Idaho Governor Signs A Heartbeat Abortion Ban

Yesterday, Idaho Governor Brad Little signed Senate Bill 1309, the Fetal Heartbeat Preborn Child Protection Act (full text). While news media report that the law is modeled on Texas SB8, there are differences between the two laws. Like the Texas law, SB 1309 prohibits abortions after a fetal heartbeat can be detected-- generally 6 weeks, and provides for private enforcement. However the Idaho law has an exception for rape or incest (if reported to law enforcement authorities) or for medical emergencies. The Texas law only excepts medical emergency. Under the Idaho law, a private enforcement action may be brought only by the father, grandparent, sibling, aunt or uncle of the pre-born child. They may sue for actual damages plus statutory damages of $20,000. Under the Texas law, anyone (other than a state or local official) may sue. Under the Idaho law, criminal penalties and license suspensions for health care professionals who violate the law are triggered "thirty (30) days following the issuance of the judgment in any United States appellate court case in which the appellate court upholds a restriction or ban on abortion for a pre-born child because a detectable heartbeat is present on the grounds that such restriction or ban does not violate the United States constitution."

Mandatory LGBTQ Anti-Discrimination Training Did Not Violate Title VII

In Zdunski v. Erie 2-Chautauqua-Cattaraugus BOCES, (WD NY, Feb. 16, 2022), a New York federal district court dismissed Title VII and state law religious discrimination claims brought by Raymond Zdunski, an account clerk at the Board of Cooperative Educational Services.  BOCES required all of its employees to attend LGBTQ anti-discrimination training after one of its employees requested accommodation for gender transition.  Zdunski refused, contending that the training was aimed at changing his religious beliefs on gender and sexuality and that attending would violate his religious beliefs. He was fired for insubordination. The court said in part:

Mr. Zdunski has not presented any evidence that the trainings were directed toward him or other Christian employees in a discriminatory manner....

Here, Mr. Zdunski's proposed accommodation—that he be excused from the mandatory LGBTQ anti-discrimination training—amounts to more than a de minimis cost to his employer's business operations. BOCES is bound by New York State law to provide annual anti-discrimination trainings for all employees and to maintain "an environment free of discrimination and harassment." See N.Y. Educ. Law Tit. 1 Art. 2 §§ 10, 13. Allowing Mr. Zdunski's requested accommodation to forego anti-discrimination trainings would have put his employer in the position of violating the training requirements set forth in DASA. An accommodation that would require an employer to run afoul of state law constitutes a substantial hardship and would be more than a de minimis cost to the employer.

No RLUIPA Or Free Exercise Violation In Denying Sewer Service To Proposed Church Building

In Canaan Christian Church v. Montgomery County Maryland, (4th Cir., March 22, 2022), the U.S. 4th Circuit Court of Appeals held that Montgomery County did not violate a church's rights under RLUIPA or the 1st Amendment when it refused to extend public sewer lines to properties on which the church proposed to construct a new larger building for its congregation. The land use and water plans covering the properties provided that no public sewer service would be permitted (except for public health requirements). The church's purchase contracts for the properties were contingent on the county's approval of sewer service. The court said in part:

Because Appellants were well aware of the difficulties in development of the Property when they entered into the contract to purchase the Property, they could not have a reasonable expectation of religious land use. Further, the land use restrictions are rationally related to the government’s interest in protecting the region’s watershed.

A concurring opinion by Judge Richardson took issue with some of the analysis in the majority opinion.

U.S. Imposes New Sanctions On China For Repression Of Ethnic And Religious Minorities

On Monday, Secretary of State Anthony Blinken announced (full text of press statement) that the U.S. is imposing new sanctions on Chinese officials for human rights violations. He said in part:

The Department of State is taking action against PRC officials for their involvement in repressive acts against members of ethnic and religious minority groups and religious and spiritual practitioners inside and outside of China’s borders, including within the United States....

Today’s action imposes visa restrictions on PRC officials who are believed to be responsible for, or complicit in, policies or actions aimed at repressing religious and spiritual practitioners, members of ethnic minority groups, dissidents, human rights defenders, journalists, labor organizers, civil society organizers, and peaceful protestors in China and beyond....

We call on the PRC government to end its ongoing genocide and crimes against humanity in Xinjiang, repressive policies in Tibet, crackdown on fundamental freedoms in Hong Kong, and human rights violations and abuses, including violations of religious freedom, elsewhere in the country.

CBS News reports on the State Department's action.

Indiana and Utah Governors Veto Bans Of Transgender Females On Sports Teams

Indiana Governor Eric Holcomb on Monday vetoed HEA 1041 (full text) which bans transgender females from competing on female interscholastic athletic teams.  In his veto letter (full text), the Governor said in part:

[T]he presumption of the policy laid out in HEA 1041 is that there is an existing problem in K-12 sports in Indiana that requires further state government intervention. It implies that the goals of consistency and fairness in competitive female sports are not currently being met. After thorough review, I find no evidence to support either claim even if I support the overall goal.

AP reports on the governor's action.

Meanwhile, yesterday Utah Governor Spencer Cox vetoed H.B.11 (full text) which similarly prohibited transgender females from competing on female interscholastic athletic teams. The bill provided that if this ban was struck down by the courts, a School Activity Eligibility Commission would be created to determine the eligibility for gender-specific teams of students who are undergoing gender transition. The Commission would establish a baseline range of physical characteristics for different sports and ages to use in making its determinations.

Governor Cox issued a lengthy and detailed veto letter (full text), which reads in part:

Because the bill was substantially changed in the final hours of the legislative session with no public input and in a way that will likely bankrupt the Utah High School Athletic Association and result in millions of dollars in legal fees for local school districts with no state protection, and for several other reasons below, I have chosen to veto this bill....

Four kids and only one of them playing girls sports. That’s what all of this is about. Four kids who aren’t dominating or winning trophies or taking scholarships. Four kids who are just trying to find some friends and feel like they are a part of something. Four kids trying to get through each day. Rarely has so much fear and anger been directed at so few. I don’t understand what they are going through or why they feel the way they do. But I want them to live. And all the research shows that even a little acceptance and connection can reduce suicidality significantly. For that reason, as much as any other, I have taken this action in the hope that we can continue to work together and find a better way. If a veto override occurs, I hope we can work to find ways to show these four kids that we love them and they have a place in our state.

AP reports on the governor's action, and reports that legislative leaders plan to reconvene on Friday to consider a veto override.  The Governor has issued a Proclamation calling a special session of the legislature for Friday to consider an indemnification provision for the Utah High School Athletic Association and local school districts that will be sued.

UPDATE: As reported by AP, on March 25, the Utah legislature overrode the governor's veto.

UPDATE: As reported by WYFI, on May 24 the Indiana legislature overrode the governor's veto. The ACLU has filed suit challenging the law.

U.S. Labels Burmese Military's Treatment Of Rohingya As Genocide

In a speech (full text) yesterday at the United States Holocaust Memorial Museum, Secretary of State Anthony Blinken announced that the United States has concluded that Burma's actions against the Rohingya constitute genocide.  He said in part:

One of my responsibilities as Secretary is determining, on behalf of the United States, whether atrocities have been committed.  It’s an immense responsibility that I take very seriously, particularly given my family’s history.

Beyond the Holocaust, the United States has concluded that genocide was committed seven times.  Today marks the eighth, as I have determined that members of the Burmese military committed genocide and crimes against humanity against Rohingya.

In Settlement, Michigan Allows Catholic Charities To Refuse Child Placements With Same-Sex Or Unmarried Couples

In Catholic Charities West Michigan v. Michigan Department of Health and Human Services, (ED MI, March 21, 2022), a Michigan federal district court approved a settlement agreement under which the state of Michigan will allow Catholic Charities, operating under contracts with the state, to refuse to place children for adoption or foster care with same-sex or unmarried couples and refuse to conduct home evaluations for same-sex or unmarried couples. The parties' Agreement says in part:

[A]s a result of the Supreme Court’s decision in Fulton v. City of Philadelphia, 593 U.S. ___ (2021), the Parties agree that Plaintiff would likely prevail on Count V (Free Exercise) of the Complaint.

The state also agreed to pay plaintiffs' attorneys' fees in the amount of $250,000. ADF issued a press release announcing the settlement.

Mahr Did Not Set Upper Limit Of Amounts Awardable To Wife In Divorce

In Parbeen v. Bari, (FL App., March 16, 2022), a Florida state appellate court held that a traditional Islamic prenuptial agreement-- a Mahr-- in setting an amount payable upon divorce did not eliminate the wife's right to temporary support, alimony, equitable distribution of property and attorneys' fees under Florida law. While the Mahr's secular terms are enforceable under Florida contract law, the Mahr did not set the maximum amount payable to the wife. [Thanks to Volokh Conspiracy via Steven H. Sholk for the lead.]

DC Minor Consent Law Violates Parents' Free Exercise Rights

In Booth v. Bowser, (D DC, March 18, 2022), a D.C. federal district court granted a preliminary injunction on free exercise grounds against the Minor Consent for Vaccinations Act Amendment of 2020 which allows minors who are at least 11 years old to consent to vaccinations without parental approval. The court concluded that the Act burdens religious practice, explaining:

If a minor’s parent has filed a religious exemption for the child and the child elects to get a vaccine anyway, a healthcare provider must leave blank part 3 of the Certificate. Id. Part 3 is the child’s immunization record. This serves to obfuscate the child’s vaccination from his parents. But the MCA does not require providers to leave blank part 3 of the Certificate for students whose parents filed a medical exemption.

Washington Post reports on the decision.

Supreme Court GVR's Title VII Reasonable Accommodation Appeal

Yesterday in Hedican v. Walmart Stores East, (Docket No. 21-648, gvr'd 3/21/2022), (Order List), the U.S. Supreme Court granted certiorari, summarily vacated the judgment below and remanded the case to the Seventh Circuit for further consideration in light of Cameron v. EMW Women’s Surgical Center. In the Walmart case, the 7th Circuit held that accommodating the scheduling need of a Seventh Day Adventist would impose an undue burden on Walmart. After that decision, Edward Hedican, on whose behalf the EEOC had sued, sought to intervene in order to file a petition for certiorari. The Seventh Circuit held that the motion to intervene was untimely. Hedican's petition for certiorari said that it presents identical questions to Cameron.

Bidens Extend Greetings For Nowruz

Yesterday, President Biden and Jill Biden issued a statement extending New Years greetings for Nowruz. The Statement (full text) reads in part:

Jill and I extend our best wishes to all who are celebrating Nowruz in the United States and around the world today — including in Iran and across the Middle East, in Central and South Asia, in the Caucuses, and in Europe....

That spirit of new beginnings and the joy of Nowruz is reflected in our own Haft-Sin table at the White House, representing our hopes for the new year.

Certiorari Denied In Dispute Over Anti-Discrimination Exemption for Religious Employers

The U.S. Supreme Court today in Seattle's Union Gospel Mission v. Woods, (certiorari denied, March 21, 2022) denied review, but Justice Alito, joined by Justice Thomas, filed an opinion saying in part:

The Washington Supreme Court’s decision may warrant our review in the future, but threshold issues would make it difficult for us to review this case in this posture.

At issue was the Mission's refusal on religious grounds to hire a bisexual male who was in a same-sex relationship as a staff attorney for its legal clinic.  Justice Alito said in part:

Because of such federal statutory exemptions and their state analogs, we have yet to confront whether freedom for religious employers to hire their co-religionists is constitutionally required....

But in this case the confrontation may be inevitable, as it involves an employment dispute between a religious employer and an applicant who was not hired because he disagreed with that employer’s religious views. The Washington Supreme Court expressly declined to apply its state employment law exemption for religious entities to this dispute. Instead, it held that if that state exemption applied to employment decisions beyond those involving church ministers, such an exemption would violate the Washington State Constitution’s protection for other individual rights and could become a “license to discriminate.”

USCIRF Warns of Religious Oppression By Russians In Ukraine

Last week, the U.S. Commission on International Religious Freedom issued a press release warning that Russia will likely target religious communities across Ukraine with violence and oppression. The release reads in part:

The Russian government uses distortions of religious history to support its claim that Ukrainians have no independent ethno-religious identity or state tradition,” said USCIRF Commissioner James W. Carr. “In 2019, the Ecumenical Patriarch of Constantinople recognized an independent Orthodox Church of Ukraine, allowing many parishes previously under the jurisdiction of Moscow to sever those ties in a move that infuriated Russian nationalist sentiments. These parishes and their leadership are in jeopardy if Russian control expands.”...

“In the areas of Ukraine already occupied by Russia in 2014, we have seen the Russian government use baseless charges of religious extremism and terrorism to silence dissent, justify endless raids and mass arrests, and close religious institutions that do not conform to its narrow interpretation of ‘traditional’ religion,” said USCIRF Commissioner Khizr Khan. “Indigenous Crimean Tatar Muslims—who oppose the Russian occupation of their homeland—are routinely charged with terrorism based on their ethno-religious identity rather than any substantive evidence. Many of these individuals receive prison sentences of up to 20 years. 

New York Releases New Proposed Curriculum Rules For Nonpublic Schools

On March 10, the New York Education Department announced the release of the third version of Proposed Regulations (full text) to assure substantially equivalent instruction for non-public school students. According to Hamodia:

These regulations, like the those previously proposed, require periodic reviews of every nonpublic school by their LSA (local school district or authority).

Where they differ is that they offer a few paths for a nonpublic school to avoid those reviews, at least initially. One such path is “registration” — which is the technical term for a high school that administers the Regents examinations. Another is “accreditation” by an agency that is approved by the State Education Department....

Our analysis is that all of the non-Jewish private schools will be exempt from LSA reviews while a majority of yeshivos will not be exempt. As a result, these regulations governing the substantial equivalency reviews by LSAs will be applied exclusively at yeshivos.

Churches Can Move Ahead On Damage Claims Against County For Its COVID Orders

In Calvary Chapel San Jose v. Cody, (ND CA, March 18, 2022), two churches and their pastors sued the state of California and Santa Clara County over their COVID orders. As explained by the court:

Beginning in March 2020, both the State and the County issued emergency orders that instituted capacity limits for certain types of facilities, restricted the practice of certain activities (including singing and chanting), and required individuals to wear masks in many situations....

[Plaintiffs alleged] that the emergency orders imposed harsher restrictions on churches than on other institutions. When Calvary Chapel admittedly defied those orders, Plaintiffs allege that the County sent threatening letters to the church’s bank and levied against it millions of dollars in fines for the violations. Plaintiffs bring nine claims, alleging violations of their First, Eighth, and Fourteenth Amendment rights under the Federal Constitution, violations of the California Constitution, and a violation of California’s Bane Act.

The court granted the state of California's motion to dismiss, finding that plaintiffs' claims for injunctive and declaratory relief are moot, and that any claim for damages is barred by the 11th Amendment. However damage claims against the county were allowed to move forward. The court concluded that plaintiffs had adequately plead free exercise, freedom of assembly, equal protection, and excessive fines claims.

Recent Articles of Interest

From SSRN:

• Muhammad Munir, The Role of Shari‘a in the Legal System of Pakistan, (January 16, 2022).
• Donna M. Gitter, First Amendment Challenges to State Vaccine Mandates: Why the U.S. Supreme Court Should Hold That the Free Exercise Clause Does Not Require Religious Exemptions, 71 Am. U. L. Rev. (2022, Forthcoming).
• Robert K. Vischer, Christian Nationalism and the Rule of Law, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 22-18 (2022).
• Gregory C. Sisk & Michael Heise, Where to Place the “Nones” in the Church and State Debate? Empirical Evidence from Establishment Clause Cases in Federal Court, (St. John's Law Review , Vol. 96, No. 3, 2022).
• Patricia Wiater, Not Who but What Can Hold Human Rights? Companies and Nature as Subjects of Human Rights Protection, (December 18, 2021).
• Emad H. Atiq, Reasonable Moral Doubt, (97 N.Y.U. Law Review (Forthcoming 2022)).
• Rachel Tomlinson Dick, Play Like A Girl: Bostock, Title IX's Promise, and the Case for Transgender Inclusion in Sports, 101:1 Neb. L. Rev. (2022 Forthcoming)).

From SmartCILP and elsewhere:

• Brett A. Geier, Funding God's Schools—A Legal Analysis of Appropriating Public Dollars to Parochial Schools: Does Michigan's Latest Legislation Violate the Separation of Church and State?, [Abstract], 49 Journal of Law & Education 285-338 (2020).
• Journal of Law & Religion, Volume 37, Issue 1, January 2022.

Court Clerk Violated Rights Of Same-Sex Couples

In Ermold v. Davis, (ED KY, March 18, 2022), a high-profile case that has been pending since 2015, a Kentucky federal district court held that Rowan County Clerk Kim Davis violated the constitutional rights of two same-sex couples when she refused, on religious grounds, to issue them marriage licenses. Rejecting Davis' claim of qualified immunity, the court said: "Davis did not make a mistake. Rather, she knowingly violated the law."  Allowing plaintiffs to move ahead with their civil rights claim, the court said in part:

Ultimately, this Court’s determination is simple—Davis cannot use her own constitutional rights as a shield to violate the constitutional rights of others while performing her duties as an elected official.

The court said that a jury should decide whether plaintiffs are entitled to compensatory and punitive damages. AP reports on the decision. [Thanks to Scott Mange for the lead.] [UPDATED]

New Washington State Law Protects Abortion Rights

As reported by MyNorthwest, on Thursday, Washington Governor Jay Inslee signed HB1851 (full text) protecting the right to abortion before viability of the fetus or to protect the life or health of the pregnant individual.  It provides in part:

The state shall not penalize, prosecute, or otherwise take adverse action against an individual based on their actual, potential, perceived, or alleged pregnancy outcomes. Nor shall the state penalize, prosecute, or otherwise take adverse action against someone for aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent.

The new law also provides in part in its statement of policy:

Although the abortion rights movement has historically centered on women in our advocacy, that must no longer be the case and it is critical that we recognize that transgender, nonbinary, and gender expansive people also get pregnant and require abortion care.

Consistent with this, references to "woman" in the state's abortion laws were changed to "pregnant individual". 

New Ohio Law Allows Religious Apparel For Student Athletes

On Feb. 28, Ohio Governor Mike DeWine signed into law Senate Bill 181 (full text) which allows students to wear religious apparel while competing in inter-scholastic athletic competitions or extracurricular activities.  A limited exception allows regulation where the apparel would create a legitimate danger. In such cases, reasonable accommodation is required. Don Byrd has additional background on the law.

Anti-Abortion Protesters Can Move Ahead With Challenge To COVID Order

 In Global Impact Ministries, Inc. v. City of Greenspboro, (MD NC, March 16, 2022), a North Carolina federal district court allowed plaintiffs who were anti-abortion protesters, to move ahead with their free speech, freedom of association, equal protection, due process and 4th Amendment claims.  Plaintiffs allege that the city's COVID stat-at-home order was enforced to bar them from walking, praying, and counseling outside of an abortion clinic while others who were not praying or engaging in religious speech were allowed to walk in the area. The court did dismiss plaintiffs' free exercise claim, finding that the COVID order was neutral and generally applicable.

ABC Surveys Religious Views Of SCOTUS Nominee Jackson

 ABC News features an article surveying what is known about Supreme Court nominee Ketanji Brown Jackson's religious beliefs. ABC points to religious references in two speeches out of 2000 pages of documents and one year of service on an advisory board of Montrose Christian School where Jackson focused mainly on fundraising.  ABC reports:

Friends and former colleagues close to Jackson have described her religious practice as private and deeply personal, neither a frequent topic of conversation nor an overly outward display. She identifies as a Protestant Christian, one Jackson associate, who asked to speak anonymously due to sensitivity of the matter, told ABC News.

Indian Court Upholds Hijab Ban In Schools and Colleges

As reported by CBS News:

The top court in the southern Indian state of Karnataka on Tuesday upheld a ban on hijabs, or Muslim headscarves, in schools and colleges in a ruling that could deepen the religious divide in the country.

In Resham v. State of Karnataka, (High Ct. Karnataka, March 15, 2022), a 3-judge panel of the High Court of the Indian state of Karnataka in a 129-page opinion upheld the ban, saying in part:

wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith.

Kansas Teacher Sues Over Requirement To Use Students' Preferred Pronouns

 CNN reported last week on a lawsuit filed by a Fort Riley, Kansas middle school teacher who was disciplined for refusing to call a transgender student by the student's preferred name and pronouns. The complaint alleges in part:

Any policy that requires Ms. Ricard to refer to a student by a gendered, non-binary, or plural pronoun (e.g., he/him, she/her, they/them, zhe/zher, etc.) or salutation (Mr., Miss, Ms.) or other gendered language that is different from the student's biological sex actively violates Ms. Ricard's religious beliefs.

Recent Articles of Interest

 From SSRN:

• Ronald J. Colombo, A Legal Analysis of Religious Arbitration, (Canopy Forum 2022 (Center for Law and Religion / Emory University)).
• Kyle Velte, Lesson for LGBT Rights Advocates from Who's the Bigot?, (Journal of Law and Religion, Vol. 36, No. 341, 2021).
• Andrew M. Koppelman, The Increasingly Dangerous Variants of the “Most-Favored-Nation” Theory of Religious Liberty, (Northwestern Public Law Research Paper No. 22-1 (2022).
• Pasquale Annicchino, Friends of the Court: Christian Conservative Arguments on Human Dignity Before the U.S. Supreme Court and the European Court of Human Rights, (BYU Law Review 2021).
• Carliss Chatman, We Shouldn't Need Roe, (UCLA Women's Law Journal, Forthcoming).

From SSRN (Non-U.S. Law)

• Samiul Hasan, Islam in Bangladesh: Decline of the Liberal Hanafi School in the Information Age, (March 7, 2022).
• Imran A. Nyazee, The Future of Islamic Law, (February 12, 2022).
• Laura T. Kessler, Achieving Equality without a Constitution: Lessons from Israel for Queer Family Law, (in Queer and Religious Alliances in Family Law Politics and Beyond (Nausica Palazzo & Jeffrey A. Redding eds., Anthem Press) (2022 Forthcoming).
• Raphael Cohen-Almagor, The Republic, Secularism and Security: France versus the Burqa and the Niqab (Introduction), (Cham: Springer, 2022).
• Kristopher Kinsinger, Quebec's Bill 21 and the Secular Conceit of Religious Neutrality, (IJRF Vol 13:1/2 2020).
• Jeffrey A. Redding, Translating 'Courts' Cautiously, (The Immanent Frame: Secularism, Religion, and the Public Sphere 2021).
• Jeffrey A. Redding, Religion, (The Cambridge Companion to the Constitution of India (Aparna Chandra, Gautam Bhatia, Niraja Gopal Jayal eds., 2022).
• Alec Stone Sweet, Wayne Sandholtz & Andenas, The Failure to Destroy the Authority of the European Court of Human Rights: 2010-2018, (March 12, 2022).
• Berihun Adugna Gebeye, Global Constitutionalism and Cultural Diversity: The Emergence of Jurisgenerative Constitutionalism in Africa, (Global Constitutionalism 2021).

From SmartCILP:

• Daniel Cameron & Matthew F. Kuhn, Religious Liberty in the Age of COVID-19: Kentucky's Experience, 59 University of Louisville Law Review 203-226 (2021).

Defamation Suit Dismissed On Ecclesiastical Abstention Doctrine

In Heras v. Diocese of Corpus Christie, (TX App, March 10, 2022), a Texas state appellate court affirmed the dismissal on ecclesiastical abstention grounds of defamation suits by two priests who were included on the diocese's list of clergy who have been credibly accused of sexually abusing a minor. The court said in part:

[W]e hold appellants’ defamation suits are barred by the ecclesiastical abstention doctrine because the substance and nature of the appellants’ claims against appellees are inextricably intertwined with appellees’ internal directive for openness and transparency.... More specifically, appellants’ claims are inextricably intertwined with appellees’ decision to release the list incompliance with an internal church directive....

Texas Supreme Court Effectively Ends Challenge To Heartbeat Abortion Ban

The Texas Supreme Court, answering a question of state law certified to it by the U.S. 5th Circuit Court of Appeals, has effectively prevented abortion providers from challenging Texas "heartbeat" abortion law.  In Whole Woman's Health v. Jackson, (TX Sup.Ct., March 11, 2022), the court concluded:

Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the Act’s requirements, either directly or indirectly.

CNN reports on the decision. 

Israel's Chief Rabbi Proposes Special Court To Aid Ukrainian Refugees In Proving Religious Status

Jewish Press and Israel Hayom yesterday reported that Israel's Chief Ashkenazi Rabbi David Lau in a letter to Israel's attorney general has proposed setting up a special religious court (Beit Din) to assist the expected 30,000 or more refugees from Ukraine in proving their Jewish status, thus entitling them to Israeli citizenship under the Law of Return.  The refugees are now entering the country with tourist visas.  Lau pointed out that many Ukrainians fled their homes without documentation of their religious status. Lau plans to appoint three retired religious court judges with experience in this area to the special Beit Din.

Lawsuit By Nun Seeks A Religious Exemption From D.C.'s Healthcare Professionals' Vaccine Mandate

Litigation over the denial of religious exemptions from COVID vaccine mandates continues. This week, a suit was filed in the D.C. federal district court by a nun who is a surgeon and family physician. The DC health department denied her request for a religious exemption from its vaccine requirement for health care professionals.  The complaint (full text) in Byrne v. Bowser, (D DC, filed 3/9/2022) contends that this violates Sr. Deirdre's rights under RFRA and the Free Exercise Clause. In seeking a temporary restraining order and preliminary injunction. plaintiff lists the various medical services she will be unable to perform, including "her abortion pill reversal ministry with the result that human lives that could have been saved in utero might well be lost." Attached to the complaint are nearly 450 pages of exhibits. Thomas More Society issued a press release announcing the filing of the lawsuit.

Legal Responses Continue To Texas Ban On Gender Transition For Minors

 As previously reported, last month Texas Attorney General Ken Paxton in an Attorney General Opinion 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. Building on this opinion, Governor Greg Abbott sent a letter 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. As those investigations began, numerous legal developments followed.

On March 2, the Office for Civil Rights of the U.S. Department of Health and Human Services issued a Guidance on Gender Affirming Care which read in part:

Section 1557 protects the right of individuals to access the health programs and activities of recipients of federal financial assistance without facing discrimination on the basis of sex, which includes discrimination on the basis of gender identity.... [I]f a parent and their child visit a doctor for a consultation regarding or to receive gender affirming care, and the doctor or other staff at the facility reports the parent to state authorities for seeking such care, that reporting may constitute violation of Section 1557 if the doctor or facility receives federal financial assistance.

In response, the state of Texas filed an amended complaint (full text) in its pending lawsuit against the federal government (State of Texas v. EEOC, ND TX filed 3/9/2022)  challenging this Guidance.

Meanwhile, in Jane Doe v. Abbott, (TX Dist. Ct., March 2, 2022), a Texas state trial court granted a temporary restraining order providing: "Defendants are immediately enjoined and restrained from taking any actions against Plaintiffs based solely on the Governor’s letter and DFPS statement ... as well as Attorney General Paxton’s Opinion...." The state Court of Appeals in Abbott v. Jane Doe, (TX App., March 9, 2022), held that the TRO was not an appealable order. Texas Tribune reports on some of these developments.

Alaska Supreme Court Upholds Award Of Vaccination Decision-Making To Father Over Mother's Religious Objections

 In Lady Donna Dutchess v. Dutch, (AK, March 9, 2022), the Alaska Supreme Court upheld a trial court's decision awarding sole authority to make decisions regarding vaccinations to a divorced father. The mother objected to all vaccinations for the children on religious grounds. The mother contended that this violated her free exercise rights under the state and federal constitutions. Rejecting that argument, the Alaska Supreme Court said in part:

We are not convinced that heightened scrutiny necessarily applies to child custody determinations allocating decision-making authority between parents, nor did the parties brief this issue. We note that several other state courts have concluded that strict scrutiny does not apply to a custody determination between parents with divergent religious convictions.... [A] court’s application of custody statutes in a manner exhibiting “a preference for the religious over the less religious” would essentially place “government on the side of organized religion, a non-secular result that the establishment clause is designed to prevent.” ...[T]he superior court here properly considered how the mother’s desire not to vaccinate the children was contrary to the recommendation of the children’s pediatrician and counter to their best interests.

Even if we were to apply heightened scrutiny ... , the superior court’s ruling would withstand review. The Statehas “an undeniably compelling interest in protecting the health of minors.”

Another Suit Seeks Religious Exemptions From Military's Vaccine Mandate

Yet another group of military personnel have filed suit challenging the military's COVID vaccine mandate.  As in a number of other cases, plaintiffs complain that while regulations allow religious exemptions, almost all applications for them are denied.  The complaint (full text) in Roth v. Austin, (D NE, filed 3/8/2022), was filed by 36 Air Force and Air National Guard members who allege that their rights under RFRA and the First Amendment have been infringed. WOWT reports on the lawsuit.

Sanctions On Russian Financial Firm Leads Counsel To End Representation In Litigation Over Recovery Of Jewish Books From Russia

As previously reported, for nearly two decades Agudas Chasidei Chabad has been attempting to recover from the Russian government two expropriated collections of valuable Jewish religious books and manuscripts. In 2013, the D.C. federal district court held the Russian government and three of its agencies in civil contempt, and imposed sanctions of $50,000 per day, for not complying with a 2010 default judgement ordering it to return the materials.  Plaintiffs have been attempting to find Russian assets to satisfy the sanctions by issuing subpoenas to various entities. In Agudas Chasidei Chabad of United States v. Russia Federation, (DC Cir., Dec. 3, 2021), the D.C. Circuit Court of Appeals refused to quash subpoenas directed at several Russian entities, including State Development Corp VEB.RF. (Background).  At the same time that an appeal to the U.S. Supreme Court was being planned, Russia began aggressive moves toward Ukraine. This led the U.S. to impose sanctions on VEB.RF. (Department of Treasury Press Release, Feb. 22, 2022). Now, as reported by Reuters, VEB.RF's lawyers in the litigation with Chabad, the global firm of Freshfields Bruckhaus Deringer, announced on Monday that it is ending its representation of VEB.RF. On Monday, the law firm filed a Motion (full text) with the D.C. Circuit seeking a stay of proceedings until VEB has obtained substitute counsel.

Suit Challenges DC's Remaining Mask Mandate For Catholic Schools

In Mayor's Order 2022-029 (Feb. 14, 2022), the District of Columbia lifted its COVID mask mandate for various business and recreation venues, and houses of worship, but continued the mandate for a number of facilities including "Public, public charter, private, parochial, and independent schools."  On Monday, suit was filed in the D.C. federal district court by parents of Catholic school students alleging that keeping the mask mandate on Catholic schools violates RFRA and the First Amendment. The complaint (full text) in Dugan v. Bowser, (D DC, filed 3/7/2022) alleges in part:

Defendants’ mandate requiring the children to wear masks in their Catholic school classrooms—while allowing children and adults to not wear masks nearly everywhere else—is arbitrary, unscientific, and irrational. Under Defendants’ policy, a child could sit for hours at the Wizards game at the crowded Capitol One Arena without wearing a mask, but she must cover her face for seven hours a day, the moment she steps into her Catholic school building....

In addition to unconstitutionally burdening Catholic schools and treating them unequally, Defendants’ prolonged mask mandate has had substantially detrimental effects on—and is continuing to significantly impede—the Parents’ children’s Catholic formation and education.

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

UPDATE: On March 11, ADF announced that the lawsuit has been voluntarily dismissed after D.C. revoked the mask mandate.  (Plaintiff's Notice of Voluntary Dismissal).

Questionnaire Upheld As Basis For Vaccine Religious Exemption

In Ferrelli v. State of New York Unified Court System, (ND NY, March 7, 2022), a New York federal district court upheld the system for determining whether employees are entitled to religious exemptions from the COVID vaccine mandate imposed on all judges and employees of the New York state court system. The court described the screening process for exemptions in part as follows:

[T]he two most common reasons for seeking a religious exemption were (1) concern about the connection between COVID-19 vaccines and fetal cells, and (2) concern about the sanctity or purity of the applicant’s body.... Because the committee often found the information in applicants’ personal statements insufficient to assess the basis for and sincerity of the belief, it created a supplemental form.... In particular, Section A inquires as to applicants’ use of other medications and vaccinations that were tested using fetal cell lines, and requests explanations of inconsistencies in past or present use of such products.... Section B requests information about other medicines, medical treatments, vaccines and/or foods from which the applicant abstains due to her religious beliefs; when she began abstaining; and why her faith requires such abstention.....

The court concluded that this exemption process was neutral and generally applicable, saying in part:

Defendants have not created a system of individualized exemptions and refused to extend it to religious hardships. Rather, they have created a system of religious exemptions and refused to extend it to Plaintiffs based on responses, or lack thereof, to a supplemental form.

Pentagon Asks Supreme Court To Stay Injunction Obtained By Navy SEALS Who Object To Vaccines

 Yesterday in Austin v. U.S. Navy Seals 1-26 the Pentagon filed with the Supreme Court an Application (full text) for a stay while appeals are pending of an injunction issued by a Texas federal district court. In the case, the district court issued a preliminary injunction barring the Navy from imposing its COVID vaccine mandate on 35 Navy service members who have religious objections to the vaccines. (See prior posting.) The  Pentagon sought a stay of the injunction from the 5th Circuit insofar as it precludes the Navy from considering vaccination status in making deployment, assignment, and other operational decisions. The 5th Circuit refused to grant the stay. (See prior posting.)  In its Application to the Supreme Court, the Pentagon contends in part:

[E]ven if respondents’ claims had merit, respondents would not be entitled to an injunction dictating the Navy’s deployment, assignment, and operational decisions.... An injunction that trenches on core Article II prerogatives concerning which military servicemembers are qualified for which missions  ... has no precedent in our Nation’s history.

The Application was filed with Justice Alito who called for appellees to respond by March 14. SCOTUSblog reports on the filing.

Christian Student Sues His High School For Bullying and Harassment

 Suit was filed last week in a Florida federal district court by a Christian high school student against his public charter school alleging bullying and harassment by students, reinforced by the school, because he regularly brought a Bible to school and read it during his free time.  The complaint (full text) in Ortiz v. Mater Academy, Inc., (SD FL, filed 2/28/2022) summarizes the allegations as follows:

Nicholas Ortiz, a 14-year-old freshman, was discriminated and retaliated against by his high school, Mater Academy, because he is a Christian. Nicholas repeatedly made the school aware of a pattern of pervasive bullying by his fellow students, bullying that was reinforced by the words and actions of the school. Yet the school did not just sweep Nicholas's bullying claims under the rug-- failing to report them as required under the law-- they retaliated against Nicholas for reporting the harassment.... The school validated the despicable false rumors about Nicholas being broadcast on social media, [and] denied Nicholas due process....

The 57-page complaint sets out in detail the instances of bullying and harassment, including fellow-students ripping pages from his Bible. Numerous social media postings are reproduced in the complaint. The complaint alleges 1st and 14th Amendment violations as well as various state law claims. Christian Headlines reports on the lawsuit.

Code Enforcement Against Buddhist Temple Did Not Violate Free Exercise Clause Or RLUIPA

In Temple of 1001 Buddhas v. City of Fremont, (ND CA, March 4, 2022), a California federal district court dismissed a suit by a Miaolan Lee who lives on property owned by the Temple of 1001 Buddhas challenging the city's enforcement of the state's building, electrical and plumbing codes. Among others, the court dismissed plaintiff's free exercise and RLUIPA claims, saying in part:

Although the code enforcement does not permit her to use (for any purpose) the three buildings that are in severe noncompliance, Lee can exercise her religion elsewhere on her property. The code enforcement does not at all “coerce [her] into acting contrary to [her] religious beliefs or exert substantial pressure on [her] to modify his behavior and to violate [her] beliefs.” ...

Lee argues that the City violated RLUIPA when West “instruct[ed] Plaintiff Lee that she could only pray on the property in the main house or in the dome Meditation Hall and nowhere else on the Real Property.” ... Lee contends that this act was “an implementation of a land use regulation.”... [T]he Court now concludes that Lee does not state a claim on this basis because Lee does not plausibly allege that this remark constituted the “application of a zoning or landmarking law” within the meaning of RLUIPA.

Recent Articles Of Interest

From SSRN:

• Mark Rienzi, Religious Liberty and Judicial Deference, (Notre Dame Law Review, 2022).
• Sherif Girgis, Defining 'Substantial Burdens' on Religion and Other Liberties, (August 26, 2021).
• Netta Corren Barak, Yoav Kan-Tor, & Nelson Tebbe, Examining the Effects of Antidiscrimination Laws on Child Welfare: Law on the Books, (February 25, 2022).
• Bradley J. Lingo & Michael Schietzelt, A Second-Class First Amendment Right? Text, Structure, and Free Exercise After Fulton, (February 25, 2022).
• Samuel J. Levine, The Supreme Court’s Hands-Off Approach to Religious Questions in the Era of COVID-19 and Beyond, (24 J. Const. L. 276 (2022)).
• Anna Offit, Religious Convictions, (101 N.C. L. Rev. __ (Forthcoming).
• Robin S. Maril, The Administrative State and the Executive Establishment of Religion, (February 28, 2022).
• Robert C. Blitt, Human Rights and Disinformation Under the Trump Administration: The Commission on Unalienable Rights, (St. Louis University Law Journal, Vol. 66, 2021).
• Sonya G. Bonneau, The Romantic Author as Compelled Speaker,(March 1, 2022).

From SSRN (Reproductive Rights):

• Robert A. Bohrer, A Freezer Chest of Frozen Embryos: Valuing Lives, (February 22, 2022).
• Itay Ravid & Jonathan Zandberg, The Future of Roe and the Gender Pay Gap: An Empirical Assessment, (March 2, 2022).
• Jeffrey A. Parness, Abortion and Safe Haven Laws, (93 University of Colorado Law Review Online (2022 Forthcoming)).

From SSRN (Non-U.S. Law):

• Barry Winston Bussey, Not Set in Stone: Constitutional Religious Rights and Direct Democracy in Canada, (Direct Democracy Practices at the Local Level, edited by Christophe Emmanuel Premat, IGI Global, 2022, pp. 154-178).
• Smriti Parsheera, Half the Land with Half the Sky: Seeking Inheritance Rights for Lahaul's Tribal Women, (February 22, 2022).
• Chhavi Tiwari, Srinivas Goli, & Mohammad Zahid Siddiqui, Poverty, Wealth Inequality, and Nancial Inclusion among Castes in Hindu and Muslim Communities in Uttar Pradesh, India (January 4, 2022), (Journal of International Development. Forthcoming).
• Nizamuddin Ahmad Siddiqui, Personal Laws in India: A Theoretical Investigation from the Perspective of Muslim Personal Law, (1(1) Journal of Law and Religious Affairs 63 (2021)).

From SmartCILP:

• Ralph Gants, Remarks at the Islamic Society of Boston Cultural Center, 62 Boston College Law Review 2745-2746 (2021).

Court Issues TRO Preventing Enforcement Of Texas Governor's Order On Gender Transition Treatment For Minors

As reported in an ACLU press release, earlier this week a Texas state trial court in Jane Doe v. Abbott, (TX Dist. Ct., March 2, 2022), issued a temporary restraining order barring enforcement against the named plaintiffs of Texas Gov. Greg Abbott's order to investigate for child abuse parents who facilitate gender reassignment treatment for minors. (See prior posting.) The court said in part:

[T]he Court finds Plaintiffs will suffer irreparable injury unless Defendants are immediately restrained.... Jane Doe has been placed on administrative leave at work and is at risk of losing her job and ... Jane, John and Mary Doe face the imminent and ongoing deprivation of their constitutional rights, the potential loss of necessary medical care, and the stigma attached to being the subject of an unfounded child abuse investigation.... [I]f placed on the Child Abuse Registry, Jane Doe could lose the ability to practice her profession and both Jane and John Doe could lose their ability to work with minors and volunteer in their community.

The Court further finds that Plaintiff Mooney could face civil suit by patients for failing to treat them in accordance with professional standards and loss of licensure for failing to follow her professional ethics if she complies with Defendants’ orders and actions. If she does not comply with Defendants’ orders, Dr. Mooney could face immediate criminal prosecution, as set forth in the Governor’s letter.

The court set a temporary injunction hearing for March 11.

Supreme Court In Muslim Surveillance Case Says State Secrets Doctrine Survives FISA

The U.S. Supreme Court today, in a unanimous opinion written by Justice Alito issued a narrow decision in Federal Bureau of Investigation v. Fazaga, (Sup. Ct., March 4, 2022). The case involves a class action lawsuit filed by Muslims in California who claim they were subjected to illegal surveillance. The district court dismissed the suit under the "state secrets" doctrine.  The 9th Circuit reversed holding that FISA displaced the state secrets doctrine. The Supreme Court held that FISA does not displace the state secrets doctrine, but did not resolve the parties disagreement about the interpretation of the relevant portion of FISA, nor did it decide whether the district court was correct in dismissing the suit on the pleadings. Deseret News reports on the decision.

Florida Passes 15-Week Abortion Ban

Yesterday the Florida legislature gave final passage to H5 (full text) which, among other things, prohibits abortions after 15 weeks of pregnancy except to save the mother's life, to avert serious risk of imminent substantial and irreversible physical impairment of a major bodily function, or in the case of a non-viable fetus that has a fatal abnormality. AP reports on the legislation.

Supreme Court Allows New Kentucky AG To Intervene To Defend Abortion Restrictions

Yesterday in Cameron v. EMW Women's Surgical Center, (Sup. Ct., March 3, 2022), the U.S. Supreme Court by an 8-1 vote ruled that the newly-elected Kentucky Attorney General (a Republican) should have been allowed to intervene to defend a Kentucky statute that banned D&E abortions prior to fetal demise. The newly elected Democratic governor (through a cabinet official) had agreed not to pursue appeals of the 6th Circuit's decision holding the law unconstitutional. Justice Alito wrote the opinion for the Court. Justice Thomas filed a concurring opinion. Justice Kagan, joined by Justice Breyer, concurred in the judgment, writing an opinion that reached the same conclusion as the majority, but through a different rationale. Only Justice Sotomayor dissented. CNN reports on the decision.

French High Court Upholds Ban On Lawyers Wearing Religious Garb In Court

France's Court of Cassation, one of the country's four courts of last resort, this week upheld a rule of the Lille bar association that provides: "the lawyer may not wear with the robe either decoration or sign ostensibly manifesting a religious, philosophical, community or political affiliation or opinion."  One of the litigants was a law student who wears a hijab.  In Appeal No. 20-20.185, (Ct. Cassation, March 2, 2022), the court said in part:

[T]he Court of Appeal held that the will of a bar association to impose on its members, when they appear before a court ... to wear a uniform suit contributes to ensuring the equality of lawyers and, through this, the equality of litigants..., that in order to protect their rights and freedoms, each lawyer, in the exercise of his functions of defense and representation, must erase what is personal to him and that the wearing of the costume of his profession without any sign distinctive is necessary to testify to its availability to any litigant.

24. The Court of Appeal ... rightly deduced that the prohibition ... was necessary in order to achieve the legitimate aim pursued, namely to protect the independence of the lawyer and ensure the right to a fair trial, but was also, without any discrimination, adequate and proportionate to the objective sought.

Jurist reports on the decision.

Stay Of Injunction Denied In Suit Over Religious Exemptions From Military's Vaccine Mandate

In Navy Seal 1 v. Austin, (MD FL, March 2, 2022), a Florida federal district court refused to stay, pending appeal, an injunction that had been granted to two service members who refused to comply with the military's COVID vaccine mandate.(See prior posting.)  In refusing the stay, the court said in part:

Although certainly not “given the task of running the Army,” the courts in the narrow instance of RFRA are given the task of ensuring that those who are given the task of running the Army (and the armed forces in general and every other component of the federal government) conform their actions to the governing law, to RFRA, to which the admirals and the generals and commandants are unquestionably subordinate — just like the President, the Speaker of the House, the Chief Justice, and every other person in the federal government.

Liberty Counsel issued a press release announcing the decision.

9th Circuit: Arizona's Free Exercise Statute Did Not Repeal Limit On Prisoner Suits

In Crespin v. State of Arizona, (9th Cir., March 3, 2022), the U.S. 9th Circuit Court of Appeals held that Arizona's Free Exercise of Religion Act did not repeal by implication a provision in Arizona's statutes that allows prisoners to sue for injuries suffered while incarcerated only if the inmate alleges serious physical injury.

Pro-Life Demonstrators Have Free Exercise Claim After Arrest For Violating COVID Order

In Global Impact Ministries v. Mecklenburg County, (WD NC, March 1, 2022), a North Carolina federal district court allowed pro-life demonstrators who were arrested for violating a county-city COVID stay-at-home order to move ahead with their free exercise, but not their free speech, claim for nominal damages. Discussing the free exercise claim, the court said in part:

Until fairly recently, the Supreme Court’s Free Exercise jurisprudence was highly deferential to COVID-19 regulations that burdened religion.... That deference changed dramatically with the Supreme Court’s decisions in Roman Catholic Diocese v. Cuomo ... and Tandon v. Newsom....

Plaintiffs allege that the Proclamation precluded them from engaging in pro-life activities, which Plaintiffs believe are a form of religious ministry.... They allege that shoppers at Home Depot were exempted from gathering limits, while their religiously motivated gatherings were prohibited.... Those activities are comparable for purposes of the Free Exercise analysis.... Because shopping indoors is likely to present greater risk for spreading COVID-19 than socially distanced sidewalk advocacy, strict scrutiny must apply here....

Moving to the free speech claim, the court said in part:

Defendant Mecklenburg County argues that the Proclamation was a valid content-neutral time, place, and manner restriction.... The Court agrees....

There is admittedly an obvious logical incongruity in finding that the Proclamation was not content-neutral for purposes of the free exercise claim, but content-neutral for purposes of the free speech claim. But neither the Supreme Court nor the Fourth Circuit has applied Tandon’s modified approach to content neutrality outside of the context of free exercise claims.

3rd Circuit: Foster Parents Have Religious Discrimination Claim For License Suspension Over Their Anti-LGBT Views

In Lasche v. State of New Jersey, (3rd Cir, March 1, 2022), the U.S. 3rd Circuit Court of Appeals reversed a district court's dismissal of a suit by former foster parents who alleged that their free exercise rights were infringed when their foster care license was suspended because of their religious opposition to same-sex marriage and their religious belief that homosexual conduct is sinful. The court remanded for further proceedings plaintiffs' claims under 42 USC §1983 and §1985(3).  It also remanded for further proceedings their claim that defendants' action violated New Jersey's Law Against Discrimination, finding that the state's Division of Child Protection and Permanency is a "place of public accommodation" under that law.

Court Concludes Church Did Not Fire Cook Who Cohabited Outside of Marriage

In Sandoval v. Madison Equal Opportunities Commission, (WI App, Feb. 24, 2022), a Wisconsin state appellate court upheld the finding of the Madison Equal Opportunities Commission that Capitoland Christian Center Church did not engage in employment discrimination against plaintiff who was employed as a cook by the church.  Plaintiff violated an agreement with the church that she would not cohabit with members of the opposite gender outside of wedlock. The court concluded that substantial evidence supported the Commission's finding that plaintiff resigned and was not fired nor constructively discharged. Christian Post reports on the decision.

Satanic Temple Sues Billboard Company Over Abortion Ritual Ads

The Satanic Temple filed suit last week in an Arkansas federal district court claiming that a billboard advertising company violated the Arkansas Civil Rights Act by refusing to perform under its contract  to put up billboards in Arkansas and Indiana that would spread awareness of TST's Satanic Abortion Ritual. Arkansas Code § 16-123-107 prohibits religious discrimination in contractual and property transactions. The complaint (full text) in The Satanic Temple, Inc. v. Lamar Media Company, (WD AR, filed 2/25/2022), alleges in part:

Part of this case will involve proving that TST’s Satanic Abortion Ritual is substantively different than getting a secular abortion, even though it involves the abortive act, such that this advertising contract contemplated a religious message.....

The Satanic Abortion Ritual is a ceremonious casting off of guilt, doubt, and mental discomfort that the member may be experiencing in connection with their election to abort the pregnancy.

The complaint also alleged breach of contract claims. Arkansas Democrat Gazette reported on the lawsuit.

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.