Court Will Hear Arguments Today In "Christian Flag" Case

The U.S. Supreme Court this morning will hear oral arguments in Shurtleff v. City of Boston. In the case, the U.S. 1st Circuit Court of Appeals, applying the "government speech" doctrine, upheld Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. (See prior posting.) (The flag features a red Latin Cross on a blue background in the upper left portion of an otherwise blank white flag.)  The SCOTUSblog case page has links to amicus briefs, briefs of the parties and other filings in the case. The oral arguments, which begin at 10:00 am EST, will be broadcast live at this link.  When the transcript and recording of the arguments become available later today, I will update this post to link to them.

UPDATE: Here are links to the transcript and audio of today's arguments.

Religious Freedom Day, January 16, 2022

Largely lost in a flood of other developments, yesterday (January 16) was Religious Freedom Day, the anniversary of the adoption of the Virginia Statute for Religious Freedom by the Virginia General Assembly in 1786. President Biden last week issued a Proclamation (full text) officially marking the day.

Virginia Governor Creates Commission To Combat Antisemitism

Virginia's newly-inaugurated Governor Glenn Youngkin has issued an Executive Order (full text) creating a Commission to Combat Antisemitism. According to the Executive Order:

The purpose of this Commission is to study antisemitism in the Commonwealth, propose actions to combat antisemitism and reduce the number of antisemitic incidents, as well as compile materials and provide assistance to Virginia’s public school system and state institutions of higher education in relation to antisemitism and its connection to the Holocaust.

The Commission shall make recommendations to the Governor and General Assembly with the goal of identifying ways to reverse increasing antisemitic incidents in the Commonwealth.

According to a press release from the Governor's office, the Order was one of nine Executive Orders and two Executive Actions taken by Youngkin on Saturday, the day on which he was inaugurated.

California Settles Suit Over Aztec Prayer In Ethnic Studies Curriculum

A Settlement Agreement (full text) was reached last week (Jan. 13) with the California Department of Education in a suit that had been filed (see prior posting) challenging a prayer to Aztec gods that was in included in the state's Ethnic Studies Model Curriculum. According to an announcement of the agreement by the Thomas More Society:

As a result of the settlement, that the California Department of Education will promptly remove prayers (also labeled as chants or affirmations) from the Aztec and Yoruba (or Ashe) religions from the state-approved curriculum and will issue a public notice of such to all California school districts, charter schools and county offices of education. The department, along with the State Board of Education, also agreed not to encourage the use of the two challenged chants in California public schools.

NY City Council Member Loses Claim This His Expulsion Was Because Of Hostility To His Christian Anti-LGBT Views

In King v. City of New York, (SD NY, Jan. 14, 2022), a New York federal district court rejected a group of 1st and 14th Amendment, as well as state law, challenges by former New York City Council member Andy King to his expulsion from City Council.  He was removed from Council because of alleged ethical misconduct. However King claims that the true motivation of the Council members who voted to expel him was their dissatisfaction with his routine opposition to pro-LGBT issues stemming from his Christian beliefs that sex between members of the same sex is a sin. The court rejected both his free speech and free exercise claims.  Discussing King's free exercise claims, the court said in part:

In support of his Free Exercise claim, King relies on the same factual allegations as those that buttress his Free Speech claim-- namely, Defendants' hostility toward his political views on LGBT issues. But these allegations do not raise the plausible inference that Defendants acted out of hostility against King on the basis of his Christian faith.

Recent Articles of Interest

 From SSRN:

• Cyra Akila Choudhury, Racecraft and Idntity in the Emergence of Islam as Race, (January 6, 2022).
• Vivencio Ballano, Law, Morality, and Catholic Social Teaching on Family Living Wage: Analyzing the Adequacy and Morality of the Minimum Wage in the Philippines, (Cogent Social Sciences, 8:1 (2022).
• Noah Kane, Treat Thy Neighbor as Thyself? Equal Protection and the Scope of RLUIPA's Equal Terms Clause, (Cardozo Law Review, Vol. 43, No. 2, 2022).
• Shlomo Pill, Freedom to Sin: A Jewish Jurisprudence of Religious Free Exercise, (Regent University Law Review, Vol. 34, No. 1, 2021-2022).
• David Abraham, Group Rights and Individual Minority Rights in Immigrant Societies, then and Now, (November 15, 2021).
• Justin Aimonetti, Derivative Immunity as Savior from State Actor Status, (34 Regent University Law Review 107 (2021)).

From SmartCILP:

• Matthew J. Stanford, Practical Piety: Divining Religion's Role in Reproductive Policymaking, [Abstract], 39 Boston University International Law Journal 1-40 (2021)).
• Symposium: Jewish Law in Comparative Context, Touro Law Review, Vol. 36, Issue 4 (2021).
• Adena Berkowitz, My Body, My Choice: Biblical, Rabbinic, and Contemporary Halakhic Responses to Abortion, 37 Touro Law Review 1133 (2021).
• Yehiel Kaplan, Mercy in American Law: The Promise of the Adoption of the Outlook of Jewish Law, 37 Touro Law Review 1193 (2021).

Split En Banc 9th Circuit Denies Review of Refusal To Enjoin School Vaccine Mandate that Lacks Religious Exemption

The U.S. 9th Circuit Court of Appeals has denied en banc  reconsideration of the refusal to enjoin, pending appeal, a school district's COVID vaccine mandate that does not provide for religious exemptions. In Doe v. San Diego Unified School District, (9th Cir., Jan. 14, 2022), the court denied en banc review of the panel's decision, with various judges filing opinions dissenting from, or concurring with, the denial. Judge Bumatay, in a 21-page opinion joined by six other judges (and concurred in by one judge with senior status), dissented, saying in part:

Simply put, the District can’t have it both ways by allowing secular exemptions but prohibiting religious ones. If the District offers any secular vaccine exemption with a similar risk profile to a religious exemption, it must satisfy strict scrutiny to exclude a religious exemption. The Constitution forbids the District from picking and choosing its preferred secular exemptions while disfavoring religious exemptions. And this remains true in times of crisis.

Judges Berzon and Bennett filed an opinion concurring in the denial of reconsideration which offered rebuttals to each point made by Judge Bumatay in his dissent. Judge Bress, joined by Judge Bade, and Judge Forrest filed a briefer dissenting opinions as well.

Ecclesiastical Abstention Doctrine Bars Adjudication Of Some Claims In Dispute Between Church Factions

In In re Thomas, (TX App., Jan.14, 2022), Jan. 14, 2022), a Texas state appellate court ruled on the extent to which the ecclesiastical abstention doctrine bars various claims in a dispute between two factions in a Baptist church over who should be its pastor and which faction controls its large bank account. The court held that the ecclesiastical abstention doctrine bars civil courts from ruling on the deacons' authority to terminate the church's pastor and on whether one group is obligated to relinquish control over the church's financial records and bank account. However, the ecclesiastical abstention doctrine did not necessarily bar adjudication of claims for breach of fiduciary duty, conversion of church funds and access to the church's books, records and bank statements.

Supreme Court Grants Review In Case Of Football Coach's Praying At 50-Yard Line

Yesterday the U.S. Supreme Court granted certiorari in Kennedy v. Bremerton School District, (Docket No. 21-418, cert. granted, 1/14/2022). (Order List.)  In the widely followed case, the U.S. 9th Circuit Court of Appeals upheld a high school's actions against a football coach who insisted on prominently praying at the 50-yard line immediately after football games. The coach was placed on paid administrative leave and given negative performance reviews. He did not reapply to coach the following year. A divided 9th Circuit denied en banc review. (See prior posting.) SCOTUS blog reports on the Supreme Court's grant of review. [Corrected. An earlier version of this post inaccurately stated that the coach was "fired".]

Air Force Officer Sues After Accommodation For Religious Objection To COVID Vaccine Is Denied

Suit was filed last week in a Georgia federal district court by a female Air Force officer who has served in the military for 25 years and who was forced into retirement when she refused for religious reasons to take any of the current COVID vaccines.  Her request for a religious accommodation was denied.  The complaint (full text) in Air Force Officer v. Austin, (MD GA, filed 1/6/2022), alleges in part:

52. As a Christian, Plaintiff believes that abortion is a grave evil and contrary to her faith.

53. Plaintiff sincerely believes that receiving a vaccine that was derived from or tested on aborted fetal tissue in its development would violate her conscience and is contrary to her faith....

55. In addition, in accordance with her faith, Plaintiff believes that her “body is the temple of the Holy Spirit” (1 Cor. 6:19-20), and that injection with a novel substance of unknown long-term effects would violate this belief.

Plaintiff claims that the Air Force's actions violate RFRA and the 1st Amendment. Thomas More Society issued a press release announcing the filing of the lawsuit. 

Challenge to Louisiana COVID Worship Restrictions Dismissed As Moot

In Spell v. Edwards, (MD LA, Jan. 12, 2022), a Louisiana federal district court, on remand from the 5th Circuit, again dismissed a challenge to a now expired COVID Order limiting the size of religious gatherings. The court explained:

On July 6, 2021, the U.S. Court of Appeals for the Fifth Circuit vacated this Court’s November 10 dismissal order, and remanded with instructions to reconsider Plaintiffs’ First Amendment Free Exercise Clause claim in light of new guidance from the U.S. Supreme Court, specifically, Roman Catholic Diocese of Brooklyn v. Cuomo, ... South Bay United Pentecostal Church v. Newsom, ... and Tandon v. Newsom....

Now, with the benefit of the Supreme Court’s guidance, the Court reaches the same result as before: Plaintiffs’ consolidated actions will, again, be dismissed. In short, the Supreme Court’s most recent jurisprudence cannot save Plaintiffs’ claims for injunctive relief because the challenged restrictions have expired on their own terms and there is no indication whatsoever that crowd-size limits on indoor assembly will be reinstated. Thus, an injunction is a moot point. Further, Plaintiffs’ demand for damages fails because there is not now, and never has been, a “clearly established” right to unrestricted religious assembly.... Thus, Defendants are shielded from liability by qualified immunity.

RNS reports on the decision.

California Sues Health Care Sharing Ministry For Fraud

California's Attorney General announced yesterday that the state has filed a false statements and fraudulent business practices civil lawsuit against a company purporting to operate as a Health Care Sharing Ministry. The complaint (full text) in State of California v. Aliera Companies, Inc., (CA Super., filed 1/12/2022), alleges in part:

Aliera created and marketed its health insurance products as “health care sharing ministry” (HCSM) plans. HCSMs are nonprofit corporations historically comprised of members of a particular religious community, who contribute money to a shared pool with the understanding that the money would pay for catastrophic or surprise healthcare costs pursuant to the members’ shared religious tenets....

... Aliera ...  advertised that members’ monthly payments would go towards the healthcare costs of other members. To the contrary, Aliera retained as much as 84% of every member payment, leaving around 16 cents of every dollar for member expenses. Aliera arbitrarily rejected member requests for payment of healthcare costs in order to continue retaining these member payments for itself and the individual defendants.

Fourteen states and the District of Columbia, have initiated actions against Aliera for its sale and operation of its purported HCSM plans. This includes the California Department of Insurance, which issued a cease and desist order on or about March 8, 2020.

7th Circuit: Church's Suit Against Rescinded COVID Order Is Moot

In Elim Romanian Pentecostal Church v. Pritzker, (7th Cir., Jan. 11, 2022), the U.S. 7th Circuit Court of Appeals affirmed an Illinois federal district court's denial of an injunction against a now-rescinded COVID order by the Governor of Illinois limiting the number of people who could attend a religious service. The district court based its decision on mootness grounds, even though the 7th Circuit had previously held the case was not moot. The 7th Circuit now said however:

More than 19 months have passed since they were last subject to an attendance limit, and the Governor has not suggested that another is likely.  A legal conclusion that a rescinded order violated the Constitution would not entitle anyone to an injunction....

Connecticut Elimination Of Religious Exemption From School Vaccination Requirement Is Upheld

 In We the Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (D CT, Jan. 11, 2022), a Connecticut federal district court upheld a Connecticut statute that eliminates the religious exemption from the state requirement for vaccinations for school children. Medical exemptions remain in the statute, and students with previous religious exemptions are allowed to retain them. The court summarized its conclusions in part as follows:

Count One, alleging a violation of the Free Exercise Clause, is dismissed because mandatory vaccination as a condition to school enrollment does not violate the Free Exercise Clause. However, even if P.A. 21-6 was not foreclosed by Supreme Court and Second Circuit precedent, it is constitutional because it is a neutral law of general applicability which is rationally related to a legitimate state purpose.

CT Insider reports on the decision.

6th Circuit Tells District Court To Reconsider Injunction Denial Against School Mask Order

In Resurrection School v. Hertel, (6th Cir., Jan, 12, 2022), the U.S. 6th Circuit Court of Appeals vacated a Michigan federal district court's denial of a preliminary injunction against Ingham County, Michigan's COVID order requiring elementary school students, including those in religious schools, to wear masks in the classroom. It sent the case back to the district court for it to reconsider  the question of whether parents of religious school students are entitled to an injunction pending appeal. The court based its order on the fact that the district court relied on a 6th Circuit decision that was subsequently vacated by an en banc order.

Tai Chi Class Sites Are Not Places of Worship For Tax Exemption Law In Ontario

In Fung Loy Kok Institute of Taoism v. Municipal Property Assessment Corporation, (ON Super. Ct., Jan. 6, 2022), an Ontario (Canada) appellate court held that a Taoist organization was not entitled to a municipal property tax exemption for its satellite sites at which Tai Chi classes are held. The court concluded that these sites are not "places of worship" as that term is used in Ontario's Assessment Act. The court said in part:

Use of a property as a place of worship is different than other uses to which religious organizations can put property.  Evangelization efforts for example....

MPAC argues that the application judge accepted that religious expression and activities occur at the Satellite Sites.  However, in order to create an exemption for those properties, those activities must constitute acts of worship, a more narrow form of activity than the simple act of conducting a practice that has religious connotation.

CTV News reports on the decision.

"Spiritual Distress" From Employer's Vaccine Mandate Is Not "Irreparable Injury"

In Romano v. Blue Cross Blue Shield of Michigan, (ED MI, Jan. 3, 2022), a Michigan federal district court denied a preliminary injunction to an employee who was to be fired because he refused to comply with his employer's COVID vaccine mandate.  Plaintiff's refusal was based on religious objections and he claimed the employer's denial of his request for a religious exemption violated Title VII, the Michigan Elliot-Larsen Civil Rights Act, the Free Exercise Clause and the Michigan Constitution. However, the court concluded that plaintiff did not meet the "irreparable injury" requirement necessary to support an injunction.  The court said in part:

Plaintiff claimed that his damages are irreparable because he will be fired, lose prestige and seniority, have his reputation marred, and suffer "spiritual distress."... But none of the alleged harms are irreparable....

Although the Court is sympathetic to religious persons who must confront the "impossible choice," Plaintiff never developed a sound legal argument for why the injury attributable to "impossible choice" is irreparable.... Plaintiff instead cited cases that enjoined government COVID19 vaccine mandates—not private COVID-19 vaccine mandates.... As Judge Pittman noted in a similar case, although "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," the First Amendment does not apply to private companies like Defendant....

Going forward, other plaintiffs may have an avenue for injunctive relief in Title VII COVID-19 vaccine mandate cases based on stronger legal arguments and facts.... Yet it is not the Court's role to advance legal and factual arguments for litigants; the Court resolves disputes based on the arguments that litigants assert.

National Law Review reports on the decision.

Recent Articles of Interest

From SSRN:

• Lawrence G. Sager & Nelson Tebbe, Discriminatory Permissions and Structural Injustice, (Minnesota Law Review, Vol. 106, p. 803, 2021).
• Eric R. Claeys, Dobbs and the Holdings of Roe and Casey,    (Georgetown Journal of Law & Public Policy, Vol. 20, No. 1, 2022, Forthcoming).
• Stephan Sonnenberg, Adrian Von Bernstorff & Thinley Namgay, Finding the Right Path: Towards a Buddhist Sense of Corporate Ethics in Bhutan, (Seoul National University Asia Center - Asia Review Vol. 11(3) (2021)).

From SmartCILP:

• Yael Efron, Michelle LeBaron, Maged Senbel & Mohammed Wattad, Like a Prayer? Applying Conflicts with Religious Dimensions Theory to the "Muezzin Law" Conflict, 63 Washington University Journal of Law & Policy 119-142 (2020).
• Kevin W. Connell, The Bad News of Good News Club: Obliterating the Wall between Church & State, 28 William & Mary Bill of Rights Journal 569-586 (2020).

Rhode Island Vaccine Mandate For Health Care Workers Upheld

In Dr. T v. Alexander-Scott, (D RI, Jan. 7, 2022), a Rhode Island federal district court refused to issue a preliminary injunction in a free exercise challenge to a Rhode Island Department of Health regulation requiring all health care workers to be vaccinated against COVID.  The Regulation contains a narrow medical exemption, but no religious exemption. The court (which had previously denied a temporary restraining order) concluded that the regulation is both neutral and generally applicable. The court said in part:

The Regulation’s medical exemption serves the state’s principal purpose of protecting public health. A failure to exempt the limited number of individuals whose health a vaccine may jeopardize would be counterproductive to that goal to the extent of illogicality. There is no suggestion of a discriminatory bias against religion.

The court also concluded that since the regulation is silent as to religious exemptions, it does not preclude compliance with the reasonable accommodation requirements of Title VII of the 1964 Civil Rights Act.

Ministerial Exception Does Not Apply To Liberty University Art Teacher

In Palmer v. Liberty University, Inc., (WD VA, Dec. 1, 2021), a Virginia federal district court held that the ministerial exception doctrine does not apply to prevent an age discrimination suit by an art professor at Liberty University whose contract was not renewed. Concluding that the teacher is not a "minister" for purposes of the ministerial exception, the court said in part:

Palmer's educational background is largely secular.... At the core of Palmer's daily responsibilities was teaching art classes on subjects like drawing and sculpture. For a brief time in the mid-1990s, she also taught humanities courses.... She concedes that she began each class with a short prayer or psalm reading, but she did not otherwise integrate Christian lessons into her classes....  Occasionally, her art lessons would reflect Biblical stories or lessons...., but this was not, apparently, the norm....

Outside of class, Palmer did not significantly participate in her students' spiritual lives. She did not bring her students to church services.... She occasionally counseled them on personal matters outside the immediate scope of her teaching duties, and would have periodic conversations about spirituality with students, but she never led them in Bible study, guided them in scripture, or gave them sermons.

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.