Department of Education Reaffirms BYU's Exemption From LGBTQ Anti-Discrimination Requirements

The U.S. Department of Education, Office of Civil Rights, issued a determination letter (full text) on Feb. 8, 2022, dismissing a complaint filed by LGBTQ students at Brigham Young University.  The University bans same-sex romantic relationships among its students.  The OCR letter affirms that the University is exempt from the non-discrimination provisions of Title IX:

to the extent that the application of those provisions would conflict with the religious tenets of the University's controlling religious organization that pertain to sexual orientation and gender identity.

The University issued a press release announcing the OCR determination. Salt Lake Tribune reports on the determination and reactions to it.

Suit By Jewish And Catholic Plaintiffs Challenge "Key To NYC" Vaccination Requirement

A suit raising 1st and 14th Amendment claims was filed this week in a New York federal district court by five Orthodox Jews (including a rabbi and a yeshiva teacher), and by a Catholic  man, challenging New York City's "Key To NYC" program.  Key To NYC requires individuals to be vaccinated for COVID in order to enter restaurants, entertainment venues and fitness facilities. Plaintiffs contend that they have religious objections to the COVID vaccine.  Their religious objections are set out at length in the complaint (full text) in Jane Doe 1 v. Adams, (ED NY, filed 2/7/2022).  Some of the religious objections are similar to those raised in many other cases, i.e. objections to vaccines developed with the the use of fetal cell lines originating from abortions.  However, the religious objections cited by the Jewish plaintiffs include contentions that have not commonly been raised in past litigation. Here are two examples of the cited beliefs:

Submitting to a government dictate that conditions freedom on vaccination is a form of slavery and subjugation. This violates numerous commandments in the Torah that require one to remember and internalize the great Exodus from slavery in ancient Egypt....

Rabbi Moshe Schreiber, better known as the Chasam Sofer (1762 to 1839), an ancestor of John Doe 1’s wife and the leading Orthodox Rabbi in opposition to the Reform Judaism movement, stated the famous aphorism Chadash Assur Min Hatorah: That which is new is prohibited by the Torah. This was specifically aimed at the attempts to overhaul and change ancient traditions and customs, by the followers of Reform Judaism. The notion that healthy people should be viewed as sick until they can prove their innocence by vaccination in order to be part of society is a new concept that is being forced on humanity as part of the “New Normal” and “Great Reset.” This newfangled posture in human relations that is being imposed by force, has no basis in the Torah....

Thomas More Society issued a press release announcing the lawsuit.

 

Illinois Wildlife Code Requirement Survives Free Exercise Challenge

In Tranchita v. Callahan, (ND IL, Feb. 9, 2022), an Illinois federal district court rejected a free exercise challenge to requirements of the Illinois Wildlife Code that led to the seizure of four coyotes from Tomi Tranchita who cared for orphaned coyotes in her suburban Chicago backyard.  Under Illinois law, a person can possess coyotes only if they have both a Breeder Permit and a Hound Running Permit. The requirements for obtaining a Hound Running Permit effectively prevent keeping of coyotes in urban or suburban areas.  Tranchita held a Breeder Permit, but had been unable to renew her Hound Running Permit.  She contends that hound running, i.e. chasing of coyotes by dogs, violates her religious, ethical and moral beliefs.  She argued that requiring her to possess a permit to engage in such a cruel practice violates her free exercise rights. The court held that the Permit requirement is neutral and generally applicable, and the state had a rational basis for the requirement.  The court also rejected Tranchita's equal protection, due process and pre-emption challenges.

Report On Role Of Christian Nationalism In January 6 Insurrection Released

Yesterday, the Baptist Joint Committee for Religious Liberty (BJC) and the Freedom From Religion Foundation released a report titled Christian Nationalism and the January 6, 2021 Insurrection (full text).  The Introduction to the Report says in part:

This report describes Christian nationalism and recounts its impact on the day itself as well as in the weeks leading up to the insurrection. Drawing on reporting, videos, statements, and images from the attack and its precursor events, this report contains the most comprehensive account to date of Christian nationalism and its role in the January 6 insurrection.

Christian nationalism is a political ideology and cultural framework that seeks to merge American and Christian identities, distorting both the Christian faith and America’s constitutional democracy. Christian nationalism relies on the mythological founding of the United States as a “Christian nation,” singled out for God’s providence in order to fulfill God’s purposes on earth.

First Coptic Christian Picked As Head Of Egypt's Supreme Constitutional Court

 AP reports that Egyptian President Abdel Fattah al-Sisi has appointed Boulos Fahmy, a Coptic Christian, as Chief Judge of Egypt's highest court, the Supreme Constitutional Court. This is the first time a Christian has headed the Court.  According to AP:

President Abdel Fattah el-Sissi picked the 65-year-old Fahmy from among the court’s five oldest of 15 sitting judges, as is prescribed by law.

10th Circuit: Muslim Terrorism Inmate Can Sue Under RFRA For Damages

In Ajaj v. Federal Bureau of Prisons, (10th Cir., Feb. 9, 2022), the U.S. 10th circuit Court of Appeals reversed a Colorado federal district court's dismissal of a religious freedom suit brought by an inmate who is serving a sentence of 114 years for terrorist acts related to the 1993 World Trade Center bombing. The court summarized its holding:

Ahmad Ajaj, a practicing Muslim, ... sued to obtain injunctive relief against BOP and damages from BOP officials [alleging] violations of his rights to free exercise of religion under the Religious Freedom Restoration Act (RFRA).... He contends that the district court erred by holding (1) that his claim against the BOP for denial of his right to group prayer was moot and (2) that RFRA did not provide a claim for damages against government officials in their individual capacities.... [W]e ... reverse the challenged rulings. The mootness ruling was based on a misconception of the evidence....  And the Supreme Court has now ruled in Tanzin v. Tanvir ... that damages claims are permissible under RFRA.... We reject Mr. Ajaj’s contention that the doctrine of qualified immunity is inapplicable to RFRA claims, but we decline to resolve whether the individual defendants in this case have shown entitlement to qualified immunity, leaving that matter to the district court in the first instance.

Lipstadt Finally Gets Hearing On Her Nomination As Anti-Semitism Monitor

Yesterday, the U.S. Senate Foreign Relations Committee held a hearing on the nomination of Emory Prof. Deborah Lipstadt to be Special Envoy to Monitor and Combat Anti-Semitism, with the rank of Ambassador.  (Video of full hearing.) (Transcript of Prof. Lipstadt's prepared statement.) Lipstadt is a widely-known scholar of the Holocaust. A hearing on Lipstadt's nomination has been delayed for months by Republicans, particularly Foreign Relations Committee member Sen. Ron Johnson, because of a Tweet last March by Lipstadt characterizing a statement by Johnson as white supremacy.  Politico reports on this aspect of the Lipstadt hearing. Washington Post reports more generally on the hearing.

Suit Challenging Jehovah's Witness Beliefs Dismissed

In Gasparoff v. Watch Tower Bible & Tract Society of Pennsylvania, (D AZ, Feb. 4, 2022), an Arizona federal district court dismissed a pro se complaint which attacked the beliefs of Jehovah's Witnesses regarding blood transfusions and asked the court "to determine if it is constitutional to use Amendment I in order to propagandize suicidal ideology under the guise of peaceful religious practice." The court said in part:

Plaintiff has no viable legal grounds to advance this case.... Federal Courts can not be arbiters of scriptural interpretation; controversies over religious principles fall outside this Court’s jurisdiction....  Furthermore, the Amended Complaint reflects that Plaintiff has no personal stake in this action, and therefore has no standing to litigate this case.

Arrest Of Parishioners For Wrongful Eviction Did Not Violate RLUIPA

In Colorado Springs Fellowship Church v. City of Colorado Springs,  (D CO, Feb. 4, 2022), a Colorado federal district court dismissed  RLUIPA as well as 1st and 14th Amendment claims against the city and various law enforcement officials brought by a church and eight of its parishioners.  The church leased an apartment that was to be for the use of members who were in need of housing but could not afford to rent a habitable dwelling.  Amisha and Nicholas Gainer were identified as occupants of the Apartment in the lease. The church found that the Gainers had been acting in violation of the lease. Instead of following a formal eviction route, church members merely showed up at the apartment to move the Gainers out.  The Gainers threatened the parishioners with a gun and baseball bat.  The parishioners then retreated and called the police. When the police arrived, they arrested the parishioners, who now are suing. Dismissing plaintiffs' RLUIPA claim, the court said in part:

Defendants argue ... that their conduct ... has no relation to land use regulations and consequently does not fall within the scope of the statute....  Plaintiffs argue that the actions of the DAO and the CSPD were premised on the Plaintiffs’ failure to secure an eviction proceeding within the land use laws of the City..... Further, Plaintiffs argue that “leasing [the Apartment] (and all actions attendant thereto) were as much a part of its religious actions as a Sunday Service.”...

The Court finds that the Plaintiffs’ allegations do not implicate any land use regulations, as defined by the statute.

Georgia Legislature Passes Revised Anti-Boycott of Israel Bill

On January 27, the Georgia legislature gave final passage to House Bill 383 (full text). The bill enacts a revised version of the state's law on participation in boycotts of Israel in reaction to a federal district court's decision last year holding the prior version unconstitutional on free speech grounds. (See prior posting). Like the original version, the new bill requires companies contracting with the state to certify that they are not currently engaged in a boycott of Israel and will not do so during the contract.  The new bill, however, applies only to companies and not to individuals, and applies only to state contracts of $100,000 or more. In a Jan. 31 press release, CAIR said that if the bill is signed by the governor, it will again challenge it in court.

Recent Articles of Interest

From SSRN:

• Farrah Ahmed, Secularism and Human Rights as Subterfuge: In Defence of a Hindu Nationalist Citizenship Regime (January 31, 2022).
• Sakin Tanvir, Hate Speech vs Free Speech: The Ongoing Debate and Challenges in the Globalized World, (December 31, 2021).
• Allen R. Kamp, The Jurisprudence of Bostock, (January 27, 2022).
• Justin Driver & Emma Kaufman, The Incoherence of Prison Law, (Harvard Law Review, Vol. 135, No. 2, p. 515, 2021).
• Beatrice Jessie Hill & Mae Kuykendall, Uprooting Roe, (12 Houston Law Review Online 50 (2022)).
• Michal Shur-Ofry & Noy Lion, Copyright Neutrality? Lessons from Mein Kampf, (Cardozo Arts & Entertainment Law Journal, Vol. 40 (Forthcoming)).

From SmartCILP and elsewhere:

• Martha Minow, Not in the Room Where It Happens: Adversariness, Politicization, and Little Sisters of the Poor, [Abstract], 2020 Supreme Court Review 35-82 (2020).
• Journal of Law and Religion, Volume 36, Issue 3, December 2021.

South Dakota Governor Signs Bill Barring Transgender Women On Women's Sports Teams

Yesterday, South Dakota Governor Kristi Noem signed Senate Bill 46 (full text) which prohibits transgender women from participating in women's sports teams or events in South Dakota schools and colleges.  The ban includes intramural and club events as well as inter-school competitions. It also extends to any accredited school, not just to public schools; to events sponsored by any activities association or organization; and to colleges under control of the Board of Regents or Board of Technical Education. NBC News reports on the governor's action.

National Prayer Breakfast Held Yesterday

President Biden spoke yesterday at the National Prayer Breakfast (full text of remarks) which, this year was held at the U.S. Capitol Visitor Center. Vice-President Harris also delivered remarks.  C-Span has video and a transcript of the full breakfast. A day before the Breakfast, Sen. Chris Coons, one of the Breakfast organizers, told Religion News Service that this year's Breakfast is intended to be a "positive reset" of the 70-year old event which, in recent years, has become controversial.  This year's breakfast attendees were limited to members of Congress, speakers and spouses.  The keynote speaker this year was Bryan Stevenson, founder of the Equal Justice Initiative and author  of the book “Just Mercy.”

Ohio Law On Disposal Of Tissue After Abortion Is Enjoined

In Planned Parenthood Southwest Ohio Region v. Ohio Department of Health, (OH Com. Pl, Jan. 31, 2022), an Ohio state trial court issued a preliminary injunction barring enforcement of an Ohio law (SB27) that was to take effect next week which requires embryonic and fetal tissue after a surgical abortion to be cremated or interred. The court held that reproductive autonomy and freedom of choice in health care are fundamental rights under the Ohio Constitution. It also pointed out that the effect of the law is to prevent surgical abortions before 13 weeks of pregnancy. Before that time, embryonic and fetal tissue cannot be separated from other pregnancy tissue which is required to be disposed of as infectious waste and cannot be interred or cremated. The court concluded that there is a substantial likelihood that plaintiffs will succeed on their claims that the law violates the due process and equal protection provisions of the state Constitution, and that it is unconstitutionally vague. Christian Post reports on the decision.

TRO Granted To 2 Military Members Denied Religious Exemptions From Vaccine Mandate

In Navy Seal I v. Biden, (MD FL, Feb. 2, 2022), a Florida federal district court issued a temporary restraining order enjoining the military from enforcing its COVID vaccination mandate against two individual service members until Feb. 11 in order to maintain the status quo until a hearing on a preliminary injunction is held.  The service members faced imminent removal from command positions for refusing vaccination. The court said in part:

The record in this action establishes that the two service members are very likely to prevail on their claim that their respective branch of the military has wrongfully denied a religious exemption from COVID-19 vaccination. The record creates a strong inference that the services are discriminatorily and systematically denying religious exemptions without a meaningful and fair hearing and without the showing required under RFRA (while simultaneously granting medical exemptions and permitting unvaccinated persons to continue in service without adverse consequence).

Liberty Counsel issued a press release announcing the decision. (See prior related posting.)

Health Care Company Will Pay $75,000 To Settle Christian Nurse's Religious Accommodation Claim

The EEOC announced yesterday that Wellpath, a provider of health services in correctional institutions, has agreed to settle a religious discrimination claim brought by the EEOC on behalf an Apostolic Pentecostal Christian nurse who was hired for a Texas jail.  According to the EEOC:

Before reporting to work, the nurse told a Wellpath human resources employee that her religious beliefs require her to dress modestly and to wear a scrub skirt instead of scrub pants while at work. In response, Wellpath denied the request for her religion-based accommodation and rescinded the nurse’s job offer.

Under the settlement agreement, Wellpath will pay the nurse $75,000 in back pay and damages, and will provide anti-discrimination training and notice of rights to employees.

Ashram Loses RLUIPA "Equal Terms" Challenge

In Divine Grace Yoga Ashram Inc. v. County of Yavapai, (D AZ, Jan. 31, 2022), an Arizona federal district court rejected a RLUIPA claim by an Ashram that objects to the county's insistence it obtain a Conditional Use Permit to continue to operate its retreats and daily meditations on a 12.6 acre ranch property next to the Coconino National Forest.  Plaintiff contends that the Permit requirement violates the "equal terms" provision of RLUIPA because public and charter schools in the same area zoned Residential Single Family are exempt from the requirement.  The court concluded however that public and charter schools are not similarly situated to plaintiff.  State law prohibits localities from imposing zoning restrictions on such schools. That makes them different.

Court Rejects Religious and Other Challenges To Takeover Of Abandoned Homes

Honkala v. U.S. Department of Housing and Urban Development,  (ED PA, Jan. 31, 2022) involves an unsuccessful challenge to the Philadelphia Housing Authority's (PHA) attempted eviction of homeless families who took over abandoned vacant housing owned by PHA.  A community activist and the Poor People’s Economic Human Rights Campaign staged a series of such takeovers.  Among the challenges raised by plaintiffs were religious freedom claims under RFRA and RLUIPA. The court explains:

[Plaintiffs assert] they are “currently possessed of ethical, moral, humanitarian and/or religious belief(s) and action(s), including but not limited to those rooted in a Judeo-Christian tradition of caring for the least and most needy amongst us, which federal law therefore respects and identifies as a ‘religious belief’ pursuant to the definition thereof as set forth in 42 U.S.C. §2000cc-5.”... Plaintiffs allege that their work “building and/or repairing and/or converting real property, such as the public housing property at issue…is therefore considered a ‘religious exercise,’ and Defendants are unable to satisfy their “burden of proving that eviction is the least restrictive means of fostering any compelling interest it may otherwise invoke.....

The Pennsylvania federal district court rejected plaintiffs' RFRA claim because RFRA applies only to actions of the federal government and not to that of states and municipalities.  While PHA holds the property in trust for HUD, HUD did not cause their injuries.  The court also rejected plaintiffs" RLUIPA claim because the claim does not involve a zoning issue and because plaintiffs have no property interest in the house.  The court additionally rejected several other legal theories put forward by plaintiffs, but said in part:

As a means of focusing attention on governmental failure to make effective use of assets available to reduce homelessness, this action succeeds. And if principles of natural law provided the controlling standard, Plaintiffs would have a compelling moral argument: “In cases of need, all things are common property, so there would seem to be no sin in taking another’s property, for need has made it common.” Thomas Aquinas, Summa Theologica 2.2, Question 66, Article 7. But civil law is not designed to answer such ultimate moral questions.

Cert. Filed In Synagogue Picketing Case While Plaintiffs Are Ordered To Pay $158K Attorneys' Fees Of Picketers

A petition for certiorari (full text) was filed recently in Brysk v. Herskovitz, (Sup. Ct., filed Jan. 19, 2022). In the case, the U.S. 6th Circuit Court of Appeals dismissed a suit by synagogue members against anti-Israel pickets who have picketed services at the Beth Israel Synagogue in Ann Arbor, Michigan every week since 2003.  A majority held that the picketers were protected by the First Amendment. (See prior posting.)

Meanwhile, a Michigan federal district court ordered plaintiffs in the case to pay defendants' attorneys' fees of $158,721.75. Gerber v. Herskovitz, (ED MI, Jan. 25, 2022). The court said in part:

The Court is aware that awarding attorney fees to defendants under §1988 may have a chilling effect on the willingness to bring legitimate civil rights claims, and it acknowledges that “awarding attorney fees against a nonprevailing plaintiff in a civil rights action is ‘an extreme sanction, and must be limited to truly egregious cases of misconduct.’” ... However, this is that rare case where such an award is appropriate and warranted. Plaintiffs failed to allege a basic element for each of their claims; their claims were groundless from the outset. As Judge Clay observed, it is “clear that [Plaintiffs brought] this suit to ‘silence a speaker with whom [they] disagree,’” which the First Amendment does not permit....

MLive and JTA report on the decision.

Church Challenges City's Limits On Its Offering Meals To Homeless

Suit was filed last week in an Oregon federal district court by a church challenging a city's ordinance that limits it from offering free meals to the needy more than two days per week.  The complaint (full text) in  St. Timothy’s Episcopal Church v. City of Brookings, (D OR, filed 1/28/2022), says that the new limits were imposed after city residents complained of the homeless gathering around the church. It contends that the restrictions violate RLUIPA as well as the 1st and 14th Amendments, saying in part:

Plaintiffs believe that God and scripture have directed them to continue serving their community by offering St. Timothy’s meal program more than two days per week to ensure that people in need can have access to at least one hot, nutritious meal every day of the week.

... The City’s land use and zoning regulations ... deny and restrict, and will deny and restrict, Plaintiffs’ religious use of St. Timothy’s’ property, is not supported by a compelling government interest, and is not the least restrictive means of furthering any compelling governmental interest.

Reason reports on the lawsuit.

High Schooler Sues Over Suspension For Religiously Motivated Anti-Gay Remarks

 A Michigan high school student sued this week for injunctive and declaratory relief as well as damages contending that his 3-day suspension violated his free speech rights as well as various other rights under state law and the Michigan and U.S. constitutions.  The school contended that the student had violated the school's Bullying/ Cyberbullying/ Harassment policy.  The complaint (full text) in Stout v. Plainwell Community Schools, (WD MI, filed 1/27/2022), alleges that:

Plaintiff is a Christian, who adheres to the historic and traditional Christian doctrine contained in the Bible regarding all life issues, including homosexual conduct....

According to the complaint, school officials told plaintiff's parents that their student:

was accused of “laughing” at some racial and homophobic “jokes” that other kids had told during the summer band camp months ago; that he had participated in an off campus, private group chat/text session during which he texted that God would not accept homosexual conduct because it is a sin; and that he had private, on campus conversations regarding religious beliefs with friends in the band that, while not directed towards any particular person, was overheard by another student.

MLive reports on the lawsuit.

Part Of Texas Anti-BDS Law Held Unconstitutional

In A & R Engineering and Testing, Inc. v. City of Houston, (SD TX, Jan. 28, 2022), a Texas federal district court held unconstitutional a portion of the Texas statute requiring companies entering contracts with governmental entities to certify that they do not, and will not during the term of the contract, boycott Israel. The court said in part:

[Plaintiff] denies any anti-Jewish motivation and testified that his desire to boycott has nothing to do with Jewish people (American or Israeli) but is focused on the acts of the Israeli government.... Nevertheless, the legislation at issue did not originate in an historical vacuum.... [A]nyone with a basic knowledge of modern history knows that one of the first anti-Jewish acts taken by the Nazis after they took power in Germany was the boycott of Jewish businesses in 1933.

The court found a portion of the law unobjectionable:

[T]he court agrees that the mere refusal to engage in a commercial/ economic relationship with Israel or entities doing business in Israel is not "inherently expressive" and therefore does not find shelter under the protections of the First Amendment.

However the court went on to find a First Amendment problem with the provision in the statute that requires businesses also to refrain from "otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations" with Israel or Israeli entities.  The court said in part:

[A]ctions intended to penalize or inflict economic harm on Israel could include conduct protected by the First Amendment, such as giving speeches, nonviolent picketing outside Israeli businesses, posting flyers, encouraging others to refuse to deal with Israel or Israeli entities, or sponsoring a protest which encourages local businesses to terminate business activities with Israel.

The court issued a preliminary injunction limited to this plaintiff, refusing a state-wide injunction or one covering other businesses.  Arab News reports on the decision.

Recent Articles of Interest

From SSRN:

• Michael J. Broyde & Shlomo Pill, Building the Set Table: An Introduction to the Jurisprudence of Rabbi Yehiel Mikhel Epstein’s Arukh ha-Shulhan in Contrast to the Mishnah Berurah, (33 Dine Israel 1 (2020)).
• Sofia Dash, Decoding Female Genital Mutilation through A Sociological Lens, (January 17, 2022).
• Chad G. Marzen, The Gospels and American Jurisprudence,       (January 20, 2022).
• Barbara P. Billauer, JOB and Justice: The Tortious Liability of God for Wrongful Interference, (December 5, 2021).
  Antony Kolenc, Religious Liberty in the Age of COVID, (UNT Dallas College of Law, Accessible Law 2021).
• Pritam Baruah, Human Dignity in Indian Constitutional  Adjudication, (Jimmy Chia-Shin Hsu (ed.) Human Dignity in Asia: A Dialogue Between Law and Culture (Cambridge University Press, Forthcoming 2023)).
• Richard W. Garnett, et. al., Roe and Casey Were Grievously Wrong and Should Be Overruled, (Harvard Journal of Law and Public Policy, Vol. 17, 2021).
• Guha Krishnamurthi & Peter Salib, Bostock and Conceptual Causation, (Yale J. Reg. Notice & Comment (July 22, 2020)).
• Raphaela Andres & Olga Slivko, Combating Online Hate Speech: The Impact of Legislation on Twitter, (ZEW - Centre for European Economic Research Discussion Paper No. 21-103 (2021)).
• Zahra Takhshid, Kidney, Money, and the Shī‘ah Implementation of the Rule of Necessity, (UCLA Journal of Islamic and Near Eastern Law, Vol. 19, No. 1, 2021).

Court Refuses To Enjoin Medical Campus' Vaccination Mandate

In Jane Does 1-11 v. Board of Regents of the University of Colorado, (D CO, Jan. 27, 2022), a Colorado federal district court refused to grant a preliminary injunction against the COVID vaccination requirements of the University of Colorado's Medical Campus.  Under a revised policy, employees are entitled to a religious accommodation if the accommodation would not unduly burden the health and safety of others.  Medical students are not entitled to religious accommodations.  The court found the policy neutral and generally applicable, and so subject only to rational basis review.  The court said in part:

[T]he Court does not see how offering employees the opportunity to request a religious accommodation could amount to treating comparable secular activity more favorably than religious exercise. For one thing, Plaintiffs have not shown that employees and students are comparable in this context....

[A]lthough the University has determined it can accommodate some employees by allowing them to work remotely, Plaintiffs have made no showing that a similar accommodation for students is practicable.  And ... the ... Policy treats employees and students differently because of Title VII of the Civil Rights Act of 1964, which protects the former but not the latter....

The court also concluded that the presence of medical exemptions does not prevent the Policy from being generally applicable.

Michigan Settles Suit Over Placement Policy Of Catholic Adoption Agency

 A Michigan federal district court this week in Buck v. Hertel,(WD MI, Jan. 26, 2022), issued an Order implementing a settlement agreement between the state of Michigan and St. Vincent Catholic Charities which is a licensed child placement agency placing children for foster care and adoption. The Order provides in part:

MDHHS shall not take any action against St. Vincent’s CPA license or terminate or not renew the Contracts because St. Vincent does not: i. certify or approve a same-sex or unmarried couple as a foster parent or adoptive parent, or ii. conduct a home evaluation for a same-sex or unmarried couple, or iii. place a foster child with a same-sex or unmarried couple for foster care or adoption.

Under the settlement, the state also agreed to pay St. Vincent's attorneys' fees of $550,000. As reported by Fox 47 News, the state agreed to the settlement after the U.S. Supreme Court's decision in Fulton v. City of Philadelphia

Delivery Service Settles EEOC Suit Charging Failure To Accommodate Church Attendance

The EEOC announced yesterday that Tampa Bay Delivery Service, an Amazon delivery provider, has settled a religious discrimination suit brought by the EEOC on behalf of a driver who was fired for refusing Sunday shifts in order to attend church services. The company will pay $50,000 in damages, will provide training on religious discrimination to managers and dispatchers, and will designate a religious accommodation coordinator.

Transit System's Rejection Of Religious Ads Violates Synagogue's Free Speech Rights

In Young Israel of Tampa, Inc. v. Hillsborough Regional Transit Authority, (MD FL, Jan. 20, 2022), a Florida federal district court held that the free speech rights of an Orthodox Jewish synagogue were violated when the local transit system (HART) refused to accept its display ad promoting its "Chanukah on Ice" event. HART refused the ad under its rule against advertisements that primarily promote a religious faith or religious organization. The court said in part:

Here, HART’s Advertising Policy constitutes viewpoint discrimination.... HART allowed advertisements for a secular holiday event with ice skating and seasonal food ..., but it disallowed an ice skating event with seasonal food that was in celebration of Chanukah. Thus, HART’s ban ... targets the “specific motivating ideology or the opinion or perspective of the speaker.”

The court added that even if HART's policy were viewpoint neutral, it does not have objective, workable standards for applying it.

Trial Set On Why Street Preachers Were Removed From Gay Pride Event

In Waldrop v. City of Johnson City, Tennessee,(ED TN, Jan. 26, 2022), a Tennessee federal district court, in a case on remand from the 6th Circuit, set for trial a suit by two street preachers who were removed from a Pride event. The court said in part:

A genuine issue of material fact exists as to whether the officers removed Plaintiffs from Founders Park, and if so, whether they did so for a content-neutral or content-based reason.

11th Circuit Undercuts State Attempt To Limit Inmate's Right To Sue

In a prisoner Free Exercise case, the U.S. 11th Circuit Court of Appeals has issued an opinion which bars a tactic by which prison officials might obtain dismissal of a prisoner suit without reaching the merits of the case.  The so-called "three-strike" provision in 28 U.S.C. § 1915(g) limits an inmate's ability to bring a suit in forma pauperis, i.e. without paying the usual filing fee, if the inmate has previously had three suits dismissed for lack of merit.  In Maldonado v. Baker County Sheriff's Office, (11th Cir., Jan. 25, 2022), a three-strike plaintiff (along with a co-plaintiff) filed suit in forma pauperis in Florida state court contending that they were prevented from attending Jummah prayer services. Defendants then removed the case to federal court and sought dismissal under the three-strike provision.  The court held

The plain and ordinary meaning of § 1915(g) is clear—it only applies to cases commenced in federal court by a prisoner who sought and was granted in forma pauperis status in that court.  As such, § 1915(g) does not apply to actions, like the one here, brought by a three-strikes litigant in state court that was removed to federal court by another party.

Nevada Prison's Ban On Prayer Oil Violates RLUIPA

In Johnson v. Baker, (9th Cir., Jan. 26, 2022), the U.S. 9th Circuit Court of Appeals held that the Nevada prison system violated RLUIPA when it banned a Muslim inmate from possessing a small amount of scented oil in his cell for use when he prayed, saying in part:

Given that Nevada’s prison regulation prevents Johnson from praying according to his faith, it has substantially burdened his religious exercise. Nevada also fails to show that its regulation is the least restrictive means of furthering its compelling interest....

Nevada argues that prison officials depend on their sense of smell to detect contraband and scented oil could be used to cover the smell of contraband, such as drugs....

Nevada’s prison regulations as to other scented products undermines the State’s argument. It’s undisputed that Nevada prisoners may keep many scented products in their cells....  [T]hese products all have “strong scents” and are available to purchase in larger quantities than the half-ounce of scented oil sought by Johnson.

Oregon Court Rejects Part Of Its Earlier Decision In Wedding-Cake Dispute

In Klein v. Oregon Bureau of Labor and Industries, (OR App., Jan. 26, 2022), the Oregon Court of Appeals, in a case on remand from the U.S. Supreme Court, reaffirmed its prior decision in part in a challenge to the religious refusal by a bakery (Sweetcakes by Melissa) to provide a wedding cake for a same-sex marriage. The court reaffirmed its conclusion that the refusal violates the anti-discrimination provisions of the state's public accommodation law that prohibits discrimination on the basis of sexual orientation. It held that the U.S. Supreme Court's decision in Fulton v. City of Philadelphia does not change its earlier conclusion, saying in part:

the Kleins have not demonstrated that Fulton alters our prior conclusion that ORS 659A.403 is a “generally applicable” law for purposes of Smith, nor our related conclusion that, under Smith, the application of the law to Aaron’s conduct of denying cake-making services based on sexual orientation does not violate the Kleins’ rights under the Free Exercise Clause.

The court however did set aside the damage order entered by the Oregon Bureau of Labor and Industries, finding that, in light of the U.S. Supreme Court's Masterpiece Cakeshop decision, BOLI’s decision on damages violates the Free Exercise Clause.  The court said in part:

[T]he prosecutor’s closing argument apparently equating the Kleins’ religious beliefs with “prejudice,” together with the agency’s reasoning for imposing damages in connection with Aaron’s quotation of Leviticus, reflect that the agency acted in a way that passed judgment on the Kleins’ religious beliefs, something that is impermissible under Masterpiece Cakeshop.

The Oregonian reports on the decision.

Universal Life Church Can Move Ahead With Suit On Marriage Solemnization Right

In Universal Life Church Monastery Storehouse v. McGeever, (WD PA, Jan. 25, 2022), a Pennsylvania federal district court refused to dismiss a suit against Allegheny County, Pennsylvania court officials who refuse to allow Universal Life Church ministers to solemnize marriages. the court said in part:

[A[ live case or controversy exists. Universal has alleged that its ministers are being singled out as “illegitimate” and unworthy of solemnizing marriages in the Commonwealth. According to Universal, this “singling out” has chilled the exercise of its ministers’ First Amendment rights. This harm is ongoing and exists whether Defendants’ offices, in fact, refuse to issue licenses for marriages performed by Universal’s ministers.

Today Is International Holocaust Remembrance Day

Today is International Holocaust Remembrance Day as designated by United Nations Resolution 60/7 (full text), adopted by the General Assembly in 2005.  January 27 is the anniversary of the liberation of Auschwitz-Birkenau. Yesterday, President Biden announced the names of 12 individuals he intends to appoint to the United States Holocaust Memorial Council.  As chair, he will appoint Stuart Eizenstat.

3rd Circuit Hears Oral Arguments In Title VII Reasonable Accommodation Case

Yesterday, the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Groff v. DeJoy.  In the case, a Pennsylvania federal district court (full text of district court opinion) dismissed Title VII claims brought by an Evangelical Christian postal worker who resigned after receiving warning letters and suspensions for refusing to work on Sundays. The district court rejected claims of religious discrimination and held that plaintiff had been offered shift swapping that met the "reasonable accommodation" requirement of Title VII.  The Third Circuit has not previously decided an issue on which the Circuits are split-- whether an employer must wholly eliminate a conflict between work and religion in order for an accommodation to be reasonable under Title VII. The district court concluded that complete elimination is not required.

9th Circuit: Fact Issues Remain As To Prison's Confiscation of NOI Texts

 In Jones v. Slade, (9th Cir., Jan. 24, 2022), the U.S. 9th Circuit Court of Appeals reversed a district court's grant of summary judgment and held that there remains genuine issues of fact in connection with an Arizona prison's confiscation of six hip-hop music CD's and two Nation of Islam texts which plaintiff received by mail.  The Court held that questions remain as to selective enforcement of prison rules as to the music CD's.  It concluded that plaintiff's RLUIPA and Free Exercise claims relate to his religious practice of reading Nation of Islam texts authored by Elijah Muhammad during Ramadan.  The court said in part:

RLUIPA defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” ... That means that RLUIPA protects not only practices deemed orthodox by some recognized religious organization,  but also idiosyncratic practices—practices “not compelled by, or central, to a [given] system of religious belief.”

The court held that as to both plaintiff's RLUIPA claim and his 1st Amendment Free Exercise claim, "there is a genuine issue of fact as to whether denying Jones essential religious texts during Ramadan is a substantial burden on his religious exercise...."  Tucson Sentinel reports on the decision.

Biden and Harris Issue Statement In Support Of Roe v. Wade

Last Saturday (Jan. 22) was the 49th anniversary of the decision in Roe v. Wade that established a constitutional right to abortion.  On Saturday, the White House issued a statement from President Biden and Vice President Harris (full text), saying in part:

The Biden-Harris Administration strongly supports efforts to codify Roe, and we will continue to work with Congress on the Women’s Health Protection Act. All people deserve access to reproductive health care regardless of their gender, income, race, zip code, health insurance status, immigration status, disability, or sexual orientation. And the continued defense of this constitutional right is essential to our health, safety, and progress as a nation.

We must ensure that our daughters and granddaughters have the same fundamental rights that their mothers and grandmothers fought for and won on this day, 49 years ago....

10th Circuit Affirms Dismissal Of Churches Challenge To Colorado COVID Restrictions

In Denver Bible Church v. Polis, (10th Cir., Jan. 24, 2022), the U.S. 10th Circuit Court of Appeals affirmed a district court's denial of a preliminary injunction in a free exercise challenge by two churches and one of their pastors to COVID restrictions imposed by the state of Colorado.  It similarly affirmed the dismissal of a challenge to the federal government's award of COVID relief aid to the state.  The court dismissed most of the claims against the state on mootness grounds, finding that changes in state restrictions have lifted all COVID limits on churches. The facial challenge to the state's emergency disaster statute was dismissed because the statute is neutral and generally applicable.  The court then dismissed for lack of standing plaintiffs' claim that the federal government violated RFRA by distributing COVID relief aid to Colorado while the state was violating plaintiffs' free exercise rights.

Free Exercise Challenges To OSHA Vaccine Mandate Dismissed By Supreme Court In Light Of NFIB Decision

 As has been widely reported, earlier this month in National Federation of Independent Business v. OSHA, (Sup. Ct., Jan. 13, 2022), the Supreme Court held that OSHA exceeded its statutory authority in ordering vaccination of employees in all businesses with more than 100 employees.  Today, the Supreme Court dismissed 13 cases in which the same OSHA regulation was challenged. (Order List). Among those dismissed were two cases brought by religious institutions that raised specific religious freedom objections to the vaccine mandate: Southern Baptist Theological Seminary v. OSHA, (Docket No. 21A246, dismissed 1/24/2022) and Word of God Fellowship, Inc. v. OSHA, (Docket No. 21A250, dismissed 1/24/2022). More details of the challenges in those two cases are discussed in this prior posting.

Recent Articles of Interest

 From SSRN:

• SpearIt, 9/11 Impacts on Muslims in Prison, (Michigan Journal of Race & Law, Vol. 27, p. 101, 2021, forthcoming).
• Gila Stopler, From Private Prejudice to Public Policy: How Religious Conservatives Use Liberalism to Control Women’s Bodies the U.S. and Israel in Comparative Perspective,  (Forthcoming in 30 William and Mary Bill of Rights Journal,).
• Bruce A. Green & Rebecca Roiphe, ABA Model Rule 8.4(g), Discriminatory Speech, and the First Amendment, (Hofstra Law Review, Vol. 50, 2022).
• Ronit Irshai, Tanya Zion-Waldoks & Bana Shoughry, The First Female Qadi in Israel's Shari`A (Muslim) Courts: Nomos and Narrative, (Shofar 38.2 (2020): pp. 229–262).

From SmartCILP:

• Therese M. Stewart, Judicial Words Matter, 21 Journal of Appellate Practice & Process 433-454 (2021).
• George Nicholson, Appendix A: Court-Clergy Outreach, 21 Journal of Appellate Practice & Process 505-520 (2021).

Senate Confirms Joseph Donnelley As Ambassador To The Vatican

On Jan. 20, the U.S. Senate, by voice vote, confirmed Joseph Donnelley of Indiana to be U.S. Ambassador to the Vatican. AP reports:

Donnelly is a Democrat who served six years in the U.S. House from a South Bend-area district before winning election to the Senate in 2012. He lost his 2018 reelection bid to Republican Mike Braun.

Donnelly has bachelor’s and law degrees from the University of Notre Dame, where he has been a part-time professor while also working for the Washington law firm Akin Gump.

Notre Dame President Rev. John Jenkins called Donnelly “a person of deep Catholic faith and commitment to public service.”

 [Thanks to Scott Mange for the lead.]

Pastor's Suit Against Church For Mishandling Investigation Dismissed On Ecclesiastical Abstention Grounds

In Taylor v. Evangelical Covenant Church, (IL App., Jan. 12, 2022), an Illinois state appeals court dismissed on ecclesiastical abstention grounds a suit by a pastor against his former church for breach of contract and intentional interference with economic advantage. Plaintiff claimed that the church carelessly handled an investigation into malicious accusations against him of sexual assault supposedly occurring some forty years earlier, before plaintiff became a pastor. Plaintiff was suspended during the investigation, and after the suspension was lifted he was never returned to his former position. The court said in part:

Even viewed in the light most favorable to him, plaintiff’s claims arise from a wholly internal investigation and suspension conducted by his church. Plaintiff’s claims are inexorably intertwined with defendant’s investigation as to whether he was fit to serve as a pastor, given the accusation of sexual misconduct against him. That is, the substance of plaintiff’s complaint relates to internal matters of church governance and discipline. Ecclesiastical abstention is required because this case necessarily involves matters of internal discipline....  [N]o matter how egregiously defendant may have departed from proper investigatory procedures, the subject matter of the dispute makes abstention compulsory.

Ann Arbor, Michigan City Council Condemns Synagogue Picketers

The Ann Arbor, Michigan City Council on January 18 adopted a Resolution Condemning Antisemitism (full text) which explicitly condemns a group of individuals who have picketed the local Conservative synagogue every Saturday for the last 18 years.  The Resolution reads in part:

Whereas, A small group has picketed the Beth Israel Congregation, an Ann Arbor synagogue, every Saturday for 18 years, erecting antisemitic signs along the Washtenaw Avenue right-of-way including those that allege conspiracy and tarnish the Star of David, creating an atmosphere of hate;

RESOLVED, That the Ann Arbor City Council condemns all forms of antisemitism, and in particular the weekly antisemitic rally on Washtenaw Avenue; calls upon the persons who rally to express antisemitism on Washtenaw Avenue to renounce extremism, disband, and cease their weekly show of aggressive bigotry; and declares its support for the Beth Israel Congregation, their guests, and all members of the Jewish Community in Ann Arbor, each of whom has the right to worship, gather, and celebrate free from intimidation, harassment, and fear of violence.

Last year, the U.S. 6th Circuit Court of Appeals dismissed a suit against the picketers finding that their actions are protected by the 1st Amendment. (See prior posting.) MLive has a detailed report on the Council meeting at which the resolution was adopted.

Supreme Court Assures Further Delay In Challenge To Texas Heartbeat Abortion Law

Yesterday, in In re Whole Woman's Health, (Sup.Ct., Jan. 20, 2022),  the U.S. Supreme Court in a brief Order refused to issue a writ of mandamus requested by Texas abortion providers who are seeking a speedy adjudication of the constitutionality of Texas SB8, the state's "heartbeat" abortion law that essentially bans almost all abortions after six weeks of pregnancy.  Courts, including the Supreme Court, have refused to enjoin enforcement of the Texas law while its constitutionality is being litigated. Earlier this week, the 5th Circuit assured further delay by certifying a state law issue in the case to the Texas Supreme Court instead of remanding the case to the Texas federal district court for it to act on the constitutional question. (See prior posting.) Yesterday, Justice Breyer filed a dissenting opinion that was joined by Justices Sotomayor and Kagan, and Justice Sotomayor filed a dissenting opinion joined by Justices Breyer and Kagan, objecting to the Court's denial of mandamus.  Justice Sotomayor said in part:

Today’s decision shows that any hope that Whole Woman’s Health II might protect the Constitution’s guarantees in this case was illusory. As it turns out, Texas did not even have to amend its law to sidestep the minimal relief this Court left available. Instead, Texas wagered that this Court did not mean what little it said in Whole Woman’s Health II or, at least, that this Court would not stand behind those words, meager as they were. That bet has paid off.... [This Court] accepts yet another dilatory tactic by Texas.... 

This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a State continues to nullify this constitutional guarantee.

Texas Tribune reports on the decision.

Report Criticizes Cardinal Who Later Became Pope For Not Acting On Sex Abuse Reports

A German law firm yesterday released a lengthy report (full text in German) on sexual abuse by clerics and employees in the Archdiocese of Munich and Freising from 1945 to 2019.  The report is of particular interest because then-Cardinal Joseph Ratzinger who later became Pope Benedict XVI headed the Archdiocese from 1977 to 1982. Vatican News Service summarizes the Report's findings:

At least 497 people were abused in the Archdiocese of Munich-Freising over a period of almost 74 years (from 1945 to 2019). Most of them were young; 247 are male victims and 182 are female. Sixty percent of the victims were between the ages of 8-14. The report identifies 235 perpetrators of abuse including 173 priests, nine deacons, five pastoral workers, 48 people from the school environment.

According to NPR:

The report ... contradicts Benedict's long-running denial that he covered up or ignored abuse.

Two of the cases involved two perpetrators who committed the abuse while Ratzinger was in office.... The two were kept in pastoral work after being punished by the judicial system. A third case involved a cleric who had been convicted by a court outside Germany and was put back into service in the Munich archdiocese despite evidence showing Ratzinger knew of the man's past....

The law firm's report also criticizes Cardinal Reinhard Marx, who is currently the archbishop of Munich and Freising, for his role in two cases in 2008.

RFRA Defense Successful For Tribal Member Charged In Protest Over Border Wall Construction

In United States v. Ortega, (D AZ, Jan. 19, 2022), an Arizona federal district court reversed its earlier ruling (see prior posting) and allowed Amber Ortega, a member of the Tohono O’odham Nation, to raise a Religious  Freedom Restoration Act defense in her trial on two misdemeanor charges for violating a closure order at the Organ Pipe Cactus National Monument. Ortega was protesting construction of a border wall at Organ Pipe. At the hearing on Wednesday, the court went on to acquit Ortega.  According to KJZZ News, at the hearing Ortega's new lawyer argued:

[T]he religious act in question was not prayer at Quitobaquito.  It was the act of standing at the construction line and witnessing what she saw as the destruction of her ancestral land.

Former Scientology Members No Longer Bound By Arbitration Agreement

In Bixler v. Superior Court for the State of California, (CA App., Jan. 19, 2022), a California state appellate court, reversing the trial court, held that former Church of Scientology members were not bound by their agreement to submit all disputes with the Church to the Church's Religious Arbitration system when the dispute involves conduct that occurred after plaintiffs left the Church. Plaintiffs reported to the police that "That 70’s Show" star Danny Masterson, who was also a Scientology member, had raped them. In retaliation for their reporting, plaintiffs claim that the Church encouraged its members to engage in an elaborate harassment campaign using the Church's so-called Fair Game tactics. The court summarized its holding:

Individuals have a First Amendment right to leave a religion. We hold that once petitioners had terminated their affiliation with the Church, they were not bound to its dispute resolution procedures to resolve the claims at issue here, which are based on alleged tortious conduct occurring after their separation from the Church and do not implicate resolution of ecclesiastical issues.

New York Post reports on the decision.

U.N. Adopts Resolution Condemning Holocaust Denial

The United Nations General Assembly yesterday adopted by consensus a Resolution (full text) that condemns Holocaust denial or distortion. The Resolution, among other things, calls attention to the role of social media in spreading disinformation and misinformation. A United Nations press release announcing the Resolution points out:

The vote comes on the same day, 80 years ago, during the Wansee Conference, when top Nazi officials discussed and coordinated the genocide of the Jewish people, establishing the system of Nazi death camps.

According to The Hill, Iran "disassociated" from the Resolution.

Faculty Seek To Sever Ties With Their Union Because Of Its Anti-Semitic Positions

Suit was filed last week in a New York federal district court by six faculty members at City University of New York who are seeking to sever all ties with the faculty union known as the Professional Staff Congress. They contend that they are required to use PSC as their exclusive bargaining agent. The complaint (full text) in Goldstein v. Professional Staff Congress/CUNY, (SD NY, files 1/12/2022), alleges in part:

3. All but one of the plaintiffs are Jewish, and several of them resigned from PSC following its adoption in June 2021 of a “Resolution in Support of the Palestinian People” ... that Plaintiffs view as anti-Semitic, anti-Jewish, and anti-Israel. Since the Resolution, PSC has continued to advocate positions and take actions that Plaintiffs believe to be anti-Semitic, anti-Jewish, and anti-Israel, in a manner that harms the Jewish plaintiffs and singles them out for opprobrium, hatred, and harassment based on their religious, ethnic, and/or moral beliefs and identity....

JNS reports on the lawsuit.

Jewish Couple Challenge Denial Of Services By Christian Foster Care Placement Agency

Suit was filed yesterday in a Tennessee state trial court challenging the state's contracting with a Christian child placement agency that refuses to provide foster parent training to those who do not share its Christian beliefs.  A Jewish couple who were denied services sued, along with several other plaintiffs.  A Tennessee statute enacted in 2020 specifically allows faith-based adoption and foster care agencies to refuse to provide services that violate their religious convictions. The complaint (full text) in Rutan-Ram v. Tennessee Department of Children's Services, (TN Chanc. Ct., filed 1/19/2022), alleges that this religious discrimination violates several provisions of the Tennessee state constitution.  Americans United issued a press release announcing the filing of the lawsuit.

5th Circuit Certifies Texas Heartbeat Abortion Case To Texas Supreme Court

In Whole Woman's Health v. Jackson, (5th Cir., Jan. 17, 2022), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, certified to the Texas Supreme Court the question of whether under Texas law, any state officials have authority to take disciplinary action against doctors who violate Texas' Heartbeat Act.  The Act bans abortions if the physician has detected a fetal heartbeat-- usually at around 6 weeks of a pregnancy. The case is on remand from the U.S. Supreme Court (see prior posting), which has previously refused to enjoin enforcement of the Texas law while appeals are under way. (See prior posting.) The ability of Texas state officials to enforce the law in some way was crucial to the Supreme Court's decision that abortion providers could sue the state in a challenge to the law. (See prior posting.)  Judge Higginson dissented from the 5th Circuit's decision to certify the question to the Texas Supreme Court, saying in part:

By granting the defendants’ certification motion, we contravene the Supreme Court’s mandate, effectively telling the Court that its opinion was advisory.

Yahoo News reports on the 5th Circuit's decision.

Certiorari Denied In Virginia Ministerial Residence Tax Exemption Dispute

The U.S. Supreme Court today denied review in Trustees of New Life In Christ Church v. City of Fredericksburg, Virginia,  (certiorari  denied, 1/18/2022), over the dissenting opinion of Justice Gorsuch. In the case, a Virginia state court denied the state's "ministerial residence" tax exemption to a local Presbyterian church because the Youth Ministers living in the home at issue were not ordained clergy and were not listed by the church as one of its primary pastors. (See prior related posting.) The city claimed that this meant they did not qualify as "ministers" under the Presbyterian Church's Book of Church Order, despite the local church's insistence that they do qualify.  Justice Gorsuch, in his opinion dissenting from the denial of certiorari, said in part:

[T]he City continues to insist that a church’s religious rules are “subject to verification” by government officials....

I would grant the petition and summarily reverse. The First Amendment does not permit bureaucrats or judges to “subject” religious beliefs “to verification.”...

This case may be a small one, and one can hope that the error here is so obvious it is unlikely to be repeated anytime soon. But I would correct it....

Courthouse News Service reports on the case.

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.