5th Circuit Upholds Injunction Against Vaccine Mandate For Navy Seals With Religious Objections

In U.S. Navy Seals 1-26 v. Biden, (5th Cir., Feb. 28, 2022), the U.S. 5th Circuit Court of Appeals refused to grant the Navy a partial stay of an injunction issued by a Texas federal district court protecting 35 special warfare personnel who object on religious grounds to complying with the military's COVID vaccine mandate. The court said in part:

Defendants have not demonstrated “paramount interests” that justify vaccinating these 35 Plaintiffs against COVID-19 in violation of their religious beliefs. They insist that “given the small units and remote locations in which special-operations forces typically operate, military commanders have determined that unvaccinated service members are at significantly higher risk of becoming severely ill from COVID-19 and are therefore medically unqualified to deploy.” But “[r]outine [Naval Special Warfare] mission risks include everything from gunshot wounds, blast injuries, parachute accidents, dive injuries, aircraft emergencies, and vehicle rollovers to animal bites, swimming or diving in polluted waters, and breathing toxic chemical fumes.” There is no evidence that the Navy has evacuated anyone from such missions due to COVID-19 since it instituted the vaccine mandate, but Plaintiffs engage in life-threatening actions that may create risks of equal or greater magnitude than the virus.

Air Force Reservist With Religious Objection To COVID Vaccine Wins Injunction

In Poffenbarger v. Kendall, (SD OH, Feb. 28, 2022), an Ohio federal district court issued a preliminary injunction barring the Air Force from taking further adverse action against an Air Force reservist who refuses for religious reasons to comply with the military's COVID vaccine mandate.  The court concluded that plaintiff's rights under both RFRA and the free exercise clause were violated, saying in part:

Defendants have not shown that the Air Force’s action meets the least-restrictive-means test. The evidence indicates that the Air Force has granted virtually zero exemptions to the COVID-19 vaccine mandate on religious grounds.... At the same time, the Air Force has granted thousands of exemptions to the COVID-19 vaccine mandate on non-religious grounds.... This supports that less restrictive means of furthering the Air Force’s interests are being provided (even if only on a “temporary” basis) on non-religious grounds. And, the Defendants have not shown why such less restrictive means cannot likewise be provided to Poffenbarger.

Springfield News-Sun reports on the decision.

Cert. Denied In Ministerial Exception Case, With 4 Justices Expressing Concerns

The U.S. Supreme Court today denied review in Gordon College v. DeWeese-Boyd, (Docket No. 21-145, certiorari denied 2/28/2022) (Order List).  In the case, the Massachusetts Supreme Judicial Court held that the ministerial exception does not apply in a suit by an associate professor of social work at a private Christian liberal arts college who claims her promotion to full professor was denied because of her vocal opposition to the school's policies on LGBTQ individuals. (See prior posting.) Justice Alito, joined by Justices Thomas, Kavanaugh and Barrett, filed an opinion (full text) concurring in the denial of certiorari, but expressing concern with the lower court's decision, saying in part:

The Supreme Judicial Court of Massachusetts held that this “ministerial exception” did not apply to a professor at a religious college who “did not teach religion or religious texts,” but who was still expected to “integrate her Christian faith into her teaching and scholarship.” ...  Although the state court’s understanding of religious education is troubling, I concur in the denial of the petition for a writ of certiorari because the preliminary posture of the litigation would complicate our review. But in an appropriate future case, this Court may be required to resolve this important question of religious liberty....

What many faiths conceive of as “religious education” includes much more than instruction in explicitly religious doctrine or theology.... [M]any religious schools ask their teachers to “show students how to view the world through a faith-based lens,” even when teaching nominally secular subjects.

Recent Articles of Interest

From SSRN:

• Samuel L. Bray & Paul B. Miller, Christianity and Equity, (Oxford Handbook of Christianity and Law (Forthcoming)).
• Laura Portuondo, Effecting Free Exercise and Equal Protection, (72 Duke Law Journal (forthcoming 2023)).
• Gregory C. Sisk & Michael Heise, Cracks in the Wall: The Persistent Influence of Ideology in Establishment Clause Decisions, (Arizona State Law Journal (forthcoming 2022)).
• Frederick Mark Gedicks, Coase and Accommodation: A Reply, (Emory Law Journal, Vol. 71, Forthcoming 2022).
• Daniil Parenkov, On Guard of the Religious Diaspora: Catholic Lobby in the Field of US Migration Legislation, (December 28, 2021).
• Muhammad Munir, Maqāṣid Al-Sharī‘Ah or the Higher Objectives of Islamic Law: An Introduction, (December 27, 2021).

From SmartCILP:

• Symposium on Indirect Discrimination on the Basis of Religion, Vol. 34, Issue 2.

Texas AG and Governor Say Gender Transition Of Minors Can Constitute Child Abuse

On Feb. 18, Texas Attorney General Ken Paxton in Attorney General Opinion No. KP-401 concluded that a number of procedures used to treat gender dysphoria, i.e. assist transgender individuals in their gender transitions, can amount to child abuse under Texas law.  The 13-page Opinion states in part:

To the extent that these procedures and treatments could result in sterilization, they would deprive the child of the fundamental right to procreate, which supports a finding of child abuse under the Family Code....

Where, as a factual matter, one of these procedures or treatments cannot result in sterilization, a court would have to go through the process of evaluating, on a case-by-case basis, whether that procedure violates any of the provisions of the Family Code—and whether the procedure or treatment poses a similar threat or likelihood of substantial physical and emotional harm....

To the extent the specific procedures about which you ask may cause mental or emotional injury or physical injury within these provisions, they constitute abuse.

Further, the Legislature has explicitly defined “female genital mutilation” and made such act a state jail felony.... While the Legislature has not elsewhere defined the phrase “genital mutilation”, nor specifically for males of any age, the Legislature’s criminalization of a particular type of genital mutilation supports an argument that analogous procedures that include genital mutilation—potentially including gender reassignment surgeries—could constitute “abuse” under the Family Code’s broad and nonexhaustive examples of child abuse or neglect.

On Feb. 22, Texas Governor Greg Abbott sent a letter (full text) to the head of the Texas Department of Family and Protective Services, instructing them to promptly investigate cases covered by the Attorney General's Opinion.  the Governor said in part:

Texas law imposes reporting requirements upon all licensed professionals who have direct contact with children who may be subject to such abuse, including doctors, nurses, and teachers, and provides criminal penalties for failure to report such child abuse.... There are similar reporting requirements and criminal penalties for members of the general public....

Texas law also imposes a duty on DFPS to investigate the parents of a child who is subjected to these abusive gender-transitioning procedures, and on other state agencies to investigate licensed facilities where such procedures may occur.

Washington Post and Axios report on these developments.

Suit Challenges Latest Application Of Vermont Town Tuition Program

Suit was filed last week in a Vermont federal district court challenging the manner in which the state administers its Town Tuition Program that provides tuition reimbursement for students from towns that do not have their own public high schools. Reimbursement is available for attendance at private or out-of-district public high schools.  The complaint (full text) in Plaintiff E. W. v. French, (D VT, filed 2/24/2022), alleges that the state's current policy:

requires school districts to collect information on private religious schools' religious activity and to reduce or deny tuition benefits to account for religious schools' "religious worship" or "religious education."

The suit contends that this violates plaintiffs free exercise, free speech, Establishment Clause and due process rights, saying in part:

Defendants have no legitimate interest in enacting a greater separation of Church and State than is provided by the Establishment Clause of the First Amendment to the United States Constitution.

The Town Tuition Program has been the subject of extensive prior litigation. (See prior posting.) ADF issued a press release announcing the filing of the lawsuit.

9th Circuit: Qualified Immunity Requires Dismissal Of Inmate's Religious Meal Complaint

In Miller v. Acosta, (9th Cir., Feb. 25, 2022), a suit by an inmate, the U.S. 9th Circuit Court of Appeals held:

The district court properly determined that defendant Acosta was entitled to qualified immunity on Miller’s free exercise claim because Acosta’s conduct in refusing to provide Miller with his RMA [Religious Meat Alternative] meals when Miller did not show him a Religious Diet Card did not violate clearly established law.

Jackson Chosen By Biden For Supreme Court: Little Record On Religion Issues

President Biden has announced that he will nominate D.C. Circuit Judge Ketanji Brown Jackson to succeed Justice Breyer on the U.S. Supreme Court. She was a former clerk for Breyer.  Jackson has very little public record on church-state and free exercise issues.  I have been able to locate only one religion case (a Title VII case) in which she has written an opinion as either federal district or circuit court judge: Tyson v. Brennan, 306 F.Supp. 365) (D DC, Sept. 27, 2017).  It appears that the most extensive indication of her views on the religion clauses are found in her Responses to Questions for the Record in connection with her nomination to the D.C. Circuit (at pages 16, 18, 26, 27, 28, 35, 41, 49, 58, 63, 73, 74). There appears to be no reliable information available about Jackson's own religious affiliation.  Americans United for Separation of Church and State has issued a statement supporting her nomination.

Sexual Assault Victim Sues Tennessee Catholic Diocese

Suit was filed this week in a Tennessee state trial court against the Catholic Diocese of Knoxville and its bishop. A press release from plaintiff's attorneys summarizes the complaint (full text) in John Doe v. Catholic Diocese of Knoxville, (TN Cir. Ct., filed 2/22/2022):

A lawsuit filed in the Circuit Court for Knox County, Tennessee alleges that the Catholic Diocese of Knoxville and its bishop, Richard Stika, negligently failed to stop a diocesan seminarian from raping and sexual harassing a fellow employee in 2019, then spread false and defamatory rumors about the employee to protect itself and the seminarian, a friend of the bishop.

Suit In Connecticut State Court Challenges Elimination Of Religious Exemptions To School Vaccine Requirements

Suit was filed earlier this month in a Connecticut state trial court challenging the Connecticut's elimination of religious exemptions to the requirement that school children receive vaccination against several diseases. In January, a Connecticut federal district court dismissed a similar challenge (We The Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (D CT, Jan. 11, 2022).  The new state court complaint (full text) in We The Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (CT Super., Feb. 8, 2022), contends that requiring students who have religious objections to receive vaccines developed with fetal cells, or containing porcine gelatin, violates various provisions of the Connecticut state constitution and of state law protecting free exercise of religion, as well as equal protection, bodily self-determination, child-rearing, and public education rights.  CT Insider reports on the lawsuit.

Settlement Reached In Dispute Over VA Hospital's Display Of Bible

AP reports that the parties have reached an agreement leading to a New Hampshire federal district court's dismissal of a suit against the Manchester VA Medical Center.  The suit, filed in 2019, challenged a lobby "missing man" display that includes a Bible. (See prior posting.) Under the settlement agreement, the Military Religious Freedom Foundation will apply for permission to set up a second table that will feature an American flag and a published, generic Book of Faith, along with a granite stone engraved with "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Preacher Can Move Ahead With Selective Enforcement Challenge To U.S. Capitol Demonstration Limits

In Mahoney v. United States Capitol Police Board, (D DC, Feb. 22, 2022), a clergyman challenged traffic regulations that barred demonstrations by 20 or more people at various locations near the U.S. Capitol. Plaintiff claimed he felt "called by God" to hold a prayer vigil near the Capitol to mark the 20th anniversary of the 9-11 attacks. The court rejected plaintiff's facial free speech challenge to the regulation. However it permitted plaintiff to move ahead with his selective enforcement and free-association claims, saying in part:

Plaintiff has therefore alleged that the Board declined to enforce the Traffic Regulations against several large demonstrations that did not involve religious speech, while it enforced them against him because of the religious content of his speech. It is thus at least plausible that Defendants’ decision was based on the content of Mahoney’s speech, even if that is not the only plausible explanation.

The court rejected plaintiff's Free Exercise and RFRA challenges. It observed: "nowhere does he allege that having a large group present was essential to carrying out his sincerely held religious belief."

Putin's Grievances Include Split In Ukraine's Orthodox Churches

As the world's attention is focused on Russia's claims on Ukraine, there has been less reporting on the tensions between Russian and Ukrainian branches of the Orthodox Church.  This AP background article by Prof. J. Eugene Clay points out:

Two different Orthodox churches claim to be the one true Ukrainian Orthodox Church for the Ukrainian people... The older and larger church is the Ukrainian Orthodox Church – Moscow Patriarchate.... A branch of the Russian Orthodox Church, it is under the spiritual authority of Patriarch Kirill of Moscow.....

By contrast, the second, newer church, the Orthodox Church of Ukraine, celebrates its independence from Moscow.... In January 2019, [Constantinople] Patriarch Bartholomew formally recognized the Orthodox Church of Ukraine as a separate, independent and equal member of the worldwide communion of Orthodox churches.

Vladimir Putin's widely reported Feb. 21 speech on the Ukraine (full text) included Russian grievances as to this religious split. Putin said in part:

Kiev continues to prepare the destruction of the Ukrainian Orthodox Church of the Moscow Patriarchate. This is not an emotional judgement; proof of this can be found in concrete decisions and documents. The Ukrainian authorities have cynically turned the tragedy of the schism into an instrument of state policy. The current authorities do not react to the Ukrainian people’s appeals to abolish the laws that are infringing on believers’ rights. Moreover, new draft laws directed against the clergy and millions of parishioners of the Ukrainian Orthodox Church of the Moscow Patriarchate have been registered in the Verkhovna Rada.

Christian Doctors Challenge California Assisted Suicide Provisions

An organization of Christian healthcare professionals and one of its members filed suit yesterday in a California federal district court challenging the current version of California's End of Life Options Act (EOLA) on free exercise, free speech, due process and equal protection grounds. The complaint (full text) in Christian Medical & Dental Associations v. Bonta, (CDCA, filed 2/22/2022), alleges that changes made to EOLA last year by SB 380 remove previous protections and now require doctors to participate in assisted suicide in violation of their religious beliefs. It contends that SB 380 requires objecting physicians to:

a. Document the date of a patient’s initial assisted-suicide request, which counts as the first of two required oral requests;
b. Transfer the records ... to a subsequent physician who may complete the assisted suicide;
c. Diagnose whether a patient has a terminal disease, inform the patient of the medical prognosis, and determine whether a patient has the capacity to make decisions, all of which are statutorily required steps toward assisted suicide;
d. Provide information to a patient about the End of Life Options Act;
e. Provide a requesting patient with a referral to another provider who may complete the assisted suicide.

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

Certiorari Denied In Challenge To Maine COVID Vaccine Mandate

Yesterday the U.S. Supreme Court denied review in Does 1-3 v. Mills, (Docket No. 21-717, certiorari denied, 2/22/2022) (Order List). At issue in the case is whether Maine's COVID vaccine mandate for healthcare workers, without the availability of religious exemptions, violates the Free Exercise clause. (See prior posting.) LifeNews reports on the denial of certiorarai.

Supreme Court Grants Review In Case Of Website Designer Who Refuses Same-Sex Wedding Customers

The U.S. Supreme Court today granted review in 303 Creative LLC v. Elenis, (certiorari granted, 2/22/2022) (order List). The grant of certiorari was limited to the question of "Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment."  In the case, the U.S. 10th Circuit Court of Appeals upheld the application of Colorado's Anti-Discrimination Act to a wedding website design company whose owner for religious reasons refuses to create websites that celebrate same-sex marriages. It said that the 1st Amendment allows the state to ban speech that promotes unlawful conduct, including unlawful discrimination. (See prior posting.) Here is the SCOTUSblog case page with links to briefs in the case.

Colombia's Constitutional Court Legalizes Abortion Until 24 Weeks Of Pregnancy

Reuters reports that yesterday Colombia's Constitutional Court voted 5-4 to decriminalize abortion until 24 weeks of gestation. This adds to a 2006 ruling that legalized abortion without time limits in cases of rape, fatal fetal deformity and health of the woman. The announcement came through this Spanish language press release from the Court.

First Muslim Appointed To Permanent Seat On Israel's Supreme Court

According to the Jerusalem Post, in Israel yesterday the Judicial Selection Committee appointed four new justices to the Supreme Court, one of whom is the first Muslim to serve as a permanent Justice.  The new Justice,  Khaled Kabub, fills the "Arab-Israeli seat" on the court which previously has been held by Christian Arabs (except for a temporary 9-month appointment in 1999 of Abdel Rahman Zoabi). Since 2003, Kabub has served as a judge on the Tel Aviv District Court where he has handled primarily cases involving economic crimes.

Supreme Court Denies Injunction As School System Postpones Vaccine Mandate

In Doe v. San Diego School District, (Sup. Ct., Feb. 18, 2022), the U.S. Supreme Court issued an Order (full text) refusing to enjoin a school district's COVID vaccine mandate that does not provide for religious exemptions.  The Court said in part:

Because respondents have delayed implementation of the challenged policy, and because they have not settled on the form any policy will now take, emergency relief is not warranted at this time. Applicants’ alternative request for a writ of certiorari before judgment and a stay pending resolution is denied for the same reason. The Court’s denial is without prejudice to applicants seeking a new injunction if circumstances warrant.

As a press release from the Thomas More Society relates, the suit was brought by a student athlete whose religious beliefs prevent her from taking the current vaccines because of the use of fetal cells in their development.

Satirical Videos Criticizing Jehovah's Witnesses Did Not Violate Copyrights

In In re: DMCA Section 512(h) Subpoena to YouTube (Google, Inc.), (SD NY, Jan. 18, 2022),a New York federal district court quashed a subpoena request under the Digital Millennium Copyright Act seeking the identity of an individual who allegedly infringed copyrights of the Watchtower Bible and Tract Society, the organization that publishes Jehovah's Witness literature. At issue were satirical YouTube videos posted by a lapsed Jehovah's Witness, described by the court in part as follows:

Under the pseudonym of “Kevin McFree,” Movant publishes videos on YouTube featuring stop-frame Lego animations set in a fictitious village called “Dubtown” that satirize and criticize the practices of Jehovah’s Witnesses.

The court concluded that because the YouTube postings amounted to fair use, there was no copyright infringement. The court said in part:

Movant’s other videos in his YouTube channel, like the Dubtown Video, all involve stop-frame Lego animations with titles that are derisive about the practices of Jehovah’s Witnesses.... It is well-established that “[a]mong the best recognized justifications for copying from another’s work is to provide comment on it or criticism of it.”

TorrentFreak reports at greater length on the case.

Recent Articles of Interest

From SSRN:

• Meg Mary Margaret Penrose, The Public Accommodations Dilemma - Whose Right Prevails, (Akron ConLawNOW, Forthcoming).
• Ryan Kowalski, Usury and Interest Laws: Their Roots in Christianity, (December 15, 2021).
• Sherif Girgis, Fragility, Not Superiority? Assessing the Fairness of Special Religious Protections, (February 9, 2022).
• Louis W. Hensler, New York Times v. Sullivan Transformed American Defamation Law From Thumper's Rule to Incented Obloquy, (February 10, 2022).
• Alex Zhang, Antidiscrimination and Tax Exemption, (Cornell Law Review, Vol. 107 (2022)).
• Katharine Young, Human Rights Originalism, (Georgetown Law Journal, Vol. 110, No. 5, 2022).
• David S. Cohen, Greer Donley & Rachel Rebouche, The New Abortion Battleground, (February 11, 2022).
• Jessica Clarke, Sex Assigned at Birth, (Columbia Law Review (forthcoming)).
• Meg Mary Margaret Penrose, Equal Justice Under Law: Navigating the Delicate Balance Between Religious Liberty and Marriage Equality, (Washburn Law Journal, Vol. 61, No. 1, 2021).

From SmartCILP:

• Agnes Beatrice Gambill, Trademark Holy Wars: The 2nd Circuit's Attempt to Genericide God, [Abstract], 48 AIPLA Quarterly Journal 225-280 (2020).
• Jeremy A. Rovinsky, A Stunning Decision: How the E.C.J. Butchered Both Religious Freedom and Animal Welfare, 29 Tulane Journal of International & Comparative Law 273-284 (2021).
• Daniel Griffith, Healing the Harm—The Effectiveness of Restorative Justice in Response to Clergy Abuse, 17 University of St. Thomas Law Journal 18-42 (2020).
• David A. Shaneyfelt, Confessions of a Catholic Litigator, 17 University of St. Thomas Law Journal 111-132 (2020).
• Panel. The Role of Restorative Justice in Addressing Clergy Sexual Abuse and Helping Its Survivors, 17 University of St. Thomas Law Journal 133-155 (2020).

Settlement Assures Universal Life Ministers Can Perform Weddings In Nevada

Clark County, Nevada's district attorney announced last week that the county has settled ongoing litigation with the Universal Life Church, assuring that ULC ministers will be able to officiate at weddings in the county.  A statement from Universal Life Church Ministries also welcomes the settlement and indicates that it includes payment for a portion of ULCM's legal expenses. [Thanks to Dusty Hoesly for the lead.]

Two Servicemembers Get Preliminary Injunction Preserving Their Religious Objections To COVID Vaccine

In Navy Seal 1 v. Austin, (MD FL, Feb. 18, 2022), a Florida federal district court granted a preliminary injunction to two service members who objected on religious grounds to complying with the military's COVID vaccine mandate.  The court said in part:

Under the command of RFRA, the military bears the burden of showing both the existence of a compelling governmental interest and the absence of a less restrictive means of reasonably protecting that interest. In the instance of Navy Commander and Lieutenant Colonel 2, the Navy and the Marine Corps have failed manifestly to offer the statutorily required demonstration that no less restrictive means is available, and each of the two service members is entitled to preliminary injunctive relief that (1) permits them, pending a final determination on a complete record, to continue to serve without the vaccination....

[T]he Navy, the Marine Corps, and the Air Force submit ... the twenty-five most recent letters denying an appeal and submit every letter granting a religious exemption. The submission reveals a process of “rubber stamp” adjudication by form letter, a process incompatible with RFRA’s command to assess each request “to the person.”

On February 2, the same court had issued a temporary restraining order in the case. (See prior posting.) Liberty Counsel issued a press release announcing the most recent decision.

UPDATE: In an April 1, 2022, decision (full text), the district court modified the preliminary injunction to allow the Marine Corps to consider vaccination status in making deployment, assignment, and other operational decisions.

UPDATE: On April 21, the court issued an opinion (full text) supporting its April 1 Order.

Suit Challenges School Assembly Featuring Evangelical Minister

Suit was filed yesterday in a West Virginia federal district court by students at Huntington High School and their parents alleging that a school assembly featuring Nik Walker, a Christian evangelical minister, violated the Establishment Clause.  The complaint (full text) in Mays v. Cabell County Board of Education, (SD WV, filed 2/17/2022), alleges in part:

Most recently, schools within Cabell County sponsored religious revivals during the school day. At the behest of adult evangelists, Huntington High School held an assembly for students that sought to convert students to evangelical Christianity. Some students were forced to attend. Regardless of whether attendance is mandatory or voluntary, the Defendants violate the First Amendment by permitting, coordinating, and encouraging students to attend an adult-led worship service and revival at their school during the school day.

Freedom From Religion Foundation, in a press release announcing the lawsuit, reports that on Feb. 9, more than 100 students staged a walkout in protest of the assembly.

 

5th Circuit: United Airlines Employees Irreparably Injured By Religious Coercion Over COVID Vaccine

In Sambrano v. United Airlines, (5th Cir., Feb. 17, 2022), the U.S. 5th Circuit Court of Appeals, in a 2-1 per curiam decision, reversed a Texas federal district court's decision that no "irreparable injury" had been suffered by United Airlines employees who were placed on unpaid leave after they refused for religious reasons to comply with the company's COVID vaccine mandate.  The district court held that the employees were not entitled to a preliminary injunction because their loss of income could be remedied by an award of damages in an action under Title VII.  The 5th Circuit majority disagreed, saying in part:

Critically, we do not decide whether United or any other entity may impose a vaccine mandate. Nor do we decide whether plaintiffs are ultimately entitled to a preliminary injunction. The district court denied such an injunction on one narrow ground; we reverse on that one narrow ground and remand for further consideration....

Properly understood, the plaintiffs are alleging two distinct harms— one of which is reparable ..., and the other of which is irreparable.... The first is United’s decision to place them on indefinite unpaid leave; that harm, and any harm that flows from it, can be remedied through backpay, reinstatement, or otherwise. The second form of harm flows from United’s decision to coerce the plaintiffs into violating their religious convictions; that harm and that harm alone is irreparable and supports a preliminary injunction.

Judge Smith wrote a stinging 56-page dissent, saying in part:

In its alacrity to play CEO of a multinational corporation, the majority shatters every dish in the china shop. It rewrites Title VII to create a new cause of action. It twists the record to fit that invention. It defies our precedent and the commands of the Supreme Court. But this majority is no senseless bull. Knowing exactly what it has wrought, the majority declares that its unsigned writing will apply to these parties only. By stripping its judgment of precedential effect, the majority all but admits that its screed could not survive the scrutiny of the en banc court....

For every conceivable reason that the plaintiffs could lose this appeal, they should. The statute does not allow the relief they seek. Nor do our precedents; if they did, the Supreme Court has overruled them. If they have not been overruled, fifty years of precedent and centuries of Anglo-American remedies law show that preliminary relief may not issue. If it could issue, it shouldn’t, because the only plaintiffs with standing claim no harm from the “impossible choice” between full postjudgment relief and eternal damnation.

Chicago Tribune reports on the decision.

Sex Offender Registration Law Does Not Violate Free Exercise Rights

 In Doe v. Rausch, (MD TN, Feb. 16, 2022), a Tennessee federal district court dismissed a plaintiff's claim that subjecting him to the Tennessee Sex Offender Registration Act violates his free exercise rights. The Act, among other things, prohibits registered offenders from being on the grounds of a private or parochial school. Plaintiff contended that the Act "has the effect of prohibiting his presence in a building of worship because most Jewish Synagogues and Community Centers in Tennessee have schools on their grounds."  The court rejected this contention, accepting defendant's argument that the free exercise clause does not relieve plaintiff from the obligation to comply with a neutral law of general applicability.

NYC Teachers, Seeking Religious Exemptions, Resubmit Injunction Request To Justice Gorsuch

As previously reported, last week in Keil v. City of New York, Justice Sotomayor Acting on an Emergency Application to the U.S. Supreme Court filed by a group of New York City teachers, refused to enjoin the dismissal of teachers with religious objections who refused to comply with the City's COVID vaccine mandate. Invoking Supreme Court Rule 22.4, the teachers on Feb. 14 requested that their petition be resubmitted, this time to Justice Gorsuch. (Full text  of request letter). Justice Gorsuch has referred the request to the full Court for their March 4 conference. The Second Circuit which refused to grant an injunction pending appeal has already scheduled a hearing on the merits of the teachers' claims for Feb. 24.  CNN reports on these developments. [Thanks to Scott Mange for the lead.]

Air Force Officer Gets Injunction Against Required COVID Vaccine

In Air Force Officer v. Austin, (MD GA, Feb. 15, 2022), a Georgia federal district court, invoking RFRA and the 1st Amendment, granted a preliminary injunction to an Air Force officer who sought a religious exemption from the Air Force's COVID vaccine mandate.  The court said in part:

[T]he Court agrees with Plaintiff’s argument that Defendants haven’t “shown that vaccination is actually necessary by comparison to alternative measures[]” since “the curtailment of free [exercise] must be actually necessary to the solution.”...

Moreover, one must keep in mind that the Air Force has rejected 99.76% of all religious accommodation requests.... With such a marked record disfavoring religious accommodation requests, the Court easily finds that the Air Force’s process to protect religious rights is both illusory and insincere. In short, it’s just “theater.”...

Defendants’ COVID-19 vaccination requirement allows service members to refuse vaccination for secular reasons while disallowing refusal based on religious reasons.... No matter whether one service member is unvaccinated for a medical reason and another unvaccinated for a religious reason, one thing remains the same for both of these service members—they’re both unvaccinated. In other words, both of these service members pose a “similar hazard” to Defendants’ compelling interest in “[s]temming the spread of COVID-19” within the military....

[W]hat real interest can our military leaders have in furthering a requirement that violates the very document they swore to support and defend? The Court is unquestionably confident that the Air Force will remain healthy enough to carry out its critical national defense mission even if Plaintiff remains unvaccinated and is not forced to retire.

Thomas More Society issued a press release announcing the decision. 

White House Celebrates One Year Of Faith-Based Partnerships

The White House yesterday issued Fact Sheet: Biden-⁠Harris Administration Celebrates First Anniversary of the Reestablishment of the White House Office of Faith-Based and Neighborhood Partnerships, which reads in part:

Our country has made great progress thanks to neighborhood partnerships and compassionate leaders of all faiths and beliefs, whether it was hosting vaccination clinics, preventing evictions, helping to ensure that children get back to school and workers get jobs, or countless other acts of service. The Biden-Harris Administration is also working tirelessly to advance policies promoting religious equity, diversity, inclusion, and accessibility and protecting the fundamental right to practice faith without fear, especially in light of the troubling rise of antisemitic, xenophobic, and bigoted attacks against people of faith—targeting synagogues, predominantly Black churches, and Muslim and Sikh communities, among other communities. In addition, the Administration has prioritized the cultivation of a spirit of welcome for people of all religious, political, and ideological stripes; a commitment to treating everyone with equal respect and dignity; and the hard but essential work of building bridges across differences in background and beliefs.

The Fact Sheet goes on to list 40 achievements during the past year that advance these partnerships and policies.

Diocesan Religious Education Director Sentenced To 20 Years For Sex Abuse of Minor Girl

The Tennessean reports that under a plea deal, the former director of religious education at a Murfreesboro (TN) Catholic parish was sentenced to twenty years in prison for sexual abuse of a girl, beginning when she was 13 years old.  Defendant, Michael D. Lewis, pleaded guilty to four counts of statutory rape for abuse that took place between 2014 and 2016.

Priest's Suit For Reinstatement Dismissed

In Iwuchukwu v. Archdiocese for the Military Services,(D DC, Feb. 11, 2022), the D.C. federal district court dismissed a suit by a former Catholic priest who worked at Georgetown University Hospital and the Department of Veterans Affairs.  After a woman accused the priest of sexually abusing her, the Archdiocese revoked his faculties and endorsement so he could not work as a Catholic pastor.  Legal authorities did not pursue charges against the priest because the statute of limitations had run; the priest submitted polygraph results supporting his denial of wrongdoing.  However the Archdiocese refused to reinstate him.  He sued claiming violation of the 14th Amendment's due process clause and illegal retaliation against him for filing an employment discrimination claim. The court held that the suit should be dismissed under the ecclesiastical abstention doctrine because this:

plainly concerns the composition of the clergy and a matter of church discipline.... Moreover, the conferral of faculties and an endorsement on a priest is a purely religious decision that cannot be reviewed by courts.

The court concluded that his claim for retaliation in violation of the D.C. employment discrimination law should be dismissed because of the statutory exemption for religious organizations.

Recent Articles of Interest

From SSRN:

• Flora Renz & Davina Cooper, Reimagining Gender through Equality Law: What Legal Thoughtways do Religion and Disability Offer? (January 20, 2022, Feminist Legal Studies).
• Patrick Quirk, When My Opt out Is Your Trigger: Oderberg’s Argument with the Religious Freedom Sincerity Test, (11 Faulkner. L. Rev. 161 (2020)).
• Bradley J. Lingo, Relieving The Crisis in Religious Liberty: Book Review of Religious Liberty in Crisis, Exercising Your Faith in an Age of Uncertainty, (Regent University Law Review, Forthcoming).
• Nathan B. Oman, Regulating Religious Performance on the Commercial Stage, (in Democracy, Religion, and Commerce: Private Markets and the Public Regulation of Religion (Kathleen Flake & Nathan B. Oman eds. Forthcoming)).
• Marc Greendorfer, The True History and Legal Meaning of Colonialism in the Holy Land: The 2042 B.C. Project, (February 7, 2022).
• Robert Kahn, Face Veil Bans and “Living Together” – What’s Privacy Got to Do with It, (6 Public Governance, Administration and Finances Law Review 7 (2021).
• Sherif Girgis, Misreading and Transforming Casey for Dobbs, (Georgetown Journal of Law & Public Policy, Vol. 20, 2022).
• David Gans, Reproductive Originalism: Why the Fourteenth Amendment’s Original Meaning Protects the Right to Abortion, (SMU Law Review Forum (2022 Forthcoming)).
• Howard Wasserman & Charles W. (Rocky) Rhodes, Solving the Procedural Puzzles of the Texas Heartbeat Act and its Imitators: New York Times v. Sullivan as Historical Analogue, (Florida International University Legal Studies Research Paper No. 22-03 (2022).

From SmartCILP and elsewhere:

• Thomas E. Simmons, Christian Purpose Trusts, 53 Creighton Law Review 643-658 (2020).
• Lynn Kaye, Lay People's Advocacy and Resistance in Talmudic Adjudication Narratives, 32 Yale Journal of Law & Humanities 77-118 (2021).
• Aaron J. Walayat, Adams and Jefferson: American Religion and the Ancient Constitution, 11 Faulkner Law Review 215 (2021).

Relocation Of Native American Graves Can Proceed

In Asher v. Clay County Board of Education, (ED KY, Feb. 11, 2022), a Kentucky federal district court refused to enjoin a school district from relocating graves from cemetery land which it had purchased. The school board followed procedures in Kentucky law to obtain permission for the relocation.  Plaintiffs claim the the cemetery contains graves of members of the White Top Band of Native Indians.  The court held that the Native American Graves Protection and Repatriation Act does not apply because the cemetery is not on federal or tribal lands. The court rejected plaintiffs' 1st Amendment free exercise claim, saying in part:

Plaintiffs argue that the Defendants’ actions would prevent religious fulfilment.... But like the respondents in Lyng [v. Nw. Indian Cemetery Protective Ass’n], Plaintiffs are not being coerced into violating their religious beliefs, nor are they being penalized because of their religious or traditional beliefs or practices. Instead, they seek to overturn the lawful process undertaken by the BOE to move the graves in the Hoskins Cemetery so that Plaintiffs can continue to practice their traditional and religious beliefs.... This is not “free exercise” of religion protected by the First Amendment. Rather, it amounts to Plaintiffs seeking to exact a benefit from the local government and to “divest the [BOE] of its right to use what is, after all, its land.”

Court Says South Carolina's Ban On Aid To Private And Religious Schools Was Not Discriminatory

In Bishop of Charleston v. Adams, (D SC, Feb. 10, 2022), a South Carolina federal district court rejected federal Constitutional free exercise and equal protection challenges to Art. XI, Sec. 4 of the South Carolina Constitution which bars the use of public funds to directly benefit religious or other private educational institutions. The court held that plaintiffs failed to prove that the provision was motivated by either religious or racial discriminatory intent, saying in part:

[A]ccording to Plaintiffs, the 1895 provision was a so-called “Blaine Amendment” motivated by anti-Catholic animus....

Plaintiffs’ own expert, conceded that the national Blaine Amendment movement was not a significant factor in South Carolina.... The similarity in language between South Carolina’s 1895 provision and Blaine Amendments in other States is not enough to make up for Plaintiffs’ failure to demonstrate the existence of pervasive anti-Catholic animus in South Carolina, much less Plaintiffs’ failure to establish any corresponding discriminatory intent.....

Even assuming the 1895 provision was connected in some way to racial or religious prejudice, Plaintiffs’ claim still cannot succeed. The original 1895 provision no longer governs. Instead, the relevant provision was incorporated into the South Carolina Constitution by a vote of the people in 1972....

Plaintiffs mainly argue that racial and religious prejudice from the 1895 provision tainted Section 4, while also arguing that “[t]he ‘historical backdrop’ of the 1972 Amendment really started in 1619, when the first slaves came to America’s shores.”...

But Plaintiffs’ reliance on these other racist or anti-religious views or policies is unavailing because Plaintiffs do not connect them with Section 4’s adoption.

Supreme Court Refuses To Enjoin NYC Vaccine Mandate For Teachers

Acting on an Emergency Application to the U.S. Supreme Court filed by a group of New York City teachers, Justice Sotomayor, in Keil v. City of New York, (Sup.Ct., Feb. 11, 2022) refused to enjoin the dismissal of teachers with religious objections who refused to comply with the City's COVID vaccine mandate. The Second Circuit had held that the process for determining whether  a teacher or administrator is entitled to a religious exemption is unconstitutional.  However, it allowed the school system two weeks to reconsider the applications by the named plaintiffs for religious exemptions. (See prior posting).  After reconsideration, the City granted only one of the 14 plaintiffs an exemption. New York Times reports on the decision.

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.