Recent Articles of Interest

 From SSRN:

• Meghan J. Ryan, A Catholic Perspective on Prison Conditions and Human Dignity, (Catholicism and Criminal Law (2022/2023 Forthcoming)).
• Marina Bán & Uladzislau Belavusau, Memory Laws, (Bloomsbury History: Theory and Method (2022)).
• Kurt T. Lash, Roe and the Original Meaning of the Thirteenth Amendment, (May 20, 2022).
• Cass R. Sunstein, The Alito Draft, (May 23, 2022).
• Hayden Richard, Louisiana Senate Bill 156: Exclusion, or Fairness in Women’s Sports?, (Southern University Law Review Vol. 49 No. 2, Forthcoming).
• Dr. Sulaiman Lebbe Rifai, Politics and the Muslim World, (May 19, 2022).
• Christine Abely, The Uncertain Role of Reliance in the Enforcement of Charitable Subscriptions, (26 Lewis & Clark L. Rev. 113 (2022)).

From SmartCILP:

• Linda Przybyszewski, Religious Liberty Sacralized: The Persistence of Christian Dissenting Tradition and the Cincinnati Bible War, [Abstract], 39 Law & History Review 707-736 (2021).

6th Circuit: Suit Over Marriages By Clergy Ordained Online Can Move Ahead In Part

In Universal Life Church Monastery Storehouse v. Nabors, (6th Cir., May 27, 2022), the U.S. 6th Circuit Court of Appeals allowed claims against a portion of the original defendants to move ahead in the Universal Life Church's challenge to a Tennessee law that prohibits persons receiving online ordination from solemnizing marriages.  Various defendants asserted standing and sovereign immunity defenses. Summarizing its holding, the court said in part:

No plaintiff has standing to seek relief against Governor Lee, Attorney General Slatery, District Attorney General Helper, or County Clerks Crowell, Anderson, and Knowles.... As a result, those portions of the district court’s preliminary injunction that purport to bind [them] ... are VACATED. By contrast, however, we AFFIRM the district court’s determination that plaintiffs have standing to sue District Attorneys General Dunaway, Pinkston, and Jones, along with County Clerk Nabors. We also AFFIRM the district court’s denial of these officials’ sovereign immunity at the motion-to-dismiss stage, and so we do not disturb those portions of the preliminary injunction binding [them].... Last, we REMAND what remains of this suit to the district court for further proceedings consistent with this opinion.

Ecclesiastical Abstention Doctrine Does Not Apply To Dispute Over Church's Form Of Governance

In Bogle v. Sewell, (MI App., May 26, 2022), a Michigan state appellate court held that the ecclesiastical abstention doctrine did not preclude the trial court from deciding whether 2011 and 2019 amendments to the bylaws of Evangel Echos Church of the Air validly changed the church from a membership-based to a directorship-based governance. The court said in part:

Whether the Church was organized on a membership basis or a directorship basis was not an ecclesiastical question—it was a corporate law question. To answer this question, the trial court needed to look no further than the Church’s Articles of Association and the MNCA. Resolving the parties’ dispute did not require the trial court to interpret any of the Church’s religious doctrine or to pass judgment on what it believed to be the form of corporate governance most in line with the Church’s discipline or values. It simply required the trial court to apply Michigan statutory law against the language of the Articles of Association

Michigan City Revises Policy On Hijab In Booking Photos

CAIR-Michigan announced yesterday that a settlement has been reached with the city of Ferndale in a suit charging the Ferndale police department with forcibly removing a Muslim woman's hijab for a booking photo after her arrest:

... Ferndale and Bowe have reached a full and satisfactory settlement of this matter that involved the city instituting new policies allowing Muslim women to maintain their hijab when a booking photo is taken and prohibiting cross-gender searches in the absence of an emergency as well as a monetary settlement. 

3rd Circuit: Accommodation Of Sabbath Observer Would Create Undue Hardship For Postal Service

In Groff v. DeJoy, (3d Cir., May 25, 2022), the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, held that accommodating a Sunday sabbath observer by allowing him not to report for work on Sunday would cause an "undue hardship" to the U.S. Postal Service.  Thus, failure to grant that accommodation did not violate Title VII of the 1964 Civil Rights Act. In reaching that conclusion, the court agreed with those circuits that interpret "reasonable accommodation" under Title VII to mean an accommodation that totally eliminates the conflict between job requirements and religious practice. Judge Hardiman, dissenting, said that USPS had not satisfied its burden at the summary judgment stage to prove undue hardship, though it might be able to do so with more facts at trial. Courthouse News Service reports on the decision. [Thanks to Scott Mange for the lead.]

6th Circuit En Banc Dismisses Mask Mandate Challenge As Moot

In Resurrection School v. Hertel, (6 Cir., May 25, 2022), an en banc panel of the U.S. 6th Circuit Court of Appeals held by a vote of 13-1-3 that a free exercise challenge to Michigan's COVID mask mandate for school children is moot. The mandate is no longer in effect. The suit was brought by a private religious school and two parents of school children. One judge concluded that the preliminary injunction appeal moot, but the proceedings for a declaratory judgment and permanent injunction are not. The majority said in part:

For all the reasons recited above—the changed circumstances since the State first imposed its mask mandate, the substantially developed caselaw, the lack of gamesmanship on the State’s part—we see no reasonable possibility that the State will impose a new mask mandate with roughly the same exceptions as the one originally at issue here. This claim is moot—indeed palpably so.

Judge Bush in a 31-page dissent joined by two other judges said in part:

[T]he majority’s decision to declare the entire case against MDHHS moot—rather than simply deciding the preliminary-injunction appeal—has stripped us of a valuable opportunity to clarify the law of our circuit. What the majority should have done, instead, is rule solely on the interlocutory order before us.

Fox2 Detroit reports on the decision.

Suit Challenging Bible In Schools Program Is Settled

An Order of Dismissal was entered last week in Freedom From Religion Foundation v. Mercer County Board of Education, (SD WV, May 16, 2022). According to Christian Post, in January 2019 the school board ended the Bible In The Schools program that was being challenged in the lawsuit. According to an FFRF press release:

The Mercer County Board of Education, through its insurance coverage, agreed to pay $225,000 to cover the costs and attorneys fees of the plaintiffs. Those payments will reimburse two private law firms and FFRF for hundreds of hours of time spent by attorneys litigating the case.

Certiorari Denied In Synagogue Picketers Case

On May 16, the U.S. Supreme Court denied review in Gerber v. Herskovitz, (Docket No, 21-1263, certiorari denied, 5/16/2022) (Order List). In the case, the U.S. 6th Circuit Court of Appeals dismissed a suit by synagogue members against anti-Israel pickets who have picketed services at the Beth Israel Synagogue in Ann Arbor, Michigan every week since 2003. (See prior posting).

Three Chabad Rabbis Are On Russia's List Of Those Banned From Travel To Russia

As reported by Axios, Russia last Saturday released a list of 963 Americans who are banned from traveling to Russia in retaliation for American sanctions against Russia for its invasion of Ukraine. JTA reports that included in the list are three rabbis who are leaders of Agudas Chassidei Chabad which has been attempting for years to force Russia to return to it in the U.S. two expropriated collections of valuable Jewish religious books and manuscripts:

Rabbi Avraham Shemtov, a founder of the Washington office of the movement, American Friends of Lubavitch (Chabad), that has led lobbying for U.S. pressure on Russia;

Rabbi Yehuda Krinsky, the umbrella group’s secretary, who heads the educational and social arms of Chabad-Lubavitch; and

Rabbi Shlomo Cunin, a West Coast leader of the movement who is prominent in the branch of the movement seeking the return of the texts.

It has been suggested recently that Chabad now has a better chance of getting at assets to satisfy fines imposed on Russia by an American court for Russia's refusal to return the books.

University's Vaccine Mandate Did Not Violate Free Exercise Rights Of Students

In America's Frontline Doctors v. Wilcox, (CD CA, May 5, 2022), a California federal district court dismissed the associational plaintiff for lack of standing and rejected individual plaintiffs' free exercise challenge (as well as their other challenges) to the University of California Riverside's COVID vaccine mandate. The court said in part:

Plaintiffs contend that Defendants' enforcement of the Policy violates their right to free exercise of religion. The SAC alleges that Defendants "coerc[e] students to make an unnatural choice...either quickly injecting themselves...[with a COVID-19 vaccine] ... or ...disclosing under duress their religious beliefs to Defendants' religious exemption approval panels."... They also contend that Defendants "prejudicially segregate religious people in order to subject them to...testing."... Plaintiffs have religious exemptions from the Policy. Even so, Plaintiffs contend that testing and masks "substantially interfere with students' religious practices of prayer, speech, and deed."...

The Policy is a neutral and generally applicable. It applies to all students, professors, and staff at the University of California and seeks to protect public health and safety. Defendants offer exemptions for religious beliefs, medical reasons, and disability.... The Policy's exemptions pass constitutional muster.... Plaintiffs allege that they requested religious exemptions under "duress" but fail to explain how their decisions to voluntarily submit a one-page exemption form were executed under "duress." Plaintiffs also fail to describe how masks and testing interfere with the students' religious practices of prayer, speech, and deed. Plaintiffs are only required to mask while indoors—a restriction that also applied to vaccinated students at the time the SAC was filed. Presumably Plaintiffs would be indoors to attend class, so it is unclear how the Policy interferes with religious practices.

Anti-SLAPP Motion Denied In Suit Against Archdiocese Over Priest's Molestation of Children

In Ratcliff v. Roman Catholic Archbishop of Los Angeles, (CA App., May 19, 2022), a California state appellate court affirmed the denial of an anti-SLAPP motion sought by the Los Angeles Archdiocese.  The court explained:

Seven adults allege they were molested by a priest when they were children. They brought suit against The Roman Catholic Archbishop of Los Angeles and related entities ..., alleging defendants were vicariously liable for ratifying the molestation and directly liable for their own negligence in failing to supervise the priest, and related acts and omissions. The Archdiocese moved to strike the operative complaint under the anti-SLAPP law (Code Civ. Proc., § 425.16), arguing that some of the acts by which it purportedly ratified the molestation or acted negligently constituted speech or litigation conduct protected by the anti-SLAPP statute....

The court concluded however that:

The Archdiocese, both in its anti-SLAPP motion before the trial court, and in its briefing on appeal, goes to great lengths to overlook the actual allegations of ratification, namely the acts of failing to investigate and supervise (and, instead, transferring to different parishes)... 

The four purported negligence claims identified by the Archdiocese have one key factor in common: they are all based on a decision not to speak, not speech itself.... We conclude the failure to speak alleged as a basis for liability here is not conduct in furtherance of the right of free speech.

Report Ranks Large Corporations' Commitment To Religious Diversity and Inclusion

On Tuesday. the Religious Freedom & Business Foundation released its third annual report on the Fortune 500’s Commitment to Workplace Religious Inclusion. (Summary)(Full Text). The top four companies in its Corporate Religious Equity, Diversity & Inclusion (REDI) Index 2022 are: American Airlines, Intel, Dell Technologies and PayPal.

New York Enacts One-Year Window To Bring Old Adult Sex Abuse Cases

Yesterday New York Governor Kathy Hochul signed S66A (full text), a bill which creates a one-year window to bring previously time-barred civil actions for sexual assaults that were committed on an adult. New York Post reports on the bill. Previously, in 2019, New York enacted the Child Victims Act applying to prior child sexual abuse. (See prior posting.)

Dispute Over Kosher Certification Agencies Dismissed On Ecclesiastical Abstention Grounds

In Chimichurri v. Vaad Hakashrusof the Five Towns Far Rockaway, (Sup Ct Nassau Cnty NY, May 17, 2022), a New York state trial court dismissed on ecclesiastical abstention grounds a suit by a restaurant owner against a kosher certification agency.  The monopoly of a community-wide certification agency was broken when two rabbis formed a competing agency.  53 rabbis issued a letter urging members of the community not to patronized establishments certified by the new agency.  A restaurant making use of the new agency sued, claiming the letter cost it $156,000 per year in revenue. In dismissing the suit, the court said in part:

Here, the dispute is essentially one that involves the religious principles concerning the Kashrut, or Jewish dietary laws. Cases have long recognized that such disputes are ecclesiastical in nature....

It is apparent that the Defendant represents the efforts of the Five Towns and Rockaway community to break away from the historical disagreement over the laws of Kashrut and to develop generally agreed upon standards for that particular community. The Plaintiff chose to deviate from that. This Court is precluded, by the First Amendment, from considering the merits of the Plaintiff’s contentions arising from these facts.

The Forward reports on the decision.

Cert. Denied In Challenge To NY Repeal Of Religious Exemption To School Vaccinations

The U.S. Supreme Court yesterday denied review in F.F. v. New York, (Docket No. 21-1003, certiorari denied 5/23/2022). (Order List). In the case, a New York state appellate court rejected parents' constitutional challenges to New York's repeal of the religious exemption from mandatory vaccination for school children. (See prior posting). SCOTUSblog's case page has links to the filings in the case.  Christian Post reports on the denial of certiorari.

European Court Upholds Custody Order Barring Father From Involving Daughter In Jehovah's Witness Practices

In T.C. v. Italy, (ECHR, May 19, 2022), the European Court of Human Rights in a 5-2 Chamber Judgment upheld an Italian court's order in a custody case in which an 8-year old's mother who was a nominal Catholic, and who had the daughter enrolled in catechism classes, objected to the girl's father involving her in his Jehovah's Witness religion.  The court ordered the father to refrain from actively involving the daughter in his religion. The European Court rejected the father's argument that the Italian court's order disproportionately interfered with his right to family life and his freedom of religion.  The European Court said in part:

[I]n the present case the domestic courts ... had regard above all to the child’s interests. The child’s interests lay primarily in the need to maintain and promote her development in an open and peaceful environment, reconciling as far as possible the rights and convictions of each of her parents.

... [I]nvolving E.[the daughter]  in the applicant’s religious practices would destabilise her in that she would be induced to abandon her Roman Catholic religious habits.... 

... [T[he contested measure had little influence on the applicant’s religious practices and was in any event aimed solely at resolving the conflict arising from the opposition between the two parents’ educational concepts, with a view to safeguarding the child’s best interests.

The Court also published a summary of its decision. Law & Religion UK has more on the decision.

Report Finds Southern Baptist Convention Mishandled Sexual Abuse Allegations

Yesterday, the report of an independent investigation into the Southern Baptist Convention Executive Committee’s Response to Sexual Abuse Allegations was released. The 288-page report (full text) (Appendix 1 & 2) summarizes its findings in part:

For almost two decades, survivors of abuse and other concerned Southern Baptists have been contacting the Southern Baptist Convention (“SBC”) Executive Committee (“EC”) to report child molesters and other abusers who were in the pulpit or employed as church staff. They made phone calls, mailed letters, sent emails, appeared at SBC and EC meetings, held rallies, and contacted the press…only to be met, time and time again, with resistance, stonewalling, and even outright hostility from some within the EC.

Our investigation revealed that, for many years, a few senior EC leaders, along with outside counsel, largely controlled the EC’s response to these reports of abuse. They closely guarded information about abuse allegations and lawsuits, which were not shared with EC Trustees, and were singularly focused on avoiding liability for the SBC to the exclusion of other considerations. In service of this goal, survivors and others who reported abuse were ignored, disbelieved, or met with the constant refrain that the SBC could take no action due to its polity regarding church autonomy – even if it meant that convicted molesters continued in ministry with no notice or warning to their current church or congregation....

The Report also disclosed:

During the course of our investigation, an SBC pastor and his wife came forward to report that former SBC President Johnny Hunt (2008-2010), who was the immediate past SBC President at the time, had sexually assaulted the wife on July 25, 2010. The allegations include grooming of the wife during Dr. Hunt’s term as SBC President. At the time of the allegations, Dr. Hunt was also Senior Pastor at First Baptist Church, Woodstock, Georgia.

The Report also sets out a series of recommendations to improve SBC's response to sexual abuse and misconduct allegations in the future.

Houston Chronicle has more on the Report.

Appeals Court Asked To Dismiss Michigan Abortion Law Challenge

As previously reported, In Planned Parenthood of Michigan v. Attorney General of the State of Michigan, the Michigan Court of Claims issued a preliminary injunction barring enforcement of the state's 1931 pre-Roe abortion ban while a challenge to that law under the Michigan state constitution is being litigated. On Friday, instead of filing an appeal in that case, plaintiffs filed a Complaint (full text) with the Michigan Court of Appeals captioned In re Jarzynka, (Ct. App., filed 5/20/2022) seeking an Order of Superintending Control and filed a Motion for Immediate Consideration.  In the Complaint, petitioners allege:

Judge Gleicher refused to dismiss the case for lack of jurisdiction even though the Attorney General—a preeminent supporter of abortion rights—admits there is no adversity between the parties or actual controversy because the Attorney General refuses to defend or enforce the challenged law. The ACLU and Planned Parenthood’s claims are obviously moot and not ripe.

Prosecutors Jarzynka and Becker, Right to Life of Michigan, and the Michigan Catholic Conference respectfully ask this Court to issue an order of superintending control requiring the Hon. Elizabeth Gleicher of the Court of Claims to dismiss the case for lack of jurisdiction. Doing so will not prevent other adverse cases from moving forward.... 

At a minimum, Prosecutors Jarzynka and Becker, Right to Life of Michigan, and the Michigan Catholic Conference respectfully ask the Court to issue an order vacating the preliminary injunction order and requiring Judge Gleicher to adhere to the objective appearance-of-impropriety standard and recuse herself.

ADF issued a press release announcing the filing.

Recent Articles of Interest

 From SSRN:

• Samuel J. Levine, Foreword to the Symposium: The Life and Work of Robert M. Cover, (37 Touro L. Rev. 1735 (2022)).
• Alex Reed, Religious Organization Staffing Post-Bostock, (Berkeley Journal of Employment and Labor Law, Vol. 43, No. 1, 2022).
• Reva B. Siegel, Serena Mayeri & Melissa Murray, Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, (43 Columbia Journal of Gender and Law (2023 Forthcoming)).
• Michael Conklin, Buck v. Bell: Understanding Its Past, Present, and Future, (May 2022).
• Patrick McKinley Brennan, Punishment Among Friends: Charity-love and Redress of Violations of the Common Good, (May 17, 2022).

From SSRN (Non-U.S Law):

• Quianna Canada, Out of the Miqlaatun Into the Fire: The Shariazation of Ireland’s Direct Provision Institution and its Impact on Transgender Asylum Seekers, (May 12, 2022).
• Hui Jing, Bringing Proceedings Against Trustees of Australian Charitable Trusts - The Standing of Objects, (Third Sector Review 2022, Forthcoming).
• Hui Jing, Risk Allocation: The Contractual Practice of Chinese Charitable Trusts, (Chinese Journal of Comparative Law 2022, Forthcoming).
• Hui Jing, Conceptualising the Chinese Charitable Trust, (Journal of Equity 2022, Forthcoming).
• Mansi Mathur, Critical Analysis of Mass Conversion Laws in India through the Lens of Uttar Pradesh’s Anti-Conversion Ordinance, (April 20, 2021).
• M. Mohsin Alam Bhat, Doubtful Citizens: Irregularization and Precarious Citizenship in Contemporary India, (Statelessness in Asia (Forthcoming)).
• Lilian Tsourdi & Philippe De Bruycker, The Evolving EU Asylum and Migration Law, (Forthcoming in: Evangelia (Lilian) Tsourdi & Philippe De Bruycker (eds.), Research Handbook on EU Migration and Asylum Law, Edward Elgar, 2022).

From SmartCILP:

• Mark R. Killenbeck, Sober Second Thought? Korematsu Reconsidered, 74 Arkansas Law Review 151-254 (2021).
• Robert L. Tsai, A Proper Burial, 74 Arkansas Law Review 307-322 (2021).

NYT Details Russian Orthodox Patriarch's Important Support For Invasion Of Ukraine

The New York Times yesterday posted a long article detailing the crucial support given by Russian Orthodox Church leader Patriarch Kirill I to Vladimir Putin's actions in Ukraine, saying in part:

Patriarch Kirill I has provided spiritual cover for the invasion of Ukraine, reaping vast resources for his church in return. Now, in an extraordinary step, the E.U. is threatening him with sanctions....

Kirill has called Mr. Putin’s long tenure “a miracle of God,” and has characterized the war as a just defense against liberal conspiracies to infiltrate Ukraine with “gay parades.”...

Kirill has in recent years aspired to expand his church’s influence, pursuing an ideology consistent with Moscow being a “Third Rome,” ... in which Mr. Putin’s Russia would become the spiritual center of the true church after Rome and Constantinople.

It is a grand project that dovetails neatly with — and inspired — Mr. Putin’s mystically tinged imperialism of a “Russkiy Mir,” or a greater Russian world.

Archbishop Bars Pelosi From Communion Because Of her Support For Abortion Rights

On Thursday, San Francisco Catholic Archbishop Salvatore J. Cordileone formally notified Nancy Pelosi, Speaker of the House of Representatives, of the consequences under Church law of her support for codifying Roe v. Wade into law:

you are not to present yourself for Holy Communion and, should you do so, you are not to be admitted to Holy Communion, until such time as you publically repudiate your advocacy for the legitimacy of abortion and confess and receive absolution of this grave sin in the sacrament of Penance.

The Notification (full text) also says in part:

The Second Vatican Council, in its Decree on the Church in the Modern World, Gaudium et spes, reiterated the Church’s ancient and consistent teaching that “from the first moment of conception life must be guarded with the greatest care while abortion and infanticide are unspeakable crimes”....

... A Catholic legislator who supports procured abortion, after knowing the teaching of the Church, commits a manifestly grave sin which is a cause of most serious scandal to others....

The Archbishop also sent a lengthy Letter to the Faithful (full text) explaining his action, saying in part:

Please know that I find no pleasure whatsoever in fulfilling my pastoral duty here.  Speaker Pelosi remains our sister in Christ.  Her advocacy for the care of the poor and vulnerable elicits my admiration.  I assure you that my action here is purely pastoral, not political.

He also sent a Letter to the Priests of the Archdiocese (full text) explaining the Canon Law basis of his decision and giving them further background.  It reads in part:

Canon 915 is found in Book IV of the Code of Canon Law, which has to do with the Sanctifying Office of the Church.  It is not in Book VI, which is the Church’s legislation on penal law.  Thus, this is not a sanction, or a penalty, but rather a declaration of fact: the Speaker is “obstinately persevering in manifest grave sin” (canon 915).  A sanction, on the other hand, such as excommunication, has its own particular process and reasons for being applied.  This is quite distinct from the application of canon 915....

Let us not fool ourselves: this is, essentially, a spiritual battle.  It is not poetic rhetoric to call the proliferation of abortion demonic.  The prophets of old excoriated the people of Israel when they passed over to the worship of Moloch, sacrificing their children to this pagan idol (cf. Lev 18:21; Lev 20:2; Ps 106:37-38).  Recall that in the biblical mentality, pagan idols are synonymous with demons.  It should come as no surprise, then, that the first one to challenge the Texas heartbeat law was the Satanic Temple, and precisely on the grounds of denial of religious freedom: they need abortion to carry out their rituals....

In closing, allow me to observe that what we are facing in this particular moment of history is a powerful reminder to us that the Priesthood is not for the faint-hearted.  Of course, it never was.  But for a long time, up until recently, we lived in a society that allowed us to imagine that it was.  Let us not fool ourselves any longer.

NPR reports on the Archbishop's action.

House Overwhelmingly Passes Resolution Condemning Antisemitism

On Thursday, the U.S. House of Representatives by a vote of 420-1 passed House Resolution 1125 (full text) condemning rising antisemitism. Among the various actions called for by the Resolution, it:

(1) calls on elected officials, faith leaders, and civil society leaders to use their bully pulpit to condemn and combat any and all manifestations of antisemitism;

(2) calls on elected officials to condemn and combat any and all denials and distortions of the Holocaust and to promote Holocaust and antisemitism education;...

(5) calls on social media platforms to institute stronger and more significant efforts to measure and address online antisemitism while protecting free speech concerns;

The only Representative voting against the Resolution was Thomas Massie of Kentucky. Seven Representatives were listed as "not voting." JNS reports on the Resolution.

Court Denies Relief To Air Force Members With Religious Objections To COVID Vaccine

In a 61-page opinion in Roth v. Austin, (D NE, May 18, 2022), a Nebraska federal district court denied a preliminary injunction to 36 members of the Air Force, Air Force Reserve and Air National Guard who have religious objections to complying with the military's COVID vaccine mandate. The court said in part:

One objection made by several airmen is that part of the science giving rise to approved COVID19 vaccines involved use of research derived from aborted fetal cell tissue that was developed decades ago. Certain major religions of the world have long strenuously objected to the use of such research in medicine. However, having lost that battle in significant regard over the decades, many of those same religions have concluded that the remote impact of what they deem to be religiously or ethically objectionable research utilized for the vaccines does not support refusal to take the vaccines on religious grounds today....

The Court concludes, at least at this preliminary stage, that the Air Force has demonstrated it has a compelling interest in the health and readiness of its forces, including individual service members like Plaintiffs. The Court also concludes that the Air Force’s COVID-19 vaccination mandate is the least restrictive means of furthering that compelling interest, as to both the Air Force generally and as to individual Plaintiffs in particular. The Air Force has demonstrated that its process for consideration of religious exemptions was not simply “theater” or “a sham,” but was a process that adhered to the requirements of the law, most specifically RFRA. These conclusions mean that Plaintiffs do not have sufficient likelihood of success on the merits of either their RFRA claim or their Free Exercise of Religion claim to warrant issuance of a preliminary injunction.

Yesterday a notice of appeal to the U.S. 8th Circuit Court of Appeals was filed.

Employee Sues After Being Fired For Religious Objection To Rainbow As Gay Pride Symbol

Suit was filed this week in an Iowa federal district court by a former employee of a metal engineering and manufacturing company who says he was fired for expressing his Christian beliefs. The complaint (full text) in Snyder v. Arconic, Inc., (SD IA, filed 5/18/2022), charges religious discrimination and retaliation in violation of Title VII and state law. It alleges:

In June 2021, in attempting to respond to an anonymous company survey, Mr. Snyder briefly commented that the company’s use of the rainbow to promote “Gay Pride Month” was “an abomination to God,” as the rainbow “is not meant to be a sign for sexual gender.”

... Arconic informed Mr. Snyder that his comment had been posted publicly on the company “intranet”—which was not Mr. Snyder’s intent—and that it had offended a fellow employee. Mr. Snyder was summarily suspended and then terminated, allegedly for violating the company’s “diversity policy.”

Thomas More Society issued a press release announcing the filing of the lawsuit. 

Posting Of National Motto In School Does Not Violate Establishment Clause

In JLF v. Tennessee State Board of Education, (MD TN, May 18, 2022), a Tennessee federal district court upheld Tennessee's statute that requires all public schools to post the national motto "In God We Trust" in a prominent location. The law was challenged under the Establishment Clause by the father of a kindergartener on behalf of his daughter whose school has posted the motto as part of a display in the entryway to the school.  The court said in part:

The court finds ... in light of the substantial body of law ... repeatedly concluding in a variety of contexts that the national motto has a secular purpose and that its display does not violate the Establishment Clause, that the Lemon test is of limited utility in this context.... The fact that the display is in a public school does not require enhanced scrutiny.... [T]he posting of the national motto in schools “involves no coercion,” “does not purport to compel belief or acquiescence,” “does not command participation in any form of religious exercise,” “does not assert a preference for one religious denomination or sect over others, and it does not involve the state in the governance of any church.”...

Oklahoma Legislature Bans Most Abortions From Time Of Fertilization

The Oklahoma legislature yesterday gave final passage to HB4327 (full text), a bill that bans abortions beginning at the time of fertilization.  However, it does not ban  Plan B, morning-after pills, or any other type of contraception or emergency contraception. It also contains exclusions for abortions to save the life of the mother in a medical emergency resulting from a physical condition, or in cases of rape, sexual assault or incest, and for procedures aimed at saving the life or health of the unborn child or removing a fetus in case of a miscarriage or ectopic pregnancy. 

Enforcement is solely by private lawsuits for injunctions or damages of not less than $10,000. Suit may be brought against anyone (other than the mother) who performs and abortion, or aids and abets procurement of an abortion, including anyone who reimburses the costs of an abortion through insurance or otherwise. State courts are deprived of jurisdiction over suits to prevent a private person from suing. Civil actions under the law are not covered by the Oklahoma Religious Freedom Act, but the Act should not be construed to authorize a government entity to substantially burden any religious belief. KJRH News reports on the bill.  Earlier this year, Oklahoma enacted a ban on abortions after six weeks of pregnancy. (See prior posting.)

Biden Issues Greetings To Buddhists Celebrating Vesak

Earlier this week, President Biden issued a Statement (full text) extending warm wishes to Buddhists in the United States and around the world celebrating Vesak. The Statement says in part:

This sacred day is a time to reflect on the Buddha’s teachings, including the need to work for peace and justice, recognize our common humanity, respect and preserve the nature that surrounds us, and cultivate humility and compassion.

Vesak was celebrated this year on May 16.

South Carolina Governor Signs Law On Transgender Students In Sports

On Monday, South Carolina Governor Henry McMaster signed  H4608, the Save Women's Sports Act (full text). The law requires school athletic teams to be designated based on biological sex at birth of team members, and provides in part:

(2)    Athletic teams or sports designated for males, men, or boys shall not be open to students of the female sex, unless no team designated for females in that sport is offered at the school in which the student is enrolled.

(3)    Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.

The law applies to interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by a public elementary or secondary school or public postsecondary institution, and to private school teams that compete against public schools. Washington Examiner reports on the new law.

In Israel, Jewish Group Sues Haredi News Site Over Policy On Photos Of Women

Times of Israel reported yesterday that the Israel Religious Action Center, a branch of the Judaism's Reform movement, is suing an ultra-Orthodox Jewish news website in Israel for $100,000(US) in damages because of its policy of digitally blurring faces of females in news photos it posts. Last year, the news site B'hadrei Haredim blurred the faces of female leaders of Jewish movements in a photo of their meeting with Israel's President Isaac Herzog. A number of Orthodox news sites follow this policy in order to observe religious doctrines regarding modesty.

State Court Enjoins Enforcement Of Michigan's Pre-Roe Abortion Ban

In Planned Parenthood of Michigan v. Attorney General of the State of Michigan, (MI Ct. Cl., May 17, 2022), the Michigan Court of Claims issued a preliminary injunction barring enforcement of the state's 1931 pre-Roe abortion ban while a challenge to that law under the Michigan state constitution is being litigated. The 1931 ban contains an exception only for preserving the life of the mother. The court said in part:

After 50 years of legal abortion in Michigan, there can be no doubt but that the right of personal autonomy and bodily integrity enjoyed by our citizens includes the right of a woman, in consultation with her physician, to terminate a pregnancy. From a constitutional standpoint, the right to obtain a safe medical treatment is indistinguishable from the right of a patient to refuse treatment. Based on the due process principles discussed above, the Court finds a substantial likelihood that MCL 750.14 violates the Due Process Clause of Michigan's Constitution.

ACLU of Michigan issued a press release announcing the decision.

U.S. Sanctions On Russia May Lead To Chabad Recovering Assets In Suit Over Return Of Jewish Library Collection

As previously reported, in 2013 the D.C. federal district court held the Russian government and three of its agencies in civil contempt for not complying with a 2010 default judgement ordering it to return two expropriated collections of valuable Jewish religious books and manuscripts to Chasidei Chabad of United States.  Despite objections by the United States government, the court imposed civil sanctions of $50,000 per day until defendants comply with the court's order. Chabad ever since has been seeking Russian assets to satisfy the continually accruing civil sanctions. 

This week, JTA published an interesting analysis suggesting that Ukraine-related U.S. sanctions on Russia may set the stage for Chabad to recover assets:

By late 2021, two entities had emerged as Chabad’s primary targets: Russia’s main development bank, VEB, and Tenex, a subsidiary of a Russian state-run company called Rosatom that sells uranium to nuclear power plants in the United States.

The United States announced sanctions on VEB on Feb. 22 in the lead-up to Russia’s invasion of Ukraine, freezing the bank’s U.S. assets. Its determination that VEB is effectively state wealth has given [Steven] Lieberman [Chabad's attorney] confidence that Chabad can eventually convince the U.S. Treasury Department to turn over VEB assets....

If VEB’s U.S. assets are all tied up in sanctions, Tenex remains entirely unrestricted. That’s because when the Biden administration imposed sanctions on Russia’s energy industry on March 8, it exempted nuclear power, allowing the continued import of Russian uranium. 

“If we’re allowed to seize the assets of Tenex, Chabad will be the only religious organization in the world that has its own nuclear power supply,” Lieberman said, half-jokingly.

City Council's Opening Of Meetings With Lord's Prayer Violates Establishment Clause

In Cobranchi v. City of Parkersburg, (D WV, May 17, 2022), a West Virginia federal district court held that Parkersburg's City Council violated the Establishment Clause by opening each of its meetings with The Lord's Prayer.  The court said in part:

The City Council’s prayer practice most clearly runs afoul of the Fourth Circuit’s concern with identifying the government with a single preferred religious sect. As noted, the Lord’s Prayer is sourced from a biblical translation of the gospel of Matthew, and the version utilized by the town council includes a concluding Christian doxology.... [I]t seems apparent that a reasonable observer to City Council meetings would be aware of the origin, or at the least Christian nature, of the prayer. By continually reciting, over a number of years, the same prayer clearly identifiable with a particular faith, without the opportunity for other faiths to be heard, the City Council impermissibly identified itself with a preferred religion.

FFRF issued a press release announcing the decision.

Christian Flight Attendants Sue After Being Fired For Their Posted Views On LGBTQ Rights

Suit was filed yesterday in a Washington federal district court by two Alaska Air flight attendants who allege, under Title VII and state anti-discrimination laws, illegal religious discrimination, hostile work environment, workplace harassment and retaliation.  The flight attendants were fired after they posted on an internal employee message board their opposition to the Airline's support for the federal Equality Act which would add sexual orientation and gender identity as groups protected against workplace discrimination. According to the complaint (full text) in Brown v. Alaska Airlines Inc., (WD WA., filed 5/17/2022):

3.... Marli and Lacey felt compelled by their Christian faith to post one comment each, asking about the impact of the Equality Act on civil rights for religion and women in the workplace.

4. Alaska Airlines responded to Marli and Lacey’s posts by immediately removing Marli and Lacey from their flight schedules, terminating their employment, and disparaging their religious expression and beliefs as “discriminatory,” “hateful,” and “offensive.”

5. When Marli and Lacey—both union members—faced termination because of their religious practices and beliefs, AFA failed to effectively represent them, ignoring civil rights laws prohibiting both employers and unions from discriminating on the basis of religion.

First Liberty issued a press release announcing the filing of the lawsuit. 

Court Enjoins Application To Christian Employers Of Protections For Gender Transition Services

In Christian Employers Alliance v. U.S. Equal Opportunity Commission, (D ND, May 16, 2022), a North Dakota federal district court, responding to a suit by an employers' organization challenging federal agency interpretations of anti-discrimination requirements, issued a preliminary injunction barring the EEOC from interpreting Title VII to require plaintiff's members to provide insurance coverage for gender transition services. It also enjoined HHS from using Section 1557 of the Affordable Care Act to impose on plaintiff's members who are health care providers an obligation to furnish or facilitate gender transition services or to restrict their speech on gender identity issues. The court said in part:

Defendants argue they will comply with RFRA but cannot predict ahead of time how RFRA will apply to the facts of a particular matter.... Religious freedom cannot be encumbered on a case-by-case basis.... The Alliance maintains if the government interest is to increase access to gender transition services, the government itself could assume the costs for those unable to afford them or obtain them under their employer’s religious objections in the health insurance policies. The Alliance reiterates the government could also provide subsidies, reimbursements, tax credits or deductions. Defendants must demonstrate a compelling interest to the Alliance’s substantial burden and have failed to do so. Determining on a case-by-case basis if a religious exemption should apply is certainly not the least restrictive means.

Bloomberg Law reports on the decision. (See prior related posting.)

Charity Fraud Claims May Proceed Against Christian Apologetics Ministry

In Carrier v. Ravi Zacharias International Ministries, Inc., (ND GA, May 13, 2022), a Georgia federal district court allowed plaintiffs to move ahead with some of their charity fraud claims against RZIM, a Christian apologetics ministry, and the estate of its founder Ravi Zacharias. Plaintiffs claims include ones of unjust enrichment and violation of the state's Fair Business Practice Act. The court describes plaintiffs' claims:

They allege that the Defendants “bilked hundreds of millions of dollars from well-meaning contributors who believed RZIM and Zacharias to be faith-filled Christian leaders,” when “[i]n fact, Zacharias was a prolific sexual predator who used his ministry and RZIM funds to perpetrate sexual and spiritual abuse against women.”... 

Responding to defendants' assertion of the ecclesiastical abstention doctrine as a defense, the court said in part:

The Court will exercise jurisdiction over the Plaintiffs’ claims to the extent they are predicated on misuse-of-funds allegations but not faith-based allegations. At bottom, the faith-based allegations ask the Court to examine the theology and customs of Christianity and Christian apologetics to determine whether Zacharias and RZIM fulfilled the religion’s (and the Plaintiffs’) moral standards. The Court would have to make inherently ecclesiastical determinations as part of this inquiry, such as what it means to be a “faith-filled, moral, and upstanding Christian leader” ..., and whether Zacharias’s alleged sexual misconduct is “diametrically opposed to the teachings of Christianity.”... It is not the role of federal courts to answer these kinds of questions “because that would require defining the very core of what the religious body as a whole believes.”... 

On the other hand, the Court believes that the Plaintiffs’ misuse-of funds allegations do not pose the same First Amendment concerns. Those allegations, and the claims associated with them, raise what amounts to a secular factual question: whether the Defendants solicited funds for one purpose (i.e., Christian evangelism) but instead used those funds for another purpose (i.e., to perpetrate and cover up sexual abuse). That dispute “concerns the [D]efendants’ actions, not their beliefs,” and can be decided according to state statutes and common law principles. 

7th Circuit Hears Oral Arguments In Ministerial Exception Case Involving Catholic School

Yesterday, the US. 7th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Starkey v. Roman Catholic Archdiocese of Indianapolis. In the case, an Indiana federal district court  held that the ministerial exception doctrine bars Title VII retaliation, discrimination and hostile work environment claims as well as state law claims of interference with contractual and employment relationships in a suit brought by the former Co-Director of Guidance at a private Catholic high school. The school refused to renew its contract with Lynn Starkey, who had been employed by the school for nearly forty years, after the school learned of Starkey's same-sex marriage. (See prior posting.)

Louisiana Supreme Court Quashes Charges Against Pastor Who Violated COVID Orders

In State of Louisiana v. Spell (Parish of East Baton Rouge), (LA Sup. Ct., May 13, 2022), the Louisiana Supreme Court quashed bills of information that had been issued against a pastor, charging him with violating the governor's COVID orders early in the pandemic.  The Orders limited gatherings and imposed stay-at-home mandates. The pastor continued to lead in-person worship services in violation of the Orders. The majority said in part:

Orders 30 and 33 contain exemptions allowing certain secular activities to proceed as normal without limiting the number of people permitted in a single space at the same time. In many of those gatherings, the risk of spreading the virus appears no  less prevalent than at a comparable gathering in a church. At the very least, the state offered no evidence proving otherwise. The executive orders grant preferential treatment only to secular conduct. This disparate treatment “strike[s] at the very heart of the First Amendment’s guarantee of religious liberty.”

Chief Justice Weimer, joined by Justice Griffin, dissented, saying in part:

In the absence of an evidentiary record, the majority opinion takes the position that if any exceptions whatsoever were carved out from the orders, then strict scrutiny is warranted, and it was the State’s burden to establish that the orders were narrowly tailored. However, this position ignores the circumstances under which the orders were issued and, instead, holds the emergency orders to a standard of scrutiny that has thus far only been applied by the Supreme Court at a much later stage in the pandemic and at a time with much greater evidentiary knowledge

Justice Crichton filed a concurring opinion.  KAKE News reports on the decision, [Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:

• Bruce P. Frohen, Common Good Constitutionalism and the Problem of Administrative Absolutism, (April 14, 2022).
• Jennifer Lee Koh, Race, Immigration Law, and Christianity: Reflections and Tensions Raised by United States v. Wong Kim Ark, (Political Theology (2022, Forthcoming).
• Kyle Velte, The Precarity of Justice Kennedy's Queer Canon, (13 ConLawNOW 75 (2022)).
• Beatrice Jessie Hill, Look Who's Talking: Conscience, Complicity, and Compelled Speech, (97 Indiana Law Journal 913 (2022)).
• Rachel Morrison, Gender Identity Policy Under the Biden Administration, (23 Federalist Society Review 85 (2022)).
• Ken Levy & Jody Lynee Madeira, Sophistry at the Supreme Court, (The Hill (May 6, 2022)).
• Gabriella Kamran, The Things We Bear: On Guns, Abortion, and Substantive Due Process, (Georgetown Journal of Gender and the Law, Vol. XXIV, 2022).
• Philip Hackney, Written Testimony for the Hearing on Laws and Enforcement Governing the Political Activity of Tax-Exempt Entities, (U.S. Senate Finance Committee Subcommittee on Taxation and IRS Oversight, May 4, 2022).

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

• Alba Ruibal, Using Constitutional Courts to Advance Abortion Rights in Latin America, (International Feminist Journal of Politics 2021).
• Holning Lau & Suzanne A. Kim, Nonmarriage and Choice in South Africa and the United States, (Washington University Law Review, Vol. 99, 2022).
• Mischa Gureghian-Hall, Abortion Rights in International Law: The Inter-American Human Rights System and a Post-Roe v. Wade America, (21 UCLA Undergraduate Law Journal 63 (2022)).

Alabama Enjoined From Enforcing Ban On Medical Treatments For Transgender Minors

In Eknes-Tucker v. Marshall, (MD AL, May 13, 2022), an Alabama federal district court issued an injunction pending trial of  the portion of the Alabama Vulnerable Child Compassion and Protection Act that restricts transgender minors from being treated with puberty blockers and hormone therapies. The court said in part:

Parent Plaintiffs have a fundamental right to direct the medical care of their children. This right includes the more specific right to treat their children with transitioning medications subject to medically accepted standards. The Act infringes on that right and, as such, is subject to strict scrutiny. At this stage of litigation, the Act falls short of that standard because it is not narrowly tailored to achieve a compelling government interest. Accordingly, Parent Plaintiffs are substantially likely to succeed on their Substantive Due Process claim,

The court also found that parents were substantially likely to succeed on their equal protection challenge because "discrimination based on gender-nonconformity equates to sex discrimination." GLAD and other advocacy groups representing plaintiffs issued a press release announcing the decision.

Space Force Captain With Religious Objections To Vaccine Mandate Is Denied Injunction

In Creghan v. Austin, (D DC, May 12, 2022), the D.C. federal district court refused to grant a preliminary injunction to a captain in the U.S. Space Force who has religious objections to the military's COVID vaccine mandate,  The military refused to grant her a religious accommodation, but has not taken steps to separate from the military. The court said in part:

As the Court explained in a similar case, requests for religious exemptions from military-mandated medical requirements “raise particularly difficult questions that implicate a storm of colliding constitutional interests.” Navy SEAL v. Austin, 2022 WL 1294486, at *1 (D.D.C. Apr. 29, 2022). Although this case is much closer than Navy SEAL, the Court remains concerned that it lacks the competence to “evaluate the merits of military [epidemiological and tactical] expertise” or to “weigh technical issues of public health and immunology” necessary to resolve the case. Id. at *5. Justiciability is all the more uncertain given the unfixed, evolving science on which this vaccination mandate is based. These concerns permeate the merits of Plaintiff’s claims as well.

Intervenors Say USAF Senior Leaders Told To Deny All Religious Exemptions To Vaccine Mandate

In a Memorandum In Support of a Preliminary Injunction (full text) filed on behalf of 230 intervening plaintiffs in Doster v. Kendall, (SD OH, filed 5/3/2022), plaintiffs allege:

The 2021 CORONA Conference was held at  the United States Air Force Academy. (Id.) Whistleblowers have reported that all Chaplains and all persons other than those MAJCOM commanders responsible for adjudicating accommodation requests to the Air Force’s vaccine mandate, were asked to leave the room, so that the Secretary of the Air Force’s expectations concerning religious accommodation requests could be communicated to Air Force senior leaders....  Upon information and belief, the Secretary of the Air Force and/or his designees, communicated that no religious accommodations could or should be approved for anyone who would be remaining in the Department of the Air Force....

As of the date of the Intervening Complaint, the Department of the Air Force has received thousands of requests for religious accommodation, has only approved 42 – all of them at the end of their careers, who were otherwise eligible for an administrative exemption, and has denied 5,129 initial requests; and 1,692 final appeals, for a total of 6, 821 denials. In the meantime, the Air Force currently has granted 1,013 medical exemptions, and 1,273 administrative exemptions....  As of April 12, the Air Force has administratively separated 261 active-duty Airmen.... The granting of more than two thousand medical and administrative exemptions belies any assertion that vaccination is mission-critical and that no exemptions can be granted....

(See prior related posting.) Coffee or Die Magazine reports on the filing.

Tribe Is Required Party In Challenge To Directive On Repatriation of Native American Remains

 In Weiss v. Perez, (ND CA, May 10, 2022), a California federal district court dismissed a suit brought by a San Jose State University anthropology professor who objects to the University president's directive that denied her access to Native American remains housed at the University. The directive was issued to prepare the remains for repatriation to the Muwekma Ohlone Tribe. Plaintiff, Prof. Elizabeth Weiss is an opponent of repatriation. The court held in part:

The Court finds that the Muwekma Ohlone Tribe is a required party under Rule 19 to adjudication of Professor Weiss’s claims about the Directive. Because the Tribe has sovereign immunity from suit and thus cannot be joined, Professor Weiss’s claims regarding the Directive must be dismissed with prejudice. The Court will, however, give Professor Weiss leave to amend her complaint as to her allegations about retaliation in the form of restricting access to and use of non-Native American remains and retaliation for her protected speech as it may pertain to her teaching and curational responsibilities.

Certiorari Filed On Whether Falun Gong Tables Are Protected Under FACEA

A petition for certiorari (full text) was filed yesterday in Zhang Jingrong v. Chinese Anti-Cult World Alliance, Inc., (Docket No. 21-1429, filed 5/10/2022). In the case, the U.S. 2nd Circuit Court of Appeals held that five tables on the sidewalk in Flushing, Queens, New York where Falun Gong adherents passed out flyers and displayed posters were not a "place of religious worship" under the Freedom of Access To Clinics Entrances Act that prohibits intentionally injuring, intimidating, or interfering with anyone who is exercising 1st Amendment religious freedom rights “at a place of religious worship.” (See prior posting.) [Thanks to James A. Sonne for the lead.]

Court Enjoins Part Of School's Policy On Transgender Students' Preferred Names

Ricard v. USD 475 Geary County, KS School Board, (D KS, May 9, 2022), is a suit brought by a Christian middle school math teacher who objects on religious grounds the school's policy of requiring teachers to refer to transgender students by their preferred names and pronouns, and requiring teachers not to disclose those names and pronouns to parents without the student's consent. A Kansas federal district court enjoined the school district from from disciplining the teacher for referring to a student by the student’s preferred name and pronouns in communications with the student’s parents in the regular course of the teacher's duties. The parties reached an agreement on the other aspect of the school's policy. The teacher would use students' preferred names, but not their preferred pronouns.

Plaintiff Lacks Standing To Challenge No-Fault Divorce Law Under 1st Amendment

 In King v. State of New York, (2d Cir., May 9, 2022), the U.S. 2nd Circuit Court of Appeals held that plaintiff lacked standing to challenge New York's no-fault divorce law on free exercise or Establishment Clause grounds. The court said in part:

Ms. King alleges that this law and the resulting divorce violated her Free Exercise and Establishment Clause rights by requiring her to become divorced despite her religious belief in marriage until death..... Because Ms. King alleges only the termination of a civil contract, she has not plausibly alleged that the civil judgment of divorce entered against her “sever[ed] the holy marriage covenant made before God,” ... or “chang[ed] her status under . . . the laws of God”....

Recent Articles Of Interest

From SSRN:

• Faraz Sanei, Reclaiming Establishment: Identity and the ‘Religious Equality Problem’, (71 U. Kans. L. Rev. __ (Forthcoming 2022)).
• Ansley McLellan, A Prayer For The Ministerial Exception: The Need for More Transparency and Less Rigidity in Certain Claims and Definitions, (September 20, 2021).
• Rakesh K. Anand, Reasoning About Faith: On the Religious Lawyer, (16 FIU L. Rev. 259 (2022)).
• Ioan Rotaru, Scientia Moralitas Conference Proceedings, (April 30, 2021).
• Olivia Roat, Free-Exercise Arguments for the Right to Abortion: Reimagining the Relationship Between Religion and Reproductive Rights, (UCLA Women's Law Journal, Vol. 29, No. 1, 2022).
• Philip Hackney, Written Testimony of Philip Hackney for the Hearing on Laws and Enforcement Governing the Political Activity of Tax-Exempt Entities, (U.S. Senate Finance Committee Subcommittee on Taxation and IRS Oversight, May 4, 2022).
• Zalman Rothschild, Individualized Exemptions, Vaccine Mandates, and the New Free Exercise Clause, (131 Yale L.J.F. 1106 (2022)).

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

• Jianlin Chen & Shao Yuan Chong, The Curse of the Lecherous Spiritual Charlatans: Law, Moral Panic and Newspaper Reports of Rape by Religious Fraud in Taiwan, (University of Pennsylvania Asian Law Review, Vol. 17, 89-136 (2022)).
• Samy Ayoub, A Theory of a State? How Civil Law Ended Legal Pluralism in Modern Egypt, (Journal of Law and Religion, Vol. 37, No. 1, 2022).
• James J. Friedberg, States and Laws, Jews and Palestinians: Yadgar's Traditionalist Alternative. A Reflection on Yadgar, Israel's Jewish Identity Crisis (Cambridge, 2020) (Intercultural Human Rights Law Review, Vol. 16 (2021)).
• Muhammad Munir, Consent of the Guardian in Islamic Law and Pakistani Legal System: An Introduction, (April 11, 2022).
• Raphaële  Xenidis, The Concept of Direct Discrimination in European Anti-Discrimination Law: Theory, Practice and Limits, (Forthcoming book chapter in Colm O’Cinneide, Julie Ringelheim, Iyiola Solanke (eds.), Research Handbook on European Anti-Discrimination Law).
• Jaafar Almashaal, Some Reservations by the Islamic States on Major Human Rights Treaties, (April 7, 2022).
• Lyla Latif, FinTech led Tax Justice: Redistribution Using Zakat for the Socio-Economic Improvement of Women, Kardan Journal of Social Sciences and Humanities 4 (2) 44–55 (2021).

From Elsewhere:

• Linda Greenhouse, Should Courts Assess the Sincerity of Religious Beliefs?, The Atlantic, May 5, 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.

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.

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.

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.

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.

Recent Articles of Interest

From SSRN:

• Justin Collings & Stephanie H. Barclay, Taking Justification Seriously: Proportionality, Strict Scrutiny, and the Substance of Religious Liberty, 63 Boston College Law Review 453 (2022).
• Nicholas Aroney, Christianity and Constitutional Law,  (Forthcoming, in John Witte and Rafael Domingo (eds), Oxford Handbook on Christianity and Law, Oxford University Press, 2022).
• Kelly Deere, Democratizing Emergencies: The Local Predicament,  (101 N.C.L. Rev. F. ___ (Forthcoming, 2022)).
• Lael Daniel Weinberger, The Limits of Church Autonomy, (Notre Dame Law Review, Forthcoming).
• Maya McGrath, Teacher Prayer in Public Schools, (Fordham Law Review, Vol. 90, No. 5, 2022).
• Rosemary Teele Langford & Miranda Webster, Misuse of Power in the Australian Charities Sector, (University of New South Wales Law Journal, Vol. 45, No. 1, 2022).
• Bryan Thomas, et. al., Vaccine Ins and Outs: An Exploration of the Legal Issues Raised by Vaccine Passports, (C.D. Howe Institute working paper, 2021).
• Michael Conklin, Anti-Semitism and the Overlooked Benefits of Allowing 'Hate Speech', (April 2022).
• Julie C. Suk, A World Without Roe: The Constitutional Future of Unwanted Pregnancy, (William & Mary Law Review, Vol. 64, No. 2, 2022).
• Gregory Bigler, Foundations of Tribal Society: Art, Dreams, and the Last Old Woman, (UCLA School of Law, The Indigenous Peoples’ Journal of Law, Culture & Resistance, 7(1) (2022)).
• Jeffrey Pennell & Reid K. Weisbord, Trust Alteration and the Dead Hand Paradox, (ACTEC Law Journal, 2023 Forthcoming).

From SmartCILP:

• Ayelet Hoffmann Libson & Adi Libson, Replacing God with Big Data: Personalizing Copyright Law, 39 Boston University International Law Journal 181-206 (2021).
• Kellen R. Funk, Book Review. Propertied Rites. Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion, by Jack N. Rakove. Church State Corporation: Construing Religion in US Law, by Winnifred Fallers Sullivan, 36 Constitutional Commentary 175-212 (2021).

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.