court Holds That SB8-- Heartbeat Abortion Law-- Is Unconstitutional

In Van Stean v. Texas Right To Life, (TX Dist. Ct., Dec. 9, 2021), a Texas state trial court issued a declaratory judgment concluding that SB8, the Texas "heartbeat" abortion law, is unconstitutional under the Texas state constitution as well as the 14th Amendment. In a 48-page opinion, it concluded:

A. Standing for uninjured person. SB 8's grant of standing to "any person" to be awarded "no less than $10,000" and a mandatory injunction without showing harm to himself, taken from a person who has not harmed him, violates the Texas Constitution's "open courts" provision and is unconstitutional.

B. Punishment without due process. SB 8's mandate that trial courts "shall" award "no less than $10,000" to an unharmed claimant from a defendant who did him no harm is punishment and not compensation that will deprive persons of property without due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution.

C. Delegation of executive power to private persons. SB 8's grant of enforcement power to "any person" is an unlawful delegation of power to private persons that violates the Texas Constitution's separation of powers provision and is unconstitutional.

Volokh Conspiracy reports on the decision.

Supreme Court Says Texas Heartbeat Abortion Law Can Be Challenged In Court

The U.S. Supreme Court today in Whole Woman's Health v. Jackson, (Sup. Ct., Dec. 10, 2021), held that abortion providers may sue one set of defendants in their challenge to Texas "heartbeat" abortion law. Eight of the Justices (all but Justice Thomas) concluded that Texas still involved one set of state officials in enforcement of the heartbeat abortion ban. Plaintiffs may challenge the statute by suing the state officials who have disciplinary authority over medical licensees who violate the ban. Thus Texas failed to completely insulate the law from pre-enforcement challenge. 

Justice Thomas filed a dissenting opinion arguing in part:

The principal opinion then proposes that the Texas Medical Board may enforce S. B. 8 under §164.055 of the Texas Occupations Code. Thus, on that view, S. B. 8 permits the Medical Board to discipline physicians for violating the statute despite the Act’s command that “the requirements of this subchapter shall be enforced exclusively through . . . private civil actions,” “[n]otwithstanding . . . any other law.” .... By its terms, S. B. 8’s saving clause preserves enforcement only of laws that “regulate or prohibit abortion.” 

Chief Justice Roberts, joined by Justices Breyer, Sotomayor and Kagan concluded that the Attorney General and court clerks should also be able to be sued in a challenge to the law. His opinion says in part:

The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison....  Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”... The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.

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

My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions....

This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed....

What are federal courts to do if, for example, a State effectively prohibits worship by a disfavored religious minority through crushing “private” litigation burdens amplified by skewed court procedures, but does a better job than Texas of disclaiming all enforcement by state officials? Perhaps nothing at all, says this Court....

Houston Public Media reports on the decision.

Then in the other challenge to the Texas law, United States v. Texas, (Sup. Ct., Dec. 10, 2021), the Court, over the dissent of Justice Sotomayor, dismissed the writ of certiorari as improvidently granted.

Today Is International Human Rights Day

Today, December 10, is United Nations Human Rights Day, marking the 73rd anniversary of the General Assembly's adoption of the Universal Declaration of Human Rights. This year's theme is "Reducing inequalities, advancing human rights". Article 18 of the Universal Declaration of Human Rights provides:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Yesterday, President Biden issued a Proclamation (full text) declaring today Human Rights Day and the beginning of Human Rights Week.

People's Tribunal In Britain Finds China Guilty Of Genocide Against Uyghurs

The Uyghur Tribunal, an independent People's Tribunal set up last year in Britain to investigate China’s actions against Uyghur, Kazakh and other Turkic Muslim populations, yesterday issued a 63-page Summary Judgment (full text). It concluded:

180. Torture of Uyghurs attributable to the PRC is established beyond reasonable doubt.

181. Crimes against humanity attributable to the PRC is established beyond reasonable doubt by acts of: deportation or forcible transfer; imprisonment or other severe deprivation of physical liberty; torture; rape and other sexual violence; enforced sterilisation; persecution; enforced disappearance; and other inhumane acts.

It then went on to find China guilty of genocide through its imposed birth control and sterilization policies designed to reduce the Uyghur population. Article II(d) of the Genocide Convention includes in the definition of Genocide: " Imposing measures intended to prevent births within the group." The Tribunal said in part:

190. Accordingly, on the basis of evidence heard in public, the Tribunal is satisfied beyond reasonable doubt that the PRC, by the imposition of measures to prevent births intended to destroy a significant part of the Uyghurs in Xinjiang as such, has committed genocide.

191. This Judgment, with no evidence of any mass killing, may be thought to diminish the perceived status of genocide as a crime. In one way it may do that, and if so, in one way, not necessarily a bad thing. The use of superlatives ... when attached to tragedy brings public attention, sometimes at a cost to other tragedies able to attract less attention despite being as serious.

The Tribunal however expressed some unease over its genocide finding, saying in part:

183. The Tribunal recognises that this may be the first public evidence-based determination of a genocide under Article II(d) of the Convention (or of crimes under statutes in similar terms).

184. The Tribunal would, as a whole, prefer not to make such a finding and to allow findings of genocide in law to match more closely the likely general public understanding of the word.

185. The Tribunal recognises that a finding of genocide based on control of childbirth may even seem to some close to lawful management by governments of societies elsewhere; in the back of some minds might be awkward and uncomfortable considerations of worldwide unsustainable population growth.

Florida Hotel Settles EEOC Suit On Behalf Of 7th Day Adventist For $99,000

EEOC announced this week that a Sunny Isles Beach, Florida resort hotel, Noble House Solé, has agreed to settle a religious discrimination claim by paying $99,000 to a terminated employee, and also to create an anti-discrimination policy and to train employees regarding religious accommodation.  The complaint was brought by a Seventh Day Adventist employee who worked a room attendant. She needed Saturdays off. According to the EEOC:

Solé Miami accommodated the employee’s Sabbath observance for over ten months after she began her employment without incident.  Unfortunately, when a new supervisor came onboard, Solé Miami scheduled the employee to work on a Saturday.  When the employee missed work, Solé Miami immediately terminated her, even though employees that missed work for non-religious reasons were given multiple warnings prior to termination.