Religion Clause

Monday, May 09, 2022

Friday, May 06, 2022

1st Circuit Hears Oral Arguments On Religious Exemption To School's Vaccine Mandate

The U.S. 1st Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Harris v. University of Massachusetts, Lowell. In the case, a Massachusetts federal district court rejected a student's objections to the manner in which her request for a religious exemption from the school's COVID-19 vaccine requirement was handled. (See prior posting.)

Church Cannot Remove Cremated Remains Over Objections Of Families

In Church of the Holy Spirit of Wayland v. Heinrich, (MA App., May 5, 2022), a Massachusetts state appellate court held that a church which had sold its property was not free to relocate cremated remains buried in its churchyard over the objections of families of those buried there. In the case, an Episcopal parish that had ceased operating sold it church building and attached burial ground to a Coptic church. The Coptic church wanted to develop the land; it also had religious objections to cremation. The court said in part:

[I]n the absence of a governing statute, common law trust principles apply to the disinterment of human remains from a dedicated burial ground until the families of the deceased have abandoned the remains or the burial ground is no longer recognizable as such....

It is uncontested that the Coptic church has a sincerely held opposition to cremation on religious grounds. The next question, however, is whether judicial relief in favor of the families would substantially burden the Coptic church's exercise of its religious beliefs.... [W]e fail to see how a judicial order preventing the Coptic church from removing those remains would constitute government interference with that church's free exercise of religion rights. And it bears noting that the unilateral disinterment of the remains potentially might implicate the families' own free exercise of religion rights.

The court also concluded that allowing two parties who had purchased burial rights for their own remains to be buried in the churchyard next to remains of their families would not infringe the free exercise rights of the Coptic church:

[I]t simply would prevent the Coptic church from interfering with rights that the individuals themselves hold in the property. Nor has the Coptic church demonstrated that such a judicial order could be seen as compelling it to endorse cremation.

Thursday, May 05, 2022

Today Is National Day Of Prayer

Yesterday President Biden issued a Proclamation (full text) declaring today to be National Day of Prayer. Federal law, 36 USC §169h, provides:

The President shall set aside and proclaim the first Thursday in May in each year as a National Day of Prayer, on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

The President's Proclamation reads in part:

On this day, we recognize the healing power of prayer, especially as we recover from the trauma and loss of the COVID‑19 pandemic. Today we find ourselves in a moment of renewal — of lives saved, of new jobs created, and of new hope for rebuilding America. Today is also a moment of reflection when we are called to address some of the greatest challenges humanity has ever faced — saving our planet from the existential threat of climate change; responding to attacks on democracy at home and abroad; and living up to our Nation’s promise of liberty, justice, and equality for all.

Cert. Filed In Challenge To California's Extension Of Time To Bring Childhood Sex Assault Claims

A petition for certiorari (full text) was filed last month with the U.S. Supreme Court in Roman Catholic Bishop of Oakland v. Superior Court of the State of California,, (Docket No. 21-1377, filed 4/15/2022). In the case, 9 dioceses and archdioceses challenge California legislation that extended the limitation period for suits alleging childhood sexual assault to plaintiff’s 40th birthday or 5 years after discovery; created a 3-year window to bring previously time-barred civil actions for for childhood sexual assault; and provided for treble damages in cover-up cases. National Catholic Register reports on the cert. petition.

Satanic Temple Wants Its Flag To Be Raised At Boston City Hall

In the wake of the Supreme Court's decision earlier this week in Shurtleff v. City of Boston holding that Boston should have allowed Camp Constitution to briefly fly a Christian flag on a flag pole outside city hall, The Satanic Temple has asked Boston for similar treatment. AP reports:

The Salem-based group tweeted a request filed Tuesday with the city property management department to raise a flag marking “Satanic Appreciation Week” from July 23-29....

Lucien Greaves, the organization’s co-founder, said in an email Wednesday that the group wants to show that religious liberty must mean respect for “all forms” of religious practice and religious opinion.

Adventist School Sues Over Refusal Of Tournament To Accommodate Its Sabbath Observance

Suit was filed this week in an Alabama federal district court against the Alabama High School Athletic Association (AHSAA) by the Seventh Day Adventist Oakwood Academy that was forced to forfeit its further participation in this year's high school basketball championship tournament because the AHSAA refused to move the time of its game three hours later to permit the school to play without violating its Sabbath. The complaint (full text) in South Central Conference of Seventh Day Adventists v. Alabama High School Athletic Association, (MD AL, filed 5/3/2022), contends that the refusal to accommodate its religious exercise violated the Free Exercise and Establishment Clauses of the 1st Amendment. Al.com reports on the lawsuit.

Wednesday, May 04, 2022

European Court Says Belgium Can Protect Religion and Religious Beliefs Of Employees

In LF v. SCRL, (CJEU, April 28, 2022), the Advocate General of the Court of Justice of the European Union issued a recommended answer to a question referred to it by the Brussels (Belgium) Labor Court. At issue was whether a provision in Belgian law giving special protection to "religious or philosophical belief" of employees is consistent with European Council Directive 2000/78 on equal treatment in employment. The Directive allows countries to enact laws that are more protective than those set out in the Directive. The Advocate General concluded that Belgium could give special protection to "religion and religious beliefs" but not just to "religious or philosophical beliefs" since those are not separately protected categories. The question arose in a case in which a Muslim woman was not offered an internship for which she interviewed because she insisted on wearing a hijab or other head covering in violation of the employer's rule that employees not wear clothing that expresses their religious, philosophical or political beliefs. [Thanks to Law & Religion UK for the lead.]

Asatru Inmate Loses RLUIPA and Equal Protection Challenges

In Watkinson v. Alaska Department of Corrections, (9th Cir., May 2, 2022), the U.S. 9th Circuit Court of Appeals held that Alaska did not violate the rights of a prisoner who was a practitioner of Asatru when it prevented him from using firewood purchased through the Prison Welfare Fund (PWF) for religious purposes, and when it did not allow use of the Prison Welfare Fund for inmates to pool funds to purchase juice and honey in bulk. The court said in part:

RLUIPA does not require a state to facilitate or subsidize the exercise of religion or pay for devotional accessories.... ADOC policies do not deny Plaintiff access to any item necessary for his religious ceremonies, and Plaintiff may procure all necessary items without access to the PWF. Defendants’ policies thus did not substantially burden the exercise of Plaintiff’s religious practice...

The court also rejected plaintiff's 1st Amendment claim. In addition it rejected his Equal Protection claim, even though prison authorities allowed a Native American cultural group to use PWF-purchased firewood at the prison sweat lodge. According to the court:

The prison director testified that the groups are not similarly situated because the sweat lodge is a cultural rather than a religious activity.

Tuesday, May 03, 2022

Scientology Sued By Plaintiffs Alleging Years Of Abuse As Children

Suit was filed in a Florida federal district court last week under the Trafficking Victims Protection Reauthorization Act against the Church of Scientology by three plaintiffs who allege that they were abused by Scientology as children. The 90-page complaint (full text) in Baxter v. Miscavige, (MD FL, filed 4/28/2022), alleges in part:

As children, all three Plaintiffs grew up in, and were raised by Scientology. This was not a peaceful or loving environment; instead, it was a world filled with abuse, violence, intimidation, and fear. Defendants considered Plaintiffs to be possessions, void of any rights, whose sole purpose was to serve Defendants. Plaintiffs were placed on a ship they could not leave and routinely punished by being humiliated, interrogated, and imprisoned, for the sole purpose of ensuring Plaintiffs would continue to perform back breaking free labor for the Defendants.

Wonkette reports on the lawsuit.

Suit Challenges Ohio's Health Care Conscience Law

Suit was filed last week in an Ohio state trial court challenging ORC §4743.10 which allows health care practitioners, hospitals and insurers to refuse to participate any health care service that violates teir conscience as informed by the moral, ethical, or religious beliefs or principles they hold. The suit was filed by a community health care system that provides services to the LGBTQ+ community. The complaint (full text) in Equitas Health v. State of Ohio, (OH Com. Pl., filed 4/29/2022) contends that the law violates the Ohio constitution in that it is void for vagueness and violates the single-subject rule for legislation. The provision was inserted into last year's 2400-page budget bill. News5Cleveland reports on the lawsuit.

Preliminary Injunction Denied To Navy SEAL With Religious Objection To COVID Vaccines

In Navy SEAL 1 v. Austin, (D DC, April 29, 2022), a DC federal district court refused to grant a preliminary injunction to bar discharge or other adverse action against a Navy SEAL who refuses for religious reasons to comply with the military's COVID-19 vaccine mandate. The court said that plaintiff does not face imminent discharge because another federal district court has issued a class-wide injunction against that. As to other adverse action, the court said in part:

As currently pled, there are a plethora of weaknesses in Plaintiff’s claims that counsel against preliminary relief. First, there appears to be a serious question as to whether Plaintiff’s claims are justiciable, because they require the Court both to evaluate the merits of military expertise and to weigh technical issues of public health and immunology based on novel science that remains unfixed as the current COVID-19 pandemic turns endemic. Second, the Court is concerned that the record as it currently stands does not properly resolve whether mandatory vaccination is the least restrictive means as to Plaintiff to accomplish the Government’s interest in force readiness and national security more broadly. That fault permeates Plaintiff’s RFRA claim, Free Exercise claim, and Equal Protection claim. Taken together, the Court concludes these issues militate against preliminary relief at this early stage of the case.

Monday, May 02, 2022

Draft SCOTUS Opinion Overruling Roe v. Wade Is Leaked To The Press

Benefitting from an apparently unprecedented breach of Supreme Court confidentiality, Politico has obtained and published the first draft of a 67-page (plus Appendix) majority opinion written by Justice Alito in Dobbs v. Jackson Women's Health Organization. The draft opinion (full text) overrules Roe v. Wade. It reads in part:

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely-- the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty."...

The right to abortion does not fall within this category.

The draft opinion goes on to discuss the standards that should apply to challenges of state laws limiting abortion, saying in part:

Under our precedents, rational basis review is the appropriate standard for such challenges.... It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.... These legitimate interests include respect for and preservation of prenatal life at all stages of development, ... the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.

Unanimous Supreme Court Says Boston Violated Free Speech Clause In Barring Christian Flag Outside City Hall

In Shurtleff v. City of Boston, (Sup.Ct., May 2, 2022), the U.S. Supreme Court held unanimously that Boston violated the free speech rights of Camp Constitution when it refused to allow it to briefly fly a Christian flag on a third flagpole outside city hall which private groups have used to fly flags of their choice for ceremonies. In the past, the city had approved some 50 different flags and had never before refused a request. Boston contended that the flag was government speech and cited Establishment Clause concerns in barring the Christian flag. The Court rejected that contention, saying in part:

We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint “abridg[ed]” their “freedom of speech.”

Justice Breyer wrote the majority opinion which was joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh and Barrett. Justice Kavanaugh also filed a concurring opinion. Justice Alito, joined by Justices Thomas and Gorsuch filed an opinion concurring only in the judgment, saying in part:

...I cannot go along with the Court’s decision to analyze this case in terms of the triad of factors—history, the public’s perception of who is speaking, and the extent to which the government has exercised control over speech.... [T]reating those factors as a test obscures the real question in government-speech cases: whether the government is speaking instead of regulating private expression.

Justice Gorsuch, joined by Justice Thomas, filed a concurring opinion saying in part:

Not a single Member of the Court seeks to defend Boston’s view that a municipal policy allowing all groups to fly their flags, secular and religious alike, would offend the Establishment Clause.

How did the city get it so wrong? To be fair, at least some of the blame belongs here and traces back to Lemon v. Kurtzman, 403 U. S. 602 (1971)....

To justify a policy that discriminated against religion, Boston sought to drag Lemon once more from its grave. It was a strategy as risky as it was unsound. Lemon ignored the original meaning of the Establishment Clause, it disregarded mountains of precedent, and it substituted a serious constitutional inquiry with a guessing game. This Court long ago interred Lemon, and it is past time for local officials and lower courts to let it lie.

Bidens Extend Wishes for Eid Mubarak To Muslims Around The World

The Muslim festival of Eid al-Fitr began at sundown last night. President Biden and First Lady Jill Biden issued a Statement (full text) yesterday extending warmest wishes and Eid Mubarak to those celebrating the end of Ramadan. The Statement says in part:

This year, as we mark Eid al-Fitr, we hold in our hearts the millions of displaced persons and refugees around the globe who are spending this sacred holiday separated from their families and unsure of their future, but still hoping for a brighter tomorrow. As a nation we must always keep faith with those seeking a better life, and uphold our commitment to serving as a beacon of hope for oppressed people around the world. And, Muslims across the United States celebrate Eid, let us renew our dedication to our foundational commitment to respecting all faiths and beliefs.

The President and First Lady later today will host a reception in the East Room to celebrate Eid.

UPDATE: Here are the President's remarks at the White House Eid reception.

Sunday, May 01, 2022

Oklahoma Legislature Passes Fetal Heartbeat Abortion Law

The Oklahoma legislature on Thursday gave final approval to SB1503 (full text), a Fetal Heartbeat Abortion Law modeled after the Texas statute. The law bars abortions once a physician detects a fetal heartbeat (usually around 6 weeks in a pregnancy) except in cases of medical emergency. The ban is enforceable only through private civil actions for statutory damages of not less than $10,000 brought by any person other than a public official. An action may be brought against anyone who performs, induces, aids or abets an abortion (other than the woman on whom an abortion was performed). Once damages have been awarded in one action, a court may not award relief for the same abortion in subsequent actions. A court may not award attorney's fees to a defendant in actions under the law, and actions under the law are not subject to the Oklahoma Religious Freedom Act. Governor Kevin Stitt is expected to quickly sign the bill into law.

On Thursday, even though the law had not yet been signed by the governor, suit was filed in the Oklahoma Supreme Court challenging the law. The complaint (full text) in Oklahoma Call for Reproductive Justice v. State of Oklahoma, (OK Sup. Ct., filed 4/28/2022), which also names as defendants the clerk of courts in every Oklahoma county, alleges that the law violates ten separate provisions of the Oklahoma Constitution. Vox reports on developments.

Friday, April 29, 2022

President Declares May "Jewish American Heritage Month"

President Biden today issued a Proclamation (full text) declaring May 2022 as Jewish American Heritage Month. The Proclamation reads in part:

The Jewish American story, and the story of our Nation as a whole, is fueled by faith, resilience, and hope. It is a story defined by a firm belief in possibilities, the resolve to make real the promise of America for all Americans, and a commitment to perfecting our Union, heeding the timeless words of Rabbi Tarfon, the first-century scholar who taught “It is not your duty to finish the work, but neither are you at liberty to neglect it.”

An interesting sidelight: Typically Presidential Proclamations end with the date of the Proclamation. The year is routinely set out, for example, as: "in the year of our Lord two thousand twenty-two, and of the Independence of the United States of America the two hundred and forty-sixth." The Jewish American Heritage Month Proclamation omits the phrase "in the year of our Lord, recognizing the Christian nature of that reference.

Oklahoma Bans Nonbinary Designations On Birth Certificates

On Tuesday, Oklahoma Governor Kevin Stitt signed SB 1100 (full text) which provides:

... [T]he biological sex designation on a certificate of birth issued under this section shall be either male or female and shall not be nonbinary or any symbol representing a nonbinary designation including but not limited to the letter “X”.

Fatherly reports on the new law.

11th Circuit Hears Oral Arguments In City Prayer Vigil Case

Yesterday, the U.S. 11th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Rojas v. City of Ocala, Florida. In the case, , a Florida federal district court held that the City of Ocala, Florida and its police chief violated the Establishment Clause when they organized and promoted a prayer vigil in response to a shooting spree plaguing the city. (See prior posting.) Fox35 reports on the case ahead of the oral arguments.

Free Exercise Challenge To Washington Vaccine Mandate Is Dismissed

In Wise v. Inslee, (ED WA, April 27, 2022), a Washington federal district court dismissed various challenges to Washington state's vaccine mandate for certain state employees, including free exercise, Title VII religious discrimination, and Establishment Clause claims. The court said in part:

... [T]he State clearly has a legitimate government interest in preventing the spread of COVID-19, an interest that has been endorsed by the Ninth Circuit.... Additionally, the Proclamation is rationally related to that interest because it is based on overwhelming evidence that the vaccines are safe and effective, and increasing vaccination rates among those employees who come into regular contact with vulnerable populations is a rational action to reduce the spread of COVID-19. Accordingly, the Proclamation easily survives federal constitutional scrutiny....

More Context Needed In Student's Suit Over Right To Wear Shirt With Anti-Gay Bible Verse

In B.A.P. v. Overton County Board of Education, (MD TN, April 27, 2022), a Tennessee federal district court refused to dismiss a suit challenging on free exercise and free speech grounds a school's disciplining of a student who refused to take off a shirt that read: "homosexuality is a sin - 1 Corinthians 6:9-10." The court said in part:

"[T]o justify prohibition of a particular expression of opinion" under Tinker, a school must show that it acted out of '"more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,' but rather, 'that the school authorities had reason to anticipate that the [student’s expression] would substantially interfere with the work of the school or would impinge upon the rights of other students.'"...

Here, an adequate analysis of B.A.P.’s First Amendment claims ... requires a more developed record than is available on a motion to dismiss. ....

Plaintiffs allege that Henson removed B.A.P. from class due to the message on her shirt, Melton did not allow her to return to class because of this message, and both Melton and Henson told B.A.P. she could not wear the shirt to school going forward. The Amended Complaint does not, however, supply specific facts and context about Livingston Academy and the surrounding community at the time Melton and Henson took these actions. Without this context, the Court cannot determine whether Melton and Henson reasonably forecasted that the message on B.A.P.’s shirt would cause substantial disruption or interference with the rights of other students. Accordingly, B.A.P.’s First Amendment claims against Melton and Henson will not be dismissed for failure to state a claim.

Thursday, April 28, 2022

Parents Sue Over School's Nondisclosure Of Children's Gender Identity Issues

Suit was filed in a Massachusetts federal district court earlier this month by four parents challenging a school policy to not notify parents of their child’s gender nonconformity or transgender status unless the child consents. The complaint in Foote v. Ludlow School Committee, (D MA, filed 4/12/2022), (full text) alleges that the policy violates parental rights of all the plaintiffs, as well as the free exercise rights of certain of the plaintiffs. It alleges in part:

158. Plaintiffs have sincerely held religious beliefs that all people are to be treated with respect and compassion, and that respect and compassion do not include misrepresenting an individual’s natural created identity as either a male or a female.

159. Plaintiffs have sincerely held religious beliefs that individuals are to speak the truth, including speaking the truth regarding matters of sexual identity as a male or female.

160. Defendants’ actions in excluding Plaintiffs Feliciano and Salmeron from decision making regarding their children’s sexual and gender identity target the Plaintiffs’ beliefs regarding the created order, human nature, sexuality, gender, ethics, and morality which constitute central components of their sincerely held religious beliefs.

Christian Post reports on the lawsuit.

Suit Challenges Maine's Ban On Sunday Hunting

Suit was filed yesterday in a Maine state trial court challenging Maine's ban on Sunday hunting. The complaint (full text) in Parker v. Camuso, (ME Super. Ct., filed 4/27/2022), contends that the Right To Food Amendment to Maine's constitution (Art. I, Sec. 25) adopted in 2021 invalidates the state's ban on Sunday hunting as applied to individuals who hunt on Sundays to harvest food for themselves and their families. The complaint calls the Sunday hunting ban "a historical and religious anachronism." Portland Press Herald reports on the lawsuit.

1st Circuit: Employees With Religious Objection To Vaccine Mandate Not Entitled To Injunction

In Together Employees v. Mass General Brigham, Inc., (1st Cir., April 27, 2022), the U.S. 1st Circuit Court of Appeals denied a preliminary injunction to hospital employees who were denied religious exemptions from the hospital's COVID vaccine mandate. The court held that the employees failed to show the irreparable injury necessary to obtain injunctive relief, saying in part:

It is black-letter law that "money damages ordinarily provide an appropriate remedy" for unlawful termination of employment.

European Court Says Switzerland Wrongly Denied Asylum To Pakistani Convert To Christianity

In M.A.M. v. Suisse, (ECHR, April 26, 2022) [decision in French], the European Court of Human Rights ruled in favor of a Pakistani asylee in Switzerland. The Court's English language press release summarizes the case and its holding:

M.A.M. is a Pakistani national who had converted from Islam to Christianity while in Switzerland, where he had arrived in 2015 and where his asylum request had been rejected.

[T]he ... Court ... held, unanimously, that if the decision to expel the applicant to Pakistan were to be executed there would be a violation of Article 2 (right to life) and Article 3 (prohibition of torture, inhuman or degrading treatment) of the European Convention on Human Rights, in the absence of an assessment of the risk to which the applicant was exposed on account of the overall situation of Christian converts in Pakistan and of his own personal situation. The Court ruled that the assessment by the Swiss authorities of the risk facing the applicant on account of his conversion to Christianity if he were expelled to Pakistan had been insufficient to uphold the rejection of his asylum request....

[Thanks to @sacrareleges for the lead.]

Wednesday, April 27, 2022

California Court Says "Get" Denial Can Be Basis For Denying Husband Child Custody

The Forward last week reported on a February 7 decision by a California trial court which interpreted 2020 amendments to the state's Family Code (Senate Bill 1141) as allowing a family court to use a husband's refusal to give his wife a Jewish bill of divorce (a "get") as the basis for awarding the wife child custody. Senate Bill 1141 adds "coercive control", defined as "a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty," as the basis for ex parte orders. That, in turn, creates a rebuttable presumption that awarding child custody to the person exerting coercive control is not in the best interests of the child. The court ruled that denial of a get amounted to coercive control. The full text of the court's decision does not appear to be available online.

CAIR Issues Report On Structural Islamophobia

Yesterday, the Council on American-Islamic Relations (CAIR) released a report titled Still Suspect: The Impact of Structural Islamophobia (full text).The Executive Summary says in part:

The title of this report is Still Suspect: The Impact of Structural Islamophobia. The word structural is significant in the understanding that Islamophobia has seeped into every part of our society. It has made its way into government institutions and the public sphere through laws and policies, political rhetoric, and other manifestations. For example, in 2021, CAIR received a total of 6,720 complaints nationwide involving a range of issues including immigration and travel, discrimination, law enforcement and government overreach, hate and bias incidents, incarceree rights, school incidents, and anti-BDS/free speech. These complaints clearly indicate that government discrimination and bias continue to have a disproportionate effect on American Muslims and further demonstrate that our communities continue to be viewed with suspicion.

CLS Members Sue University Of Idaho Over No-Contact Orders

Three members of the Christian Legal Society at the University of Idaho filed suit against University administrators on Monday contending that the University's Title IX Policy and Conduct and Discipline Policies, facially and as applied to them violate their free speech, free exercise and due process rights. The complaint (full text) in Perlot v. Green, (D ID, filed 4/25/2022) alleges that the University's Office of Civil Rights and Investigations issued "no contact" orders against the three students barring the from having contact with another student with whom they had had a discussion about Christian views on sexuality and marriage. ADF issued a press release announcing the filing of the lawsuit.

Reports On 2021 Antisemitic Incidents Released

The ADL yesterday released its annual Audit of Antisemitic Incidents 2021 (full text). According to the report's Executive Summary:

In 2021, ADL tabulated 2,717 antisemitic incidents throughout the United States. This is a 34% increase from the 2,026 incidents tabulated in 2020 and the highest number on record since ADL began tracking antisemitic incidents in 1979.

Of the 2,717 incidents recorded in 2021, 1,776 were cases of harassment, a 43% increase from 1,242 in 2020, and 853 incidents were cases of vandalism, a 14% increase from 751 in 2020. The 88 incidents of antisemitic assault (a 167% increase from 33 in 2020), involved 131 victims; none of the assaults were deadly.

Meanwhile, last week B'nai B'rith Canada released its 2021 Audit of Antisemitic Incidents in Canada (full text). According to the report:

The 2021 numbers show an increase in antisemitic incidents, with an overall jump of 7.2% in comparison to 2020.

There were some changes in patterns. Covid quarantine restrictions including lockdowns appear to have caused the number of cases of in-person harassment to decline significantly. These cases dropped from 620 in 2020 to 367 in 2021 or a 40.8% decline. However, that lack of direct contact may have been a factor in the jump in cases of online hate.

In fact, online hate has become the preferred method of targeting Jews. B’nai Brith logged 2,093 incidents of online hate, or an increase of 12.3% over the 2020 figures of 1,863 cases....

According to the report, there were 75 incidents of antisemitic violence in 2021, compared to only 9 in 2020. Jewish News Syndicate reports on the Canadian audit.

Tuesday, April 26, 2022

New Arizona Law Protects Right To Clergy Visits In Health Care Institutions

Arizona Governor Doug Ducey yesterday signed HB 2449 (full text) which protects the right of residents of assisted living, nursing and hospice facilities to receive visits by clergy even during states of emergency, as well as when a resident's death is imminent. ADF issued a press release on the bill.

USCIRF Issues 2022 Annual Report

Yesterday, the U.S. Commission on International Religious Freedom released its 2022 Annual Report (full text) which documents developments during 2021. USCIRF issued a press release summarizing the 100-page report, saying in part:

USCIRF recommends 15 countries to the State Department for designation as “countries of particular concern” (CPCs) because their governments engage in or tolerate “systematic, ongoing, and egregious violations.” These include 10 that the State Department designated as CPCs in November 2021: Burma, China, Eritrea, Iran, North Korea, Pakistan, Russia, Saudi Arabia, Tajikistan, and Turkmenistan—as well as five others: Afghanistan, India, Nigeria, Syria, and Vietnam. For the first time ever, the State Department designated Russia as a CPC in 2021, which USCIRF had been recommending since 2017. Regrettably, the State Department removed Nigeria as a CPC....

The ... Report also recommends 12 countries for placement on the State Department’s Special Watch List (SWL) based on their governments’ perpetration or toleration of severe violations. These include three that the State Department placed on that list in November 2021: Algeria, Cuba, and Nicaragua—as well as nine others: Azerbaijan, CAR [Central African Republic], Egypt, Indonesia, Iraq, Kazakhstan, Malaysia, Turkey, and Uzbekistan....

The 2022 Annual Report further recommends to the State Department seven non-state actors for redesignation as “entities of particular concern” ... for systematic, ongoing, egregious violations...: al-Shabaab, Boko Haram, the Houthis, Hay’at Tahrir al-Sham ..., Islamic State in the Greater Sahara ..., Islamic State in West Africa Province ..., and Jamaat Nasr al-Islam wal Muslimin....

... The report also highlights [other] important global developments and trends related to religious freedom.... These include: the COVID-19 pandemic and religious freedom, blasphemy and hate speech law enforcement, transnational repression, religious intolerance in Europe, deteriorating religious freedom conditions in South Asia, and political upheaval that raises religious freedom concerns.

Waiver In Plea Agreement Precludes Appeal Of Ban On Possessing Antisemitic Material

In United States v. Holzer, (10th Cir., April 25, 2022), the U.S. 10th Circuit Court of Appeals held that the appellate waiver provision in defendant's plea agreement precludes him from appealing Special Condition Nine of his supervised release which he contends infringes his freedom of religion, thought and expression. The court explains:

Defendant Richard Holzer was arrested and criminally charged after federal undercover agents determined that Holzer had taken substantial steps towards bombing a synagogue in Pueblo, Colorado. Holzer subsequently pleaded guilty, pursuant to a written plea agreement, to one count of intentionally attempting to obstruct persons in the enjoyment of their free exercise of religious beliefs through force, in violation of 18 U.S.C. §§ 247(a)(2) and (d)(3), and one count of maliciously attempting to damage and destroy, by means of fire and explosives, a synagogue, in violation of 18 U.S.C. § 844(i). The district court sentenced Holzer to a term of imprisonment of 235 months, to be followed by a fifteen-year term of supervised release. The district court also ordered Holzer to comply with eleven special conditions of supervised release, including Special Condition Nine, that prohibits him from acquiring, possessing, or using any material depicting support for or association with antisemitism or white supremacy.

Marine With Religious Objections To COVID Vaccine Is Denied Preliminary Injunction

In Short v. Berger, (D AZ, April 22, 2022), an Arizona federal district court refused to grant a preliminary injunction to a Marine Corps major who was denied a religious exemption from the military's COVID vaccine mandate. Plaintiff is serving as a staff judge advocate. According to the court:

To date, the USMC has received over 3,600 requests for a religious exemption from the vaccine requirement but has approved only seven of those requests. It appears that, in all seven cases, the applicant was already in the process of separating from the Marines at the time the request was granted. In contrast, the USMC has approved over 900 medical exemptions, including at least 20 permanent medical exemptions.

The court went on:

In his motion for preliminary injunction, Major Short conspicuously does not assert that separation, loss of training and promotion opportunities, loss of pay, and/or a less-than-honorable discharge constitute irreparable injuries.... Instead, the sole theory of irreparable harm articulated in Major Short’s motion is that “being forced to choose between receiving the injection contrary to his religious beliefs, or defying an order, is itself a denial of free exercise, and directly causes irreparable harm.” ... [T]he tangible employment-related harms that Major Short may suffer ... do not qualify as irreparable under Ninth Circuit law because they can be remedied through retrospective relief....

As for Major Short’s coercion theory, the Court acknowledges that, in many of the recent military vaccine challenges arising outside the Ninth Circuit, courts have suggested that a service member suffers an irreparable injury the moment he is forced to choose between following his religious beliefs and following an order to be vaccinated.... But however persuasive those cases might otherwise be, this Court must follow Ninth Circuit law and the Ninth Circuit has not adopted—and, indeed, appears to have rejected—this theory of irreparable harm....

The court also concluded that beyond the irreparable injury issue, there was uncertainty as to whether Plaintiff would succeed on his RFRA claim.

Monday, April 25, 2022

Prayer At The 50-Yard Line: SCOTUS Hears Football Coach's Case This Morning

This morning, the U.S. Supreme Court will hear oral arguments in Kennedy v. Bremerton School District. In the case, the U.S. 9th Circuit Court of Appeals upheld a high school's actions against a football coach who insisted on praying at the 50-yard line immediately after football games. The coach was placed on paid administrative leave and given negative performance reviews. He did not reapply to coach the following year. A divided 9th Circuit denied en banc review. (See prior posting.) Amy Howe at SCOTUSblog previews the case, saying in part:

... Kennedy and the school district disagree not only about the legal issues and their implications, but also about many of the facts, including exactly why Kennedy lost his job. Kennedy says he was fired for briefly and privately praying at midfield; Laser and the school district counter that he was suspended for “refusing to stop holding public prayers at the 50-yard line,” which created both pressure for students to join him and “genuine safety concerns for students on the fields because of the spectacle that ensued from his media outreach on praying.”

The SCOTUSblog case page has links to the filings in the case, including the dozens of amicus briefs that have been submitted. Live audio of the oral arguments, which begin at 10:00 AM, will be available at this link. When the transcript and recording of the oral arguments become available later today, I will update this post with links to them.

UPDATE Here are links to the transcript and audio of the oral arguments.

Sunday, April 24, 2022

Plaintiff In Abuse Case May Discover Psychological Report In Priest's Personnel File

In Harmon v. Diocese of Albany, (NY App. Div., April 21, 2022), a New York state appellate court upheld a trial court's discovery order in a case alleging sexual abuse of plaintiff by a Catholic priest in the 1980's. The trial court ordered the Diocese to turn over to plaintiff a memo, a report and correspondence in the priest's personnel file from a psychologist who had been retained by the the Bishop to determine whether it would be appropriate for the priest to resume his ministry and the risk of recidivism. The court also upheld the trial court's order requiring disclosure to plaintiff of the personnel files of 48 former priests whose names are on the Diocese's list of credibly accused clergy. Albany Times-Union reports on the decision.

Denial Of Permission To Build Buddhist Meditation Center Did Not Violate RLUIPA

In Thai Meditation Association of Alabama, Inc. v. City of Mobile, Alabama, an Alabama federal district court dismissed a RLUIPA and 1st Amendment challenge to the city's denial of permission to build a meditation center and related structures in an area zoned residential. Plaintiff is a Buddhist religious organization. The court said in part:

The Court finds Plaintiffs have shown, for the purposes of summary judgment, the City’s decision effectively deprives them of any viable means by which to engage in protected religious exercise, but the application of the City’s Zoning Ordinance generally does not since the meditation center could be located at a commercially zoned property as of right....

... Plaintiffs have not demonstrated the City’s zoning decisions substantially burdened their religious exercise, and even if Plaintiffs’ religious exercise was substantially burdened by the denial of their Applications, the Court finds the decision was the least restrictive means to further the City’s compelling interest in its Zoning Ordinance...

Thursday, April 21, 2022

Company Is Not "State Actor" When It Complies With Federal Vaccine Mandate

In Ciraci v. J. M. Smucker Co., (ND OH, April 20, 2022), an Ohio federal district court dismissed a suit by employees of a food manufacturer who claim that their 1st Amendment free exercise rights were infringed when their employer denied them religious exemptions and required them to comply with the Presidential Executive Order mandating COVID vaccinations for employees of federal contractors. The court said in part:

For Plaintiffs to succeed on their Free Exercise Clause ... claim, they need to establish first that Smucker is a state actor....

A private entity is not subject to constitutional constraints except in a few limited circumstances, for example: (1) “when the private entity performs a traditional, exclusive public function;” (2) “when the government compels the private entity to take a particular action;” (3) “when the government acts jointly with the private entity.”...

Here, Plaintiffs allege that Defendant is a federal actor because it acted pursuant to “policies, practices, customs, and procedures created, adopted, and enforced under color of federal law.” Without more facts, this allegation is conclusory and does not plead enough facts to place it in any of the exceptions listed above.

Court Enjoins Autopsy In Suit By Inmate Facing Execution

In Smith v. Li, (MD TN, April 20, 2022), a Tennessee federal district court, in a RLUIPA suit by an inmate about to be executed, enjoined the state's medical examiner from performing an autopsy after the execution, collecting fluids postmortem, or performing any other procedure violating plaintiff's the body's physical integrity after death. The court said in part:

It may be that the medical community does not consider the collection of fluid samples to constitute an “autopsy.” That fact, though, has no bearing on either the sincerity or the content of Smith’s religious beliefs, which do not depend on any such distinction. It is not the place of Dr. Li, the government, or the court to try to convince Smith that he should not consider the postmortem collection of his bodily fluids to be an impermissible intrusion on his religiously mandated bodily integrity. If Smith does sincerely believe that—and the court finds that he does— then Dr. Li’s stated intention to violate his beliefs implicates RLUIPA, whether Dr. Li finds Smith’s theological explanation persuasive or not....

Under these circumstances, where the decision whether to conduct an autopsy is left to the discretion of the county medical examiner and, alternatively, to that of the state chief medical examiner or the district attorney general, it is difficult to see how the government could show that conducting an autopsy is necessary to fulfill a compelling government interest. If the interest were truly compelling, the statute presumably would mandate it.

Baseball Team Scout Sues For Religious Exemption From Team's COVID Vaccine Mandate

Yesterday suit was filed in a D.C. federal district court by a scout for the Washington Nationals baseball team who was denied an accommodation for his religious objections to the baseball club's COVID vaccine mandate. The complaint (full text) in Gallo v. Washington Nationals Baseball Club, LLC, (D DC, filed 4/20/2022), claims discrimination on the basis of religion and disability. Thomas More Society issued a press release announcing the filing of the lawsuit.

Arizona Passes New Protections For Religious Organizations

The Arizona legislature this week gave final passage to HB 2507 (full text) which is primarily aimed at preventing state and local governments from closing down religious organizations in future states of emergency. However it also includes this broader provision:

State government or any private person who sues under or attempts to enforce a law, rule or regulation that is adopted by the state or a political subdivision of this state may not take any discriminatory action against a religious organization on the basis that the organization ... engages in the exercise of religion as protected under the First Amendment....

AZ Mirror reports on the bill.

Wednesday, April 20, 2022

British Tribunal Rejects Complaint Of Muslim Employee Over Use Of "Allahu Akbar" In Security Test

In Ali v Heathrow Express Operating Company Ltd., (EAT, April 7, 2022), the United Kingdom Employment Appeal Tribunal upheld an Employment Tribunal's dismissal of an Equality Act religious harassment complaint brought by a Muslim employee of the Heathrow Express train service. At issue was the conduct of a Heathrow Airport employee who duties involved carrying out security checks. According to the Tribunal:

[T]his involved creating and leaving suspicious objects to test how security officers responded to them. In August 2017 it carried out a test using a bag containing a box, some electric cabling and, visible at the top, a piece of paper with the words “Allahu Akbar” written in Arabic.

The Tribunal below held:

We conclude that in the circumstances that existed at the time it was not reasonable for the claimant to take offence at this incident. He should have understood that in adding this phrase Mr Rutherford’s team were not seeking to associate Islam with terrorism - instead they were seeking to produce a suspicious item based on possible threats to the airport.

In affirming the Employment Tribunal, the appellate court said in part:

It is not said, on appeal, that the tribunal should have concluded that these words had been chosen gratuitously with the deliberate purpose of causing upset....

We understand that a strand of the claimant’s case was that the use of this phrase was particularly insensitive, and offensive to him, not merely because it referenced Islam, but because of the sacred nature and significance of this particular phrase in religious observance. While we do not accept that it was perverse not to regard the conduct of the second respondent as amounting in itself to the stereotyping of Muslims generally as terrorists or terrorist sympathisers, we do understand that he also says that, because such stereotyping is a significant and serious blight on the lives of Muslims, the use of these words in this context was particularly charged for him, more than, say, the use of an animal-rights slogan co-opted by some terrorists would be for a vegan. However, we cannot say that these features point to the conclusion that the tribunal could only properly have found that the claimant’s perception that the conduct had the effects on him of the kind referred to in section 26(1)(b) was a reasonable one.

Law & Religion UK reports on the decision.

New Jersey Diocese Settles Abuse Claims Of 300 Survivors For $87.5M

The Catholic Diocese of Camden, New Jersey announced yesterday:

The Diocese ... and the Official Committee of Tort Claimant Creditors ... which represents the interests of approximately 300 survivors of sexual abuse, have reached a settlement which will provide for the establishment of a substantial trust to compensate survivors of sexual abuse within the Diocese. The trust will be funded with $87.5 million from the Diocese and related Catholic entities over a four-year period. The settlement also includes maintaining or enhancing the protocols for the protection of children, which were first implemented by the Diocese in 2002. The settlement remains subject to Bankruptcy Court approval.

AP reports on the settlement.

Tuesday, April 19, 2022

Kansas Governor Vetoes Transgender Athlete Ban

The Kansas City Star reports that on Friday, Kansas Governor Laura Kelley vetoed Senate Bill 160 which banned transgender women from competing in women's sports. The ban would have applied to interscholastic, intercollegiate, intramural and club athletic teams or sports sponsored by a public elementary or secondary school or a postsecondary educational institution, and to teams that compete against these schools. In her veto message, Kelley said in part:

We all want a fair and safe place for our kids to play and compete. However, this bill didn’t come from the experts at our schools, our athletes, or the Kansas State High School Activities Association. It came from politicians trying to score political points.

Supreme Court Refuses Interim Relief In Airman's Religious Challenge To COVID Vaccine Mandate

Yesterday, the U.S. Supreme Court by a vote of 6-3 refused to grant an injunction pending appeal in Dunn v. Austin, (Docket No. 21A599, April 18, 2022). Justices Thomas, Alito and Gorsuch would have granted relief. At issue was a suit by an Air Force Reserve officer who has religious objections to the COVID vaccine. His request for a religious exemption from the military's vaccine mandate was denied. The history is explained in the officer's Emergency Application for Injunction Pending Appeal:

[T]he district court denied a preliminary injunction and an injunction pending appeal. While the motion for a preliminary injunction was pending, respondents removed applicant from his command; he does not seek reinstatement to that post, but seeks only protection against further punishment, including a discharge, because of his religious beliefs. After entering interim relief, the United States Court of Appeals for the Ninth Circuit denied an injunction pending appeal in a one-page order over a dissent by Judge Bade.

(Full text of district court's ruling and the 9th Circuit's decision.) New York Times reports on the Supreme Court's ruling.

Monday, April 18, 2022

Sunday, April 17, 2022

Biden Releases Statement On Easter

President Biden earlier today released a Statement on Easter (full text) wishing a Happy Easter to all. The statement reads in part:

On this day and each day, we pray for ... peace, freedom, and the basic dignity and respect for all of God’s children. As we look ahead with His blessing, may we share a common hope for the future, reaffirm love and compassion for one another, and cherish the blessing of the dawn of new possibilities.

Friday, April 15, 2022

White House Issues Two Holiday Statements

The White House this morning issued two holiday statements. It announced (full text) the theme and activities for for the 2022 Easter Egg Roll to be held on April 18, saying in part:

The White House announced today the full program of activities for the 2022 White House Easter Egg Roll, a tradition dating back to 1878. A teacher for more than 30 years, First Lady Jill Biden created this year’s event theme, “EGGucation!,” with the South Lawn to be transformed into a school community, full of fun educational activities for children to enjoy.

President Biden also issued a Statement on Passover (full text), saying in part:

This Passover, we hold in our hearts the people of Ukraine and those around the world whose heroic stand against tyranny inspires us all. The enduring spirit of this holiday continues to teach us that with faith, the driest desert can be crossed, the mightiest sea can be split, and hope never stops marching towards the promised land.

Second Gentleman Emhoff Is At Center Of White House Passover Celebrations

The Jewish festival of Passover begins at sundown this evening. Yesterday, the White House held a virtual Seder which was streamed live and is available on YouTube. Labelled "The People's Seder," Jewish Americans from around the country spoke or made presentations. The Seder was hosted by Second Gentleman Doug Emhoff and was emceed by Chanan Y. Weissman, the White House’s liaison to the Jewish community. Tonight, Vice President Harris and Emhoff, who is Jewish, will host a Seder at the Vice President's official residence. According to CNN:

Harris told Israeli President Isaac Herzog during their phone call Thursday that she would hold a Seder in person at the Naval Observatory, according to a White House official.

The official said Harris and Emhoff will be joined by Jewish members of their staff and their loved ones.

$400,000 Settlement In Favor Of Prof Who Refused To Recognize Student's Gender Transition

After the U.S. 6th Circuit Court of Appeals in 2021 held that Shawnee State University violated the free speech and free exercise rights of a philosophy professor when the school insisted that Professor Nick Meriwether address a transgender student by her preferred gender pronoun, a settlement has been reached in the case. According to a press release from ADF, the university agreed to pay $400,000 in damages plus attorneys' fees. Also, according to the press release:

As part of the settlement, the university has agreed that Meriwether has the right to choose when to use, or avoid using, titles or pronouns when referring to or addressing students. Significantly, the university agreed Meriwether will never be mandated to use pronouns, including if a student requests pronouns that conflict with his or her biological sex.

A stipulation of voluntary dismissal was filed yesterday in Meriwether v. Trustees of Shawnee State University, (SD OH filed 4/14/2022).

Thursday, April 14, 2022

Kentucky Legislature Overrides Veto Of Ban On Transgender Girls On Middle and High School Girl's Teams

Last week, Kentucky Governor Andy Beshear vetoed (veto message) SB 83 (full text) which bars transgender girls in grades 6 though 12 from competing on girls' athletic teams or activities in Kentucky public schools. As reported by the Courier Journal, yesterday the Kentucky legislature overrode the governor's veto.

State Department Issues 2021 Report On Human Rights Practices Around The World

On Tuesday, the State Department released the 2021 Country Reports on Human Rights Practices. This year's reports cover 198 countries and territories. While these reports include information on the status of religious freedom in the countries surveyed, the State Department also issues a report each year focused specifically in International Religious Freedom. The 2021 Report on International Religious Freedom will be issued later this year.

Wednesday, April 13, 2022

Sikhs Sue Marine Corps For Religious Accommodation

On Monday, suit was filed against the Marine Corps and the Defense Department by four Sikh recruits who are seeking an accommodation that would allow them to wear religious beards and turbans while serving in the Marines. The complaint (full text) in Toor v. Berger, (D DC, filed 4/11/2022), claims that the Marine Corps treatment of plaintiffs violates their rights under RFRA as well as the 1st and 5th Amendments. The Sikh Coalition issued a press release announcing the filing of the lawsuit.

Tuesday, April 12, 2022

Plaintiff's Ban From Space Center Upheld

In Duvall v. United States Space and Rocket Center, (ND AL, April 11, 2022) an Alabama federal district court dismissed claims that plaintiff's free exercise, free speech and freedom of assembly rights were violated when he was banned from the Space Center's property. The ban was imposed after plaintiff was trying at the Center "to bust open Seal No. 7 of the Holy Bible.”

New Alabama Ban On Gender Transition Procedures For Minors Is Challenged

Suit was filed last week in an Alabama federal district court challenging SB 184, the Alabama Vulnerable Child Compassion and Protection Act (full text), which prohibits medical procedures or the prescription of drugs for a minor child to alter the child's gender or delay puberty. The law was given final passage by the legislature on April 7 and signed by the governor on the next day. Parents of two transgender teenagers and two physicians filed suit 3 days later. The complaint (full text) in Ladinsky v. Ivey, (ND AL, filed 4/11/2022), contends that the law is pre-empted by a provision in the Affordable Care Act, that the law violates equal protection, parents rights to direct medical care of their children, and is void for vagueness. Courthouse News Service reports on the lawsuit.

Monday, April 11, 2022

Sunday, April 10, 2022

Deputy Sheriff May Be Liable For Failing To Stop Fellow Officer From Carrying Out Coercive Baptism

In Riley v. Hamilton County Government, (ED TN, April 7, 2022), a Tennessee federal district court refused to dismiss an Establishment Clause, as well as a 4th Amendment, claim against Deputy Sheriff Jacob Goforth for his role in Deputy Sheriff Daniel Wilkey's baptism of Shandle Riley. Wilkey had pulled Riley over for a traffic stop and discovered that she had marijuana in her car. After searching Riley and her car, Wilkey began to talk with Riley about religion, asking her if she had been baptized. According to the court:

Wilkey told her “God [was] talking to him” and assured her that, if she got baptized, he would only write her a citation and she would be free to go about her business.... According to Riley, Wilkey also indicated that he would speak at court on her behalf if she agreed.... Riley decided to go along with this plan because she“[did not] want to go to jail.” ... She also “thought [Wilkey] was a God-fearing, church-like man who saw something . . . in [her], that God talked to him,” and testified that “it felt good to believe that for a minute.”

Wilkey asked another deputy on duty, Jacob Goforth, to witness his baptism of Riley. According to the court:

any reasonable officer would have recognized that coerced participation in a Christian baptism—an overtly religious act with no secular purpose—was unlawful.... There are genuine disputes of material fact concerning whether Riley was coerced into the baptism, whether she would have faced harsher penalties had she refused to be baptized, and whether Goforth should have known that Riley was being coerced. This is enough to preclude summary judgment on this issue....

Goforth had fair warning that he had a duty to intervene to stop constitutional violations of this nature. And a reasonable jury could conclude that Goforth had both notice of the violation and an opportunity to stop the baptism. Accordingly, Goforth is not entitled to summary judgment on Riley’s First Amendment claim....

The court also held that that Goforth was not entitled to qualified immunity on Riley's claim of an unreasonable seizure.

Friday, April 08, 2022

5th Circuit Hears Oral Arguments In Texas Courtroom Prayer Case

On Tuesday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Freedom From Religion Foundation v. Mack. (Audio of full oral arguments). In the case, a Texas federal district court held that a program devised by a Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain violates the Establishment Clause. (See prior posting.) Last July, the 5th Circuit granted a stay pending appeal of the Texas district court's declaratory judgment order. (See prior posting.)

Oklahoma Passes Bill Outlawing Almost All Abortions

On Wednesday, the Oklahoma legislature sent to the governor for his signature, SB612 (full text). The bill provides in part:

1. Notwithstanding any other provision of law, a person shall not purposely perform or attempt to perform an abortion except to save the life of a pregnant woman in a medical emergency.

2. A person convicted of performing or attempting to perform an abortion shall be guilty of a felony punishable by a fine not to exceed... $100,000.00 ... or by confinement ... for a term not to exceed ten ... years, or by such fine and imprisonment.

3. This section does not: a. authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child....

NPR reports on the legislation.

Alabama Legislature Passes Bill On Bathrooms and LGBT Instruction In Public Schools

Yesterday the Alabama legislature gave final passage to, and sent to the governor for her signature, HB322 (full text). The bill, with certain exceptions, requires:

A public K-12 school shall require every multiple occupancy restroom or changing area designated for student use to be used by individuals based on their biological sex.

The bill also provides:

... [I]ndividuals providing classroom instruction to students in kindergarten through the fifth grade at a public K-12 school shall not engage in classroom discussion or provide classroom instruction regarding sexual orientation or gender identity in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards.

Two Suits Challenge Michigan's 1931 Abortion Ban

Planned Parenthood and a Michigan abortion provider filed suit yesterday in the Michigan Court of Claims seeking to invalidate Michigan's 1931 statute that outlaws all abortions, except those necessary to save the life of the pregnant woman. The complaint (full text) in Planned Parenthood of Michigan v. Attorney General of the State of Michigan, (Ct.Cl., filed April 7, 2022), contends that the statute violates various provisions of the Michigan Constitution. ACLU issued a press release announcing the lawsuit. Even though Attorney General Dana Nessel is named as defendant in the lawsuit, she issued a statement saying in part:

I will not use the resources of my office to defend Michigan's 1931 statute criminalizing abortion.

WMUK expands on Nessel's position:

She says her office would not defend the abortion ban using a process that assigns teams of attorneys to argue both sides of a legal controversy. Nessel says she would only do that if ordered to by a court. “I will not enforce it and neither will I defend it,” she said. “I will take no part in driving women back into the dark ages and into the back alleys.”

Nessel says she will leave it up local prosecutors to defend their ability to enforce an abortion ban in their counties if they want to do that. And the Democratic attorney general says she would not object if Republicans in the Legislature want to join the case and take on the role of defending the state’s abortion ban.

Meanwhile, yesterday Michigan Governor Gretchen Whitmer filed another lawsuit challenging the 1931 abortion ban. A press release from her office, describing the lawsuit, says in part:

Today, Governor Gretchen Whitmer filed a lawsuit and used her executive authority to ask the Michigan Supreme Court to immediately resolve whether Michigan’s Constitution protects the right to abortion....

The lawsuit asks the court to recognize a constitutional right to an abortion under the Due Process Clause of the Michigan Constitution. It also asks the court to stop enforcement of the 1931 Michigan abortion ban. The abortion ban violates Michigan’s due process clause, which provides a right to privacy and bodily autonomy that is violated by the state’s near-total criminal ban of abortion. It also violates Michigan’s Equal Protection Clause due to the way the ban denies women equal rights because the law was adopted to reinforce antiquated notions of the proper role for women in society.

Seventh Day Adventist Can Proceed With Title VII Suit

In Weston v. Sears, (SD OH, April 5, 2022), an Ohio federal magistrate judge recommended that plaintiff, a Seventh Day Adventist, be permitted to proceed in forma pauperis with her Title VII claim for religious discrimination. She was fired for failing, until after the end of her Sabbath, to return multiple phone calls from her manager. However plaintiff is required to exhaust her administrative remedies by filing charges with the EEOC or her state agency.

Thursday, April 07, 2022

European Court Says Jehovah's Witnesses Were Wrongly Denied Tax Exemption

In Affaire Assemblée chrétienne des Témoins de Jéhovah d’Anderlecht et autres c. Belgique, (ECHR, April 5, 2022), the European Court of Human Rights ruled in favor of a Jehovah's Witnesses congregation in Belgium that was denied a property tax exemption for property they used for religious worship. The regional tax law gave exemptions only to "recognized religions". Jehovah's Witnesses were not recognized. According to the Court's press release:

The Court held that since the tax exemption in question was contingent on prior recognition, governed by rules that did not afford sufficient safeguards against discrimination, the difference in treatment to which the applicant congregations had been subjected had no reasonable and objective justification. It noted, among other points, that recognition was only possible on the initiative of the Minister of Justice and depended thereafter on the purely discretionary decision of the legislature. A system of this kind entailed an inherent risk of arbitrariness, and religious communities could not reasonably be expected, in order to claim entitlement to the tax exemption in issue, to submit to a process that was not based on minimum guarantees of fairness and did not guarantee an objective assessment of their claims.

Preacher's Challenge To Large Group Vigils On Capitol Grounds Fails

In Mahoney v. United States Capitol Police Board, (D DC, April 5, 2022), a D.C. federal district court refused to grant a preliminary injunction to a clergyman who was denied a permit to hold a large prayer vigil on part of the Capitol grounds. Groups of 20 or more were permitted at that location only if sponsored by a member of Congress. The court rejected plaintiff's selective enforcement claim, saying in part:

Members of Congress sponsoring or organizing demonstrations on the Capitol Grounds present “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them.”... Consider the numerous ways in which Members are different from non-Members while on the Capitol Grounds. In such a setting, for instance, the Member is at her workplace, she enjoys private access to many areas that are otherwise restricted, and she is carrying out her unique constitutional duties as a legislator and representative of her constituents. Numerous legal principles recognize this reality and accord Members unique status while on the Capitol Grounds.

The court also found that plaintiff was unlikely to succeed on his freedom of assembly claim.

Wednesday, April 06, 2022

Biden Nominates Kalpana Kotagal For EEOC Commissioner

President Biden yesterday sent to the Senate the nomination of Kalpana Kotagal to be a Member of the 5-member Equal Employment Opportunity, replacing Janet Dhillon whose term is expiring July 1. Kotagal is a partner at Washington, D.C. law firm of Cohen Milstein and is a member of the firm’s Civil Rights & Employment practice group. The EEOC enforces employment discrimination laws, including laws barring religious discrimination in employment.

Kentucky Governor Signs Bill Protecting Houses Of Worship During Emergencies

Yesterday, Kentucky Governor Andy Beshear signed into law House Bill 43 (full text) that prohibits the governor, during a state of emergency, from seizing or condemning "houses of worship, except to the extent that such houses have become unsafe to a degree that would justify condemnation in the absence of a state of emergency." ADF issued a press release announcing the governor's action.

Arizona Legislature Passes Bill To Protect Practices Of Faith-Based Adoption Agencies

On Monday, the Arizona legislature sent to the governor for his signature Senate Bill 1399 (full text) which protects adoption and foster care agencies from adverse action when they provide or decline services on the basis of their religious beliefs. It also provides that the state may consider whether a potential foster or adoptive family shares the same religious beliefs or practices as the child being placed. AZ Mirror has extensive reporting on the views of proponents and opponents of the legislation.

Colorado Governor Signs Reproductive Health Equity Act

On Monday, Colorado Governor Jared Polis signed into law (signing statement) HB 22-1279 (full text), the Reproductive Health Equity Act which provides in part:

(1) Every individual has a fundamental right to make decisions about the individual's reproductive health care, including the fundamental right to use or refuse contraception.

(2) A pregnant individual has a fundamental right to continue pregnancy and give birth or to have an abortion and make decisions how to exercise that right.

(3) A fertilized egg, embryo, or fetus does not have independent or derivative rights under the laws of this state.

CNN reports on developments.

Tuesday, April 05, 2022

Massachusetts Supreme Court Hears Oral Arguments In Clergy Sexual Abuse Case

Yesterday, the Massachusetts Supreme Judicial Court heard oral arguments (webcast of arguments) in Doe v. Roman Catholic Bishop of Springfield. (Docket entries and documents.) The court's summary of the issues involved reads:

Where the trial court denied the defendant's motion to dismiss an action alleging sexual abuse by clergy, whether the defendant may pursue an interlocutory appeal of a ruling that neither charitable immunity nor the First Amendment provides a basis to dismiss the plaintiff's claims.

Courthouse News Service has a lengthy summary of the oral arguments.

Another Court Gives Relief To Military Objectors To COVID Vaccine

Last week, an Ohio federal district court became the latest to grant a preliminary injunction to members of the military who have religious objections to the military's COVID vaccine mandate. In Doster v. Kendall, (SD OH, March 31, 2022), the court said in part:

The Court finds the targeted relief Plaintiffs now seek is "a prohibition against disciplinary or separation measures to these Plaintiffs under RFRA," and thus the Court grants a preliminary injunction of such scope, enjoining Defendants from taking any adverse or punitive action, including but not limited to disciplinary or separation measures, against the Plaintiffs in this case for their refusal to receive the COVID-19 vaccine, while keeping in place the current temporary exemption.

The Court's conclusion is not affected by the Supreme Court's recent decision in Austin v. U.S. Navy Seals 1-26, 2022 WL 882559, or Justice Kavanaugh' s concurrence which cautions against intervention in the military' s chain of command. That case is distinguishable from the present one, and this Court's injunction. As set forth below, the injunction in this case is limited to solely these Plaintiffs and only maintains the status quo by maintaining the current temporary exemptions and prohibiting adverse or punitive action against those Plaintiffs for their refusal to receive the COVID-19 vaccine. It does not affect the Air Force's ability to make operational decisions, including deployability decisions.

Liberty Counsel issued a press release announcing the decision.