Supreme Court Overrules Roe v. Wade and Casey

In a 5-1-3 opinion today, the U.S. Supreme Court in Dobbs v. Jackson Women's Health Organization, (Sup. Ct., June 24, 2022), overruled Roe v. Wade  and Planned Parenthood of Southeastern Pa. v. Casey.  The majority, in a 108-page opinion written by Justice Alito and joined by Justices Thomas, Gorsuch, Kavanaugh and Barrett said in part:

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. Until the latter part of the 20th century, such a right was entirely unknown in American law....

Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives....

In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy....

[T]he dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell.... But we have stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”... We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed “potential life.” ... Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by “appeals to a broader right to autonomy.”... It is hard to see how we could be clearer....

We must now decide what standard will govern if state abortion regulations undergo constitutional challenge and whether the law before us satisfies the appropriate standard....

Under our precedents, rational-basis review is the appropriate standard for such challenges....

A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.”... 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 justify Mississippi’s Gestational Age Act.... The Mississippi Legislature’s findings recount the stages of “human prenatal development” and assert the State’s interest in “protecting the life of the unborn.”.... The legislature also found that abortions performed after 15 weeks typically use the dilation and evacuation procedure, and the legislature found the use of this procedure “for nontherapeutic or elective reasons [to be] a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.” ... These legitimate interests provide a rational basis for the Gestational Age Act....

Justice Thomas filed a concurring opinion arguing that "'substantive due process' is an oxymoron that 'lack[s] any basis in the Constitution.'" He goes on to say: "in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.

Justice Kavanaugh filed a concurring opinion emphasizing that the Court's decision does not threaten or cast doubt on substantive due process decisions on non-abortion issues. He also reiterated: "Because the Constitution is neutral on the issue of abortion, this Court also must be scrupulously neutral."

Chief Justice Roberts filed an opinion concurring only in the judgment and saying in part:

I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further— certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered “late” to discover a pregnancy.... I see no sound basis for questioning the adequacy of that opportunity.

But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more....

Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.

Justices Breyer, Sotomayor and Kagan filed a 66-page joint dissenting opinion, saying in part:

The majority tries to hide the geographically expansive effects of its holding. Today’s decision, the majority says, permits “each State” to address abortion as it pleases.... That is cold comfort, of course, for the poor woman who cannot get the money to fly to a distant State for a procedure. Above all others, women lacking financial resources will suffer from today’s decision. In any event, interstate restrictions will also soon be in the offing. After this decision, some States may block women from traveling out of State to obtain abortions, or even from receiving abortion medications from out of State. Some may criminalize efforts, including the provision of information or funding, to help women gain access to other States’ abortion services. Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest....

Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.”... But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all....

[I]n this Nation, we do not believe that a government controlling all private choices is compatible with a free people. So we do not (as the majority insists today) place everything within “the reach of majorities and [government] officials.”... We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once....

Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship....

The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions.

[This post was corrected to make it clear that the Dissent was a Joint Dissent, not a dissent by one Justice joined by the others.]

In Dispute Over Frozen Pre-Embryos, Wife's Religious Concerns Do Not Prevail

In In re Marriage of Olsen,(CO App., June 23, 2022), a Colorado state appellate court was called on to settle a dispute between a husband and wife over the disposition of their cryogenically frozen pre-embryos after their divorce. The wife wanted to donate the pre-embryos, now held by a fertility clinic, for implantation to another couple because of her religious belief that they are human lives. The husband wanted to destroy the pre-embryos to avoid procreation. A 2018 Colorado Supreme Court (In re Marriage of Rooks) in a somewhat similar case called for the balancing of various factors. Applying this precedent, the Court of Appeals awarded the pre-embryos to the husband, saying in part:

The district court erred by considering wife’s religious belief that the pre-embryos are human lives when weighting the first Rooks factor — the intended use of the party seeking to preserve the disputed pre-embryos.... 

The first Rooks factor simply asks what the party seeking to preserve the pre-embryos intends to do with them.... Does that party seek to implant the pre-embryos to achieve genetic parenthood or does that party seek to donate them? The first factor is not concerned with why the party prefers to preserve the pre-embryos over discarding them....

Although we are sensitive to wife’s concern that awarding the pre-embryos to husband will force her to participate in their destruction against her religious beliefs, the district court can enter orders to mitigate this concern. The district court can award husband the pre-embryos and authorize him to direct their disposal. Wife need not be involved in the process.... Because the decision will belong to husband, wife will not be compelled to do anything in violation of her religious beliefs, and therefore there is no Free Exercise violation. 

Another Challenge To School District's Vaccine Mandate Fails

 Doe v. San Diego Unified School District, (SD CA, June 21. 2022), is another attempt by parents and students to challenge the school district's COVID vaccine mandate that does not provide for religious exemptions. The 9th Circuit last year ultimately upheld the school district's prior policy, and the Circuit denied en banc review. The court said in part:

Even Plaintiffs concede that substantively, the new COVID-19 vaccinate mandate is largely the same as before, with a new implementation timeline.... Plaintiffs’ new claims in the FAC are still premised on violations of the Free Exercise Clause, just as the claim in the original complaint was. Accordingly, the Court is bound by the law of this case.

8th Circuit Upholds Arkansas Israel Boycott Certification Requirement

The U.S. 8th Circuit Court of Appeals sitting en banc, in a 9-1 opinion, upheld Arkansas' law requiring public contracts to include a certification from the contractor that it will not boycott Israel.  In Arkansas Times LP v. Waldrip, (8th Cir., June 22, 2022), the court held that the the statute's broad definition of "boycott" as including "other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories" is only a prohibition on non-expressive commercial decisions that are not protected under the First Amendment's free speech clause. The court also held that the required certification from the contractor does not amount to "compelled speech". The suit was brought by a newspaper that contracts with a state college.

Judge Kelley dissented, arguing that the statute was broader than the majority found it to be.  He contended that "other actions intended to limit commercial relations with Israel" could encompass more than just commercial activity, including activity that is protected by the First Amendment.  For example, it might include posting anti-Israel signs, donating to causes that promote a boycott of Israel, encouraging others to boycott Israel, or publicly criticizing the anti-boycott statute. (The en banc decision reverses a decision by a 3-judge panel of the 8th Circuit handed down last year.) The Forward reports on the decision.

French High Court Says City Must Ban Burkinis In Municipal Pools

 CNN reports that on Tuesday, France's highest administrative court, the Council of State, held that the city of Grenoble cannot permit Muslim women to wear the full-length "burkini" bathing suit in its municipal swimming pools. The court said that doing so would compromise principles of religious neutrality and "the equal treatment of users." The court went on to say that the city's initial decision to permit burkinis did so to satisfy religious demands. A French anti-separatism law passed last year prohibits actions whose "manifest objective is to give in to sectarian demands with religious aims."

UPDATE: Here is the full text of the Council of State's opinion in the case.

Louisiana Governor Signs Two "Trigger Laws" On Abortion

On June 17, Louisiana Governor John Bel Edwards signed Senate Bill 342 (full text), amending a 2006 law that banned all abortions except to prevent death or permanent impairment of a life-sustaining organ of the pregnant woman, or in cases of unintentional termination because of medical treatment. The law becomes effective if and when Roe is reversed. The Governor's signing letter (full text) explains the changes that SB 342 made to the 2006  "trigger law":

[T]he list of exceptions to the abortion prohibition ... is expanded to include: (1) when a medical procedure is performed with the intent to save the life or preserve the health of an unborn child, (2) when medical procedures are performed after a pregnant woman miscarries, (3) treatment and removal of an ectopic pregnancy, and (4) when a medical procedure is performed to remove an unborn child with an irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth. Although the ... Bill ... did not add rape and incest to the two existing exceptions ..., it did clarify that pregnancy and the life of an unborn child begin at implantation, rather than at fertilization ..., and clearly allows for emergency contraception to be administered to victims of rape and incest prior to when a pregnancy can be clinically diagnosed.

On June 17, the Governor also signed Senate Bill 388 (full text) to prohibit prescribing or selling in or into the state drugs for medical abortions.  Again, the bill's effectiveness is triggered by the overruling of Roe v. Wade. ABC News reports on the bills. [Thanks to Scott Mange for the lead.]

European Court: Turkey's Refusal To Allow Congregational Muslim Prayer In Prison Violated Religious Freedom

In Yalçın v. Turkey, (ECHR, June 14, 2022), the European Court of Human Rights in a Chamber Judgment held that Turkey violated Article 9 (freedom of religion and belief) of the European Convention on Human Rights by refusing to make a room available for congregational Muslim Friday prayers (Jumuah) at a High-Security Prison. The Court said in part:

... high-security prisons, such as the one in which the applicant was placed, are subjected to a stricter set of rules, which may call for a higher degree of restrictions on the exercise of rights under Article 9 of the Convention. Nevertheless, that fact alone should not be construed as excluding any real weighing of the competing individual and public interests but should rather be interpreted in the light of the circumstances of each individual case....

... domestic authorities did not sufficiently assess whether the gathering of a certain number of inmates for Friday prayers may, in the individual circumstances of the case, generate a security risk that they should have been treated differently from the collective gatherings of inmates for cultural or rehabilitative purposes, which were permitted by law....

The Court issued a press release announcing the decision.

Prosecutor's Ethical Objection To Death Penalty Was Not Reason To Withdraw Execution Warrant

Texas Tribune reports that yesterday a Texas state trial court judge rejected a request submitted jointly by the prosecutor and the defense attorney to withdraw a warrant setting the execution date for convicted murderer John Ramirez for October 5. The request to withdraw the execution date came two days after the court set it. District Attorney Mark Gonzalez said that he is ethically opposed to the death penalty and did not want the death penalty imposed on any prisoner while he is in office. An assistant district attorney had filed the request to set the execution date without conferring with Gonzalez. An appeal is planned. Ramirez was the petitioner in a RLUIPA case decided by the U.S. Supreme Court last year holding that he was entitled to a preliminary injunction barring Texas from proceeding with his execution without permitting his pastor, during the execution, to lay hands on the him and audibly pray with him. (See prior posting.)

Japanese Court Upholds Ban On Same-Sex Marriage

NPR reports that in Japan on Monday, the Osaka District Court ruled that the country's ban on same-sex marriage does not violate Japan's Constitution, rejecting plaintiffs' demand for damages of 1 milliion Yen ($7400 (US))

The Osaka court on Monday said freedom of marriage in the 1947 constitution only means male-female unions and does not include those of the same sex, and therefore banning same-sex marriages is not unconstitutional.

Judge Fumi Doi said marriage for heterosexual couples is a system established by society to protect a relationship between men and women who bear and raise children, and that ways to protect same-sex relationships are still undergoing public debate.

The court, however, urged the parliament to seek methods to better protect same-sex relationships, including options to legalize same-sex marriage.

The decision is contrary to a ruling in 2021 by a court in Sapporo.

Supreme Court Says Maine Cannot Exclude Sectarian Schools From Its Tuition Reimbursement Program

In Carson v. Makin, (Sup. Ct., June 21, 2022), in a 6-3 decision, the U.S. Supreme Court held that Maine's program that pays tuition (up to a statutory limit) to out-of-district public or private high schools for students whose districts do not operate a high school, but which requires participating schools to be nonsectarian, violates the Free Exercise Clause. The majority opinion by Chief Justice Roberts says in part:

The State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise....

Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.

Justice Breyer, joined by Justice Kagan and for the most part by Justice Sotomayor, filed a dissenting opinion which says in part:

Nothing in our Free Exercise Clause cases compels Maine to give tuition aid to private schools that will use the funds to provide a religious education.... [T]his Court’s decisions in Trinity Lutheran and Espinoza prohibit States from denying aid to religious schools solely because of a school’s religious status—that is, its affiliation with or control by a religious organization.... But we have never said that the Free Exercise Clause prohibits States from withholding funds because of the religious use to which the money will be put....

Maine’s decision not to fund such schools falls squarely within the play in the joints between those two Clauses. Maine has promised all children within the State the right to receive a free public education. In fulfilling this promise, Maine endeavors to provide children the religiously neutral education required in public school systems.... The Religion Clauses give Maine the ability, and flexibility, to make this choice. 

Justice Sotomayor also filed a dissenting opinion which says in part:

This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.... 

If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens.

CNN reports on the decision.

Supreme Court Denies Review In Challenge To California Time Extension For Sex Abuse Claims

The U.S. Supreme Court today denied review in Roman Catholic Bishop of Oakland v. Superior Court of the State of California, (Docket No. 21-1377, certiorari denied 6/21/2022). (Order List.) In the case, 9 dioceses and archdioceses challenged 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. Here is the Supreme Court case page.

South Carolina Adopts Law Protecting Conscience Rights Of Health Care Personnel and Institutions

As reported by WPDE News, on Friday South Carolina Governor Henry McMaster signed H4776, the Medical Ethics and Diversity Act (full text). The new law provides in part:

A medical practitioner, health care institutions, and health care payers have the right not to participate in or pay for any health care service which violates the practitioner's or entity's conscience....

... [A] religious medical practitioner, health care institutions, and health care payers that hold themselves out to the public as religious, state in their governing documents that they have a religious purpose or mission, and have internal operating policies or procedures that implement their religious beliefs, have the right to make employment, staffing, contracting, and admitting privilege decisions consistent with their religious beliefs....

No physician, nurse, technician, medical student, or other employee of a hospital, clinic or physician shall be required to recommend, perform or assist in the performance of an abortion if he advises the hospital, clinic or employing physician in writing that he objects to performing, assisting or otherwise participating in such procedures.

Belgian Regional Parliament Votes Down Ban On Kosher and Halal Slaughter

JTA reports that in the only portion of Belgium where kosher and halal slaughter is still legal, an attempt to ban those forms of slaughter (i.e. slaughter without first stunning the animal) failed:

The vote Friday in the parliament of the Brussels-Capital Region ... was on whether to scrap a bill proposing a ban. The bill, submitted by liberal and environmentally-centered parties, had been voted down in a committee that kicked it back to parliament.

Out of the 89 lawmakers in the region’s parliament, 42 voted in favor of scrapping, 38 voted against scrapping, eight abstained and one was not present, preserving for now the legality of kosher and halal slaughter in Brussels....

7 USCIRF Commissioners Appointed In Recent Weeks

The U.S. Commission on International Religious Freedom is comprised of 9 voting members-- 3 appointed by the President, 3 by the Senate and 3 by the House, under a formula that gives the President's political party 5 commissioners and the other party 4 commissioners. Commissioners are appointed for 2-year terms.  In recent weeks, seven Commissioners have been appointed or reappointed: Frederick A. Davie (April 27 press release); Nury Turkel, Frank R. Wolf and David G. Curry (May 13 press release);  Abraham Cooper and Eric Ueland (June 10 press release); Stephen Schneck (June 15 press release).

Recent Articles and Reports of Interest

From SSRN:

• Bethany Berger & Chloe Scherpa, Mohegan Women, the Mohegan Church, and the Lasting of the Mohegan Nation, (June 12, 2022).
• Cherian George, Analytical and Normative Frameworks for Studying Religious Nationalism, (May 30, 2022).
• Mark Friedman & Anthony Sangiuliano, Limiting Rights to Protect Morality: Upholding Charter Values as a Pressing and Substantial Objective, (Review of Constitutional Studies, vol. 26, no. 1 (2022)).
• Dustin N. Sharp, A Larger 'We'; Social Change and Spirituality in an Identitarian Age, (June 10, 2022).
• Taimoor Ali Shah, The Concept of Law, Justice and Morality in Islamic and Western Jurisprudence, (June 7, 2022).
• Muhammad Munir, Dower in Islamic Law and Pakistani Legal System, (June 2, 2022).

From elsewhere:

• ADL Report, Hate in the Empire State: Extremism & Antisemitism in New York, 2020-2021.

Iowa Supreme Court Overrules 2018 Decision That State Constitution Strongly Protects Abortion Rights

In a complicated set of opinions that span 182 pages, the Iowa Supreme Court overruled their own 2018 decision (referred to in the opinion as "PPH II") and held by a vote of 5-2 that neither the due process nor the equal protection clause of Iowa's constitution grants a fundamental right to an abortion. It thus rejected subjecting abortion regulation-- here a new 24-hour waiting period-- to strict scrutiny under the state Constitution. However the court did not decide what level of scrutiny should apply.  This left the standard to be the undue burden test imposed by federal law. In Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Sup. Ct., June 17, 2022), Justice Mansfield's majority opinion said in part:

[Law] professors [in an amicus brief] urge that adhering to a precedent when the membership of a court changes “refutes the cynical view that a supreme court is a political institution guided by the justices’ personal values, rather than the law.” But we know that the professors do not share that cynical view, so why do they ask us to act in fear of it? Shouldn’t we instead follow our solemn oaths to uphold the Iowa laws and constitution? In the end, court decisions should be—and we believe are—judged by the strength of their reasoning, not by the identity of the persons who wrote or joined them....

Constitutions—and courts—should not be picking sides in divisive social and political debates unless some universal principle of justice stands on only one side of that debate. Abortion isn’t one of those issues....

In summary, PPH II lacks textual and historical support. It is doctrinally inconsistent with prior Iowa jurisprudence concerning family rights that followed a balancing approach. Its rhetoric is one-sided. Its constitutional footing is unsound. While it is true that some other states have provided heightened protection for abortion rights, they have done so by invoking more relevant substantive constitutional guarantees—such as the right of privacy—not a procedural clause like due process.....

While 5 Justices concurred in that conclusion, 2 of those Justices in an opinion by Justice McDermott disagreed with the instructions on remand given in Justice Mansfield's opinion, saying in part:

I join almost all parts of the court’s opinion, including...  its overruling of ... PPH II.... But I dissent from my colleagues’ remand directing the district court to apply an “undue burden” standard, subject (apparently) to the standard being “litigated further” by the parties. In my view, we should emphatically reject—not recycle—Casey’s moribund undue burden test and instead direct the district court to apply the rational basis test to the plaintiffs’ constitutional challenge.

Chief Justice Christensen filed an opinion dissenting in part, saying: 

Out of respect for stare decisis, I cannot join the majority’s decision to overrule ... PPH II ... because I do not believe any special justification “over and above the [majority’s] belief ‘that the precedent was wrongly decided’ ” warrants such a swift departure from the court’s 2018 decision....

Since 2018, the makeup of our court has significantly changed with the appointment of four new justices to replace outgoing justices. Coincidentally, all four outgoing justices were part of the 5–2 majority that recognized a fundamental right to decide whether to continue or terminate a pregnancy in the 2018 case.

Justice Appel, who is the only Justice on the court who was part of the majority in 2018, filed an 88-page dissent, concluding in part:

The majority has chosen to simply rule that strict scrutiny is not the applicable test of a statute regulating abortion ... and has remanded the case to the district court for further consideration of other issues. The problem with this approach is twofold. First, the majority opinion grossly understates the importance of this life-changing abortion decision on women. Second, the majority opinion eliminates a strong, workable, and widely accepted barrier to governmental intrusion into the reproductive choices of a woman and invites us to stare into the standard-less abyss....

I have some thoughts to seek to salvage what can be salvaged from the decision. First, the district court must recognize the rights primacy of the Iowa Constitution and reject summarily a rational basis test, which is too often no test at all. Second, if a version of the undue burden test is to be adopted, it must be with teeth.

Des Moines Register reports on the decision. [Thanks to Scott Mange for the lead.]

Ecclesiastical Abstention Doctrine Bars Mississippi Courts From Adjudicating Claims Of Fired Diocese Finance Officer

In Catholic Diocese of Jackson, Mississippi v. DeLange, (MS Sup. Ct., June 16, 2022), the Mississippi Supreme Court held that the ecclesiastical abstention doctrine prevents Mississippi courts from adjudicating wrongful termination, defamation and infliction of emotional distress claims brought by the former Finance officer of the diocese.  Plaintiff was given several reasons for his termination by the bishop. Under the Code of Canon Law, the Finance officer can be removed only for "grave cause." Plaintiff claimed that the reasons given for his termination were false. The court said in part:

 ... de Lange argues that his request merely asks a court to determine the truthfulness of the reasons given by the Diocese for his termination. De Lange insists that a civil court will not be required to interpret the Code of Canon Law. We disagree.

Even if the Diocese’s reasons were found to be based on falsehoods, and we are making no such determination, a reason existed for de Lange’s termination. That is, there was some reason for his termination, whether it is one of the reasons cited by the Diocese or, perhaps, it is simply the apparent incompatibility that existed between de Lange and Bishop Kopacz. Whatever that reason may be and regardless of the strength of that reason, the request that de Lange now makes ... would ultimately require judicial interpretation of what constitutes “grave cause” under the Code of Canon Law....  Such an interpretation is off limits for a civil court to make.

Parents' Group Says Infrastructure Appropriations To Private Schools Violate Mississippi Constitution

A parents' organization has filed suit in a Mississippi state trial court challenging two Mississippi laws that together appropriate $10 million for grants to private or nonpublic schools for water, sewer and broadband infrastructure projects.  The appropriated funds come from federal Coronavirus State Fiscal Recovery Funds received under the American Rescue Plan. The complaint (full text) in Parents for Public Schools v. Mississippi Department of Finance and Administration, (MS Chancery Ct., filed 6/15/2022), contends that the Mississippi laws violate Section 208 of the Mississippi Constitution that provides:

No religious or other sect or sects shall ever control any part of the school or other educational funds of this state; nor shall any funds be appropriated toward the support of any sectarian school, or to any school that at the time of receiving such appropriation is not conducted as a free school.

The Mississippi ACLU issued a press release announcing the filing of the lawsuit. 

9th Circuit Hears Oral Arguments In Tribe's Challenge To Geothermal Project

On Wednesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Fallon Paiute-Shoshone Tribe v. U.S. Department of the Interior (video of full oral arguments). In the case, in a January 14, 2022 opinion (full text) a Nevada federal district court, among other things, rejected a claim by the Fallon Paiute-Shoshone Tribe that construction of a geothermal facility will violate their rights under the Religious Freedom Restoration Act. The district court held that plaintiffs' claim that the project destroys the Tribe's ability to exercise its religious traditions is not enough to amount to a "substantial burden" on religious exercise. Desecration of a sacred area does not coerce Tribe members to act contrary to their religion. A conservation organization is also a plaintiff in the case. (See prior related posting.)  Nevada Current reports on this week's oral arguments.

President Issues Executive Order On Equality For LGBTQI+ Individuals

President Biden yesterday issued an Executive Order on Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals. (Full text). The Order sets out a long list of initiatives to be undertaken by various Cabinet departments and federal agencies. These include using federal authority to counter state laws which limit access to medically necessary care, reducing the risk of exposure to conversion therapy, and strengthening non-discrimination protections.  The Order also focuses on support for LGBTQI+ individuals in schools, housing programs, family counseling and health care.

Yeshiva University Must Recognize LGBTQ Student Group

In YU Pride Alliance v. Yeshiva University, (NY Cty. Sup.Ct., June 14, 2022), a New York state trial court held that New York City's public accommodation law requires Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance.  The University must immediately grant the organization the full and equal treatment accorded to other student organizations.  The court rejected the University's claim that it is exempt from coverage under the definitions in NY Admin Code §8-102 which excludes from coverage a "religious corporation incorporated under the education law."  While Yeshiva University is incorporated under the education law, according to the court:

Yeshiva's organizing documents do not expressly indicate that Yeshiva has a religious purpose. Rather, Yeshiva organized itself as an "educational corporation" and for educational purposes, exclusively.... [T]he inquiry must focus on the purpose of the institution, which is typically expressed in a corporation's organizing documents. There may be schools organized under the education law that have a stated religious purpose so that they are exempt.... Since Yeshiva has not done so, the court does not need to reach this issue.

The court went on to hold that applying the public accommodation provisions of the New York City Human Rights Law to Yeshiva does not violate its First Amendment free exercise or free speech rights, saying in part:

Assuming arguendo that Yeshiva's refusal to recognize an LGBTQ student group is part of its exercise of religion, the NYCHRL's impact on Yeshiva's exercise of religion is only incidental to the NYCHRL's ban on discrimination. There can be no dispute that the NYCHRL is a neutral law of general applicability. It does not target religious practice....

... Yeshiva's Free Speech rights will not be violated by application of the NYCHRL. Formal recognition of a student group does not equate with endorsement of that group's message....

Washington Examiner reports on the decision.

New Jersey Township Settles RLUIPA Zoning Case With DOJ

The Department of Justice announced yesterday that a proposed Consent Order (full text) has been filed with a New Jersey federal district court in United States v. Township of Jackson, (D NJ, filed 6/15/2022). According to the Justice Department:

[The order] would resolve a lawsuit the United States filed in May 2020 alleging that the Township and Planning Board passed zoning ordinances that broadly prohibited religious schools and banned schools with dormitories, both of which are important to providing religious education within the Orthodox Jewish community. The complaint alleged that the intent of the ordinances was to prevent Orthodox Jewish schools from opening in the Township and thereby dissuade members of that community from living in or moving to Jackson....

The consent order requires Jackson Township to repeal the remaining active discriminatory ordinance and replace it with an ordinance that will allow religious elementary and secondary schools, religious higher learning institutions and religious residential schools. The consent order also requires that the new zoning ordinance treat religious schools equally with non-religious institutions that operate in the Township.

Also, the Township must pay a $45,000 civil penalty and pay $150,000 into a settlement fund.

Meat Processor Is Not State Actor In Requiring COVID Vaccination of Employees

In Reed v. Tyson Foods, Inc., (WD TN, June 14, 2022), a Tennessee federal district court dismissed plaintiffs' claims that their rights under RFRA and free exercise clause were violated when their employer required them to be vaccinated against COVID.  The court held that plaintiffs were not state actors, even though the President had invoked the Defense Production Act and instructed meat and poultry procession plants to continue operations.  The court said in part:

Plaintiffs contend that Defendant acted as an “agent of the government … by imposing strict worker vaccination rules to (in the estimation of the federal government), in order to preserve the integrity of the national food supply.”... However, no facts are pled that would enable the Court to find a sufficient nexus between Defendant’s vaccine policy and the involvement of the Government. The mere fact that Defendant relied on OSHA and CDC guidance in formulating its vaccine policy does not make Defendant an “agent of the government.” Nor does the fact that Defendant is subject to the federal government’s COVID-19 guidance for meat and poultry plants convert Defendant into a government actor.

The court also dismissed several other, but not all, of plaintiffs' additional claims.

Synagogue Sues In Challenge To Florida's Restrictive Abortion Law

Suit was filed last week in a Florida state trial court by a Palm Beach County synagogue challenging Florida's recently enacted 15-week abortion ban. The complaint (full text) in Generation to Generation, Inc. v. Florida, (FL Cir. Ct., filed 6/10/2022) contends that the law violates the free exercise, establishment, right to privacy, due process and equal protection provisions of the Florida Constitution.  The complaint alleges in part:

40. Some women, such as the members, congregants, supporters of Plaintiff L’Dor Va-Dor and their families have an abortion because it is required by their religious faith.  For Jews, all life is precious and thus the decision to bring new life into the world is not taken lightly or determined by state fiat.  In Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act.  As such, the Act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom.....

71. The Jewish people have often borne the brunt of the horrors that occur when the power of Christianity has merged with the power of the state.  The result has been Inquisitions, Crusades, ghettoes and pogroms for the Jews and the eventual loss of freedom for everyone else.... 

72.  The architects of the Act have taken a first step towards the dismantling of that wall and returning the state of Florida and our nation back to a time when the merger of Christianity and government produced genocide, slavery, misogyny, and the denial of equal rights and in many cases, any rights at all to those who did not share the gender, race or religion of those in power.

Jews for a Secular Democracy issued a press release announcing the filing of the lawsuit.

German Federal Court Refuses To Order Removal Of Medieval Antisemitic Sculpture

As reported by AP, Germany's Federal Court of Justice yesterday refused to order a Wittenberg church where Martin Luther once preached to remove a 730-year old antisemitic sandstone relief carved on the outside of the church. The sculpture is known as the "Judensau" or "Jew pig".  A display explaining the history of antisemitism in Germany was added in 1988. While the full opinion is not yet online, the Court issued a press release summarizing the Court's decision. The press release describes the sculpture:

It shows a sow whose teats are being suckled by two people who are identified as Jews by their pointy hats. A person, who can also be identified as a Jew by his hat, lifts the sow's tail and looks into her anus. In 1570, the inscription "Rabini Shem Ha Mphoras" was placed over the sow, based on two anti-Judaist writings published by Martin Luther in 1543.

The press release also summarizes the Court's holding that while the sculpture was originally "massively defamatory," a bronze base and and a nearby display added in 1988 remedied the situation:

From the authoritative point of view of an unbiased and reasonable observer, it has ... converted [the sculpture] into a memorial for the purpose of commemoration and remembrance of the centuries-long discrimination and persecution of Jews up to the Shoah and distanced itself from the defamatory and anti-Jewish statement - as expressed in the relief when viewed in isolation.

State Department Issues International Religious Freedom Report

On June 2, the State Department issued its annual Report to Congress on International Religious Freedom.  Issued in accordance with the International Religious Freedom Act of 1998, the Report describes the status of religious freedom in nearly 200 foreign countries. The 2000-page Report is available on the State Department's website only in a format that allows the reader to choose one country at a time and read the report on that nation.  Appendices to the Report, also available on the website, give additional information on the legal framework that attempts to assure religious freedom internationally. Secretary of State Blinken and Ambassador At Large for International Religious Freedom Rashad Hussain delivered remarks (full text) on the release of the Report, highlighting issues in a number of  nations.  Ambassador Hussain said in part:

I’d like to lay out three key themes in the report.

First, too many governments use discriminatory laws and policies and abuse their own people. We have seen two genocides of religious minority communities in recent years – in China and in Burma.

Second, rising societal intolerance and hatred are fueling violence and conflict around the world. Governments must not sit silent or stand idly by in the face of such oppression.

Third, powerful collaboration among civil society, governments, and multilateral partners has led to some progress and provides hope in addressing these complex challenges.

European Court: Lithuania Should Have Provided Civilian Service Alternative To Jehovah's Witness

In Teliatnikov v. Lithuania, (ECHR, June 7, 2022), the European Court of Human Rights in a Chamber Judgment held that Lithuania violated Article 9 (freedom of thought, conscience and religion) of the European Convention On Human Rights when it refused to grant a Jehovah's Witness deacon alternative service under civilian control. The petitioner has religious objections to military service or any alternative service controlled, supervised or directed in any way by the military, or which supports military activity. Lithuania only provides alternative national defense service under military supervision. The court concluded:

the Court finds that the system in Lithuania failed to strike a fair balance between the interests of society and those of the applicant who has deeply and genuinely held beliefs.

The court also issued a press release summarizing the decision.

Title VII 90-Day Right To Sue Runs From Receipt Of Email, Not From Opening It

In Paniconi v. Abington Hospital- Jefferson Health, (ED PA, May 24, 2022), plaintiff, a 62-year-old white woman and a born-again Christian had filed a race and religious discrimination claim against her employer with the EEOC.  The EEOC sent both plaintiff and her attorney a right-to-sue letter on Sept. 8, 2021, but sent it through an e-mail which merely told the recipients to check their EEOC portal for an important document.  The e-mail to the attorney did not list the client's name or indicate that the important document was a right-to-sue letter. Title VII requires suit to be filed within 90 days after receipt of the right-to-sue letter.  Plaintiff's attorney did not access the portal or download the letter until Sept. 13.  Suit was filed on December 8, which is 91 days after receipt of the e-mail.  The court dismissed the suit, rejecting the argument that the 90-day period should run from the date the attorney accesses the portal and downloads the letter. Instead it held that the 90-day period runs from the date the e-mail reaches the attorney's inbox. JD Supra reports on the decision.

10th Circuit Affirms Dismissal Of Church's Complaint Regarding Sending Of Material To Inmates

 In Colorado Springs Fellowship Church v. Williams, (10th Cir., June 13, 2022), the U.S. 10th Circuit Court of Appeals rejected a church's challenge to prison rules that barred it from sending DVD's directly to inmates. Religious organizations could only send religious materials to the Bureau of Prisons which would them make them available to all inmates. The district court had dismissed the church's Establishment Clause claim. On appeal, the court refused to consider the church's argument that the Turner standard does not apply to free speech and free exercise claims brought by non-prisoners because the church had not made that argument to the district court below. The church had also failed to allege that it was treated differently than other religious groups.

11th Circuit: Jail's Procedure For Passover Participation Is Upheld

In Dorman v. Chaplain's Office BSO, (11th Cir., June 10, 2022), the U.S. 11th Circuit Court of Appeals upheld the procedures used by the Broward County, Florida jail that required inmates to register 45 days in advance in order to participate in Passover services and meals.  The court said in part:

First, the 45-day registration requirement did not constitute a substantial burden on Mr. Dorman’s exercise of his Jewish faith under the RLUIPA, and therefore it also did not violate the First Amendment’s more lenient reasonableness standard. Second, the electronic posting of the 45-day registration requirement on the Jail’s computer kiosk, which he and other inmates used to communicate with Jail staff, provided adequate notice of the registration requirement to satisfy due process.

Recent Articles of Interest

From SSRN:

• Katharine Young, Book Review: Adam Chilton and Mila Versteeg, How Constitutional Rights Matter, New York: Oxford University Press, 2020, (Journal of Legal Education Vol. 70, No. 1 (Fall 2020)).
• Mingyu Jun, The Best Interests of Children Overlooked: Should Faith Based Agencies Be Forced Out?, (CSLR Research Paper No. 2.2022-ESS (2022)).
• Abdullahi Ahmed An-Na'im, Autobiographical Reflections,  (Emory International Law Review 36, No. 4 (2022)).
• Alexis Ahlzadeh, Prisoner’s Religious Exercise Rights (or Lack Thereof) under RLUIPA: The Search for a Workable Standard,  (CSLR Research Paper No. 2.2021-ESS (2021).
• Silas W. Allard, A Constellation of Foundings: Chae Chan Ping, Chinese Exclusion, and the Making of America, (CSLR Research Paper No. 9.2022-AFF (2022).
• Franciszek Longchamps de Berier & Rafael Domingo Osle, Introduction to Law and Christianity in Poland: The Legacy of the Great Jurists, (May 29, 2022).
• Samuel Weaver, Protecting Unbelief: Restoring Section Five of Kentucky's Constitution, (Kentucky Law Journal, Vol. 110, No. 1, 2021).
• Mustapha Abdullah Kuyateh, Assessing the Relevance of a Muslim Family in the Modern Environment: A Review, (June 2, 2022).

From SSRN (Abortion Rights):

• Ellis Adler, The Alabama Human Life Protection Act: A Jewish Law Perspective, (CSLR Research Paper No. 1.2021-ESS (2021).)
• Henry (Hank) T. Greely, The Death of Roe and the Future of Ex Vivo Embryos, (J. Law & Biosciences, 9(1) (Forthcoming summer 2022)).
• Benjamin Davis, Sanctimonious Barbarity: The Forced Pregnancy Alito Draft, (May 23, 2022).
• Greer Donley & Jill Wieber Lens, Abortion, Pregnancy Loss, & Subjective Fetal Personhood, (Vanderbilt Law Review, Vol. 75, Forthcoming).

From SSRN (International Human Rights):

• Aditi Mohapatra, Nabanita Pattanayak & Pallavi Panda, Loving Without Boundaries: The Struggle For Same-Sex Marriage Equality On An International Level, (Indian Journal of Law and Legal Research, Volume IV Issue II (2022)).
• Juan Pablo Perez Leon Acevedo & Thiago Felipe Alves Pinto, Disentangling Law and Religion in the Rohingya Case at the International Criminal Court, ((2021) 39:4 Nordic Journal of Human Rights 458-480).
• Shadrack Bentil, Soft Violence: Wicked Hurdles Driving Systemic Discrimination Against Rohingya Children in Myanmar?, (June 1, 2022).
• Stephen A. Rosenbaum, 'Legal Capacity' Under the UN Convention on the Rights of Persons with Disabilities: In Support of Supported Decision-Making, (Forthcoming, 3 Islamic Studies on Human Rights & Democracy _ (2022)).

From SmartCILP:

• Rosalind Dixon, Strong Courts: Judicial Statecraft in Aid of Constitutional Change, 59 Columbia Journal of Transnational Law 298-363 (2021).
• Jonathan K. Van Patten, The Trial of John Scopes, 66 South Dakota Law Review 273-337 (2021).

Challenges To New Jersey's Assisted Suicide Act Are Rejected

In Petro v. Platkin, (NJ App., June 10, 2022), a New Jersey state appellate court dismissed constitutional challenges to New Jersey's Medical Aid in Dying for the Terminally Ill Act.  It held the plaintiffs-- a terminally ill resident, a physician and a pharmacist-- lack standing because their participation in the procedures permitted by the Act are completely voluntary.  The court also rejected claims that the statute violates the "single object" requirement of the state constitution or state constitutional provisions on the right to enjoy and defend life. It also rejected 1st Amendment free exercise claims, finding that the statute is a neutral law of general applicability.

Christian Mission's Suit Over Sex Offender Statute Is Moot

In City Union Mission, Inc. v. Sharp, (8th Cir., June 10, 2022), the U.S. 8th Circuit Court of Appeals affirmed the dismissal of a suit brought by an organization that offers meals, shelter and a Christian Life Program for men seeking help with life skills and addiction. At issue was whether a state statute barring sex offenders from being present or loitering within 500 feet of a children's playground is constitutional. The court held that the statute does not apply to the Mission because it does not allege that its clients are loitering when they are receiving services. Therefore its suit seeking an injunction is moot.  Its claim for damages against the former sheriff who enforced the statute were dismissed on qualified immunity grounds. The court said in part:

we can find no “controlling case” or “robust consensus of cases of persuasive authority” that would have notified Sheriff Sharp that Affected Persons had a clearly established right to seek City Union Mission’s services in a building located within 500 feet of a park containing playground equipment.

Judge Kobes filed a concurring opinion.

School Lacks Standing To Sue For Students' and Parents' Distress From Anti-Abortion Pickets

In Nicdao v. Two Rivers Public Charter School, (DC Ct. App., June 9, 2022), the District of Columbia's local Court of Appeals held that a school's suit for intentional infliction of emotional distress should be dismissed for lack of standing.  At issue was intrusive protests by three individuals who were opposing the construction of a Planned Parenthood clinic next door to the school.  The court held that the school lacked third-party standing to sue on behalf of parents and students who were injured. Financial hurdles making it difficult for the injured parties to sue are insufficient here justify third-party standing. The court also dismissed plaintiff's private nuisance and conspiracy claims. Liberty Counsel issued a press release announcing the decision.

European Court Says Russia Violated Rights of Jehovah's Witnesses

In a 6-1 Chamber Judgment in Taganrog LRO and Others v. Russia, (ECHR, June 7, 2022), the European Court of Human Rights held that Russia's forced dissolution of Jehovah’s Witnesses religious organizations, banning of Jehovah's Witness religious literature and international website on charges of extremism, banning distribution of their religious magazines, criminal prosecution of individual Jehovah’s Witnesses, and confiscation of their property violate protections for freedom of religion, expression and assembly found in Articles 9, 10 and 11 of the European Convention on Human Rights, as well as other protections. The Court said in part:

152. The first ground for declaring the Taganrog LRO to be an “extremist” organisation was the charge that its texts stoked religious hatred by casting “traditional” Christian denominations in a negative light, undermining respect for their religious figures, urging people to leave those religions, and proclaiming the superiority of the religion of Jehovah’s Witnesses....

153.  The Court reiterates that preference for one’s own religion, the perception of it as unique and the only true one or as a “superior explanation of the universe” is a cornerstone of almost any religious system, as is the assessment of the other faiths as “false”, “wrong” or “not conducive to salvation”....  In the absence of expressions that seek to incite or justify violence or hatred based on religious intolerance, any religious entity or individual believers have the right to proclaim and defend their doctrine as the true and superior one and to engage in religious disputes and criticism seeking to prove the truth of one’s own and the falsity of others’ dogmas or beliefs....

154.  ... [I]n a pluralist and democratic society, those who exercise their right to freedom of religion ... cannot reasonably expect to be shielded from exposure to ideas that may offend, shock or disturb. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.... Religious people may be genuinely offended by claims that others’ religion is superior to theirs. However, just because a remark may be perceived as offensive or insulting by particular individuals or groups does not mean that it constitutes “hate speech”....

The Court also issued a press release summarizing the lengthy opinion. 

Colorado Imposes Reporting Requirements On Health Care Sharing Ministries

Yesterday, Colorado Governor Jared Polis signed House Bill 22-1269 (full text) into law. The law requires health care sharing ministries to file detailed annual reports with the Commissioner of Insurance. Colorado Politics reports on the bill.

Free Exercise Challenge To New Mexico COVID Orders Moves Ahead

McKinley v. Grisham, (D NM, June 7, 2022), involves various challenges to Executive Orders and Public Health Orders issued by New Mexico officials in response to the COVID pandemic. While most of the challenges were dismissed, the court allowed plaintiffs to move ahead with their free exercise challenge to restrictions on in-person gatherings at houses of worship. The court said in part:

Some New Mexico public health orders treated comparable secular activities more favorably than religious exercise. For example, the April 11, 2020, public health order allowed essential businesses 20% occupancy capacity but prohibited mass gatherings in a church, synagogue, mosque or other place of worship....

Taking the allegations as true, it is plausible that the Plaintiffs state a freedom of religion claim. Therefore, whether the public health orders survive strict scrutiny is a factual inquiry that cannot be resolved on this Motion. For the above reasons, Plaintiffs alleged a plausible freedom of religion claim, and this Count cannot be dismissed at this stage.

9th Circuit OK's Refusal To House Muslim Inmate Only With Co-Religionists

 In Al Saud v. Days, (9th Cir., June 8, 2022), the U.S. 9th Circuit Court of Appeals rejected claims under RLUIPA and the 1st Amendment brought by a Muslim inmate who sought to be housed only with other Muslim inmates. He contends he is currently unable to pray five times per day as required by his religion because inmates with whom he is now housed harass him when he prays. The court summarized the holding in part as follows:

Al Saud’s RLUIPA claim failed because denying his request to be housed only with Muslims was the least restrictive means of furthering a compelling governmental interest. The panel concluded that the outcome of this case was largely controlled by Walker v. Beard, 789 F.3d 1125 (9th Cir. 2015), which held that a prison could deny a prisoner’s religious accommodation when he sought to be housed with only white people. Because both race and religion are suspect classes, the likelihood that equal protection liability would flow from housing prisoners based on religion was substantially identical to the likelihood of liability for housing prisoners based on race and, therefore, was sufficient to serve as a compelling interest.

Universal Life Church Prevails In Pennsylvania Settlement Over Conducting Marriages

In Universal Life Church Monastery Storehouse v. McGeever, (WD PA, June 6, 2022), a Pennsylvania federal district court issued an Order based on a agreed settlement by the parties. The Order bars Allegheny County court personnel from telling members of the public that Universal Life Church ministers cannot solemnize marriages in Pennsylvania. the Order reads in part:

[A] government policy or practice that applies 23 Pa. Cons. Stat. Ann. § 1503 in a manner that denies, discourages, or otherwise chills the religious practice of the Universal Life Church and its ministers by proclaiming that Universal Life Church ministers have no legal authority to solemnize marriages under 23 Pa. Cons. Stat. Ann. §1503(a)(6) would violate the First and Fourteenth Amendments to the United States Constitution by (a) preferring certain religions over others in violation of the Establishment Clause, (b) burdening the Universal Life Church’s and its members’ religious practices in violation of the Free Exercise Clause, and (c) discriminating against the Universal Life Church and its members in violation of the Equal Protection Clause, to the extent the policy or practice treats Universal Life Church ministers less favorably than those similarly situated.

GoSkagit reports on the court order.

10th Circuit: No Interlocutory Appeal Of Ministerial Exception Determination

 In Tucker v. Faith Bible Chapel International, (10th Cir., June 7, 2022), the U.S. 10th Circuit Court of Appeals, in a 2-1 decision, held that interlocutory appeals from the denial of a ministerial exception defense are not permitted.  The 50-page majority opinion said in part:

the “ministerial exception” is an affirmative defense to employment discrimination claims, rather than a jurisdictional limitation on the authority of courts to hear such claims....

In the case, a former high school teacher and administrator/ chaplain contends that he was fired for opposing alleged racial discrimination by a Christian school.

Judge Bacharach filed a 44-page dissent, saying in part:

The ministerial exception also advances values of a high order, protecting religious bodies from burdensome litigation over religious doctrine and preserving the structural separation of church and state. These values compel courts to resolve application of the ministerial exception at an early stage of the litigation.

EEOC Sues Restaurant For Failing To Accommodate Employee's Church Attendance

The EEOC announced this week that it has filed suit against Del Frisco’s of Georgia, an Atlanta restaurant, for refusing to accommodate an employee's religious beliefs. The EEOC alleges:

[T]he employee requested and was granted an accommodation of not working on Tuesday evenings and Sunday mornings so she could attend prayer and church services. Del Frisco’s scheduled the employee to work on Tuesday, Dec. 31, 2019, in conflict with her existing religious accommodation and her need to attend prayer services that evening. The employee reminded her supervisors of her religious conflict, but she was not taken off the schedule. When the employee did not appear for work on that day, Del Frisco’s fired her.

Court Resolves Details Of Last Rites During Inmate's Execution

In Atwood v. Shinn, (D AZ, June 6, 2022), an Arizona federal district court entered a preliminary injunction detailing the manner in which a Greek Orthodox priest could administer last rites to a prisoner before and during the prisoner's execution by lethal injection.  The state consented to many of the provisions of the injunction. However the court, relying on RLUIPA as a basis, resolved the remaining areas of disagreement: (1) The inmate may be in a wheelchair rather than a restraint chair so he can fully participate in the tonsure ceremony; (2) the priest may be at the inmate's head during the execution so he can place a priestly stole over his head.

New York Court Reaffirms Its Decision Upholding Required Coverage For Medically Necessary Abortions

In Roman Catholic Diocese of Albany v. Vullo, (NY App., June 2, 2022), a New York intermediate appellate court, in a case on remand from the U.S. Supreme Court, reaffirmed its holding rejecting a challenge by several religious organizations and other plaintiffs to a New York administrative regulation  requiring health insurance policies in New York to provide coverage for medically necessary abortion services. (See prior posting) The U.S. Supreme Court had vacated the original judgment and remanded the case for further consideration in light of Fulton v. Philadelphia. (See prior posting.)

NY School Districts Not Required To Provide Bussing For Religious Schools On Days Public Schools Are Closed

In In the Matter of United Jewish Community of Blooming Grove, Inc. v. Washingtonville Central School District, (NY App., June 2, 2022), a New York state appellate court held that under New York statutory law, school districts are not required (but are permitted) to provide bus transportation to non-public school students on days when those schools are in session but public schools are closed. The suit was brought seeking to require the school district to provide transportation to students in Jewish schools in Kiryas Joel on all days when those schools were open.

Recent Articles of Interest

From SSRN:

• Alex Deagon, Creating Peaceful Coexistence Through Virtue: A Theological Approach to Institutional Religious Freedom, Equality and the First Amendment , (Liberty & Law Center Research Paper No. 22-01 (2022).
• Steven Douglas Smith, The Church in the Twilight, (Liberty & Law Center Research Paper No. 22-02 (2022)).
• Elizabeth Clark, The Impact of Religion and Religious Organizations, (Liberty & Law Center Research Paper No. 22-03 (2022).
• Helen M. Alvare, Families, Schools, and Religious Freedom,      (Liberty & Law Center Research Paper No. 22-05 (2022).
• Gerard V. Bradley, The Death and Resurrection of the Establishment Clause, (Liberty & Law Center Research Paper No. 22-06 (2022).
• Francis Beckwith, What’s So Special About Religious Liberty? Law, Philosophy, and Serving God, (Liberty & Law Center Research Paper No. 22-07 (2022).
• Kristen Dagher, What's One More? Another Paper Attempting to Reconcile Abortion Jurisprudence and the Doctrine of Precedent Considering Dobbs v. Jackson Women’s Health, (May 9, 2022).
• Mehdi J. Hakimi, Relentless Atrocities: The Persecution of Hazaras, (Michigan Journal of International Law, Vol. 44 (Forthcoming 2022)).
• Muhammad Munir, John Finnis’ Modern Natural Law Theory: An Overview, (May 15, 2022).

From SSRN (Canadian Law):

• Dwight G. Newman, God in the Constitution: The Supremacy of God Clause in the Preamble to the Canadian Charter of Rights and Freedoms, ((2022) 105 Supreme Court Law Review (2d) 39-56).
• Kristopher Kinsinger, Bringing About a Reformation? Religious Freedom and Canadian Constitutionalism, 1759-1774, ((2022) 105 SCLR (2d) 395).

From SSRN (Law of China and Hong Kong)

• Johannes Man-mun Chan, From Elimination of Discrimination on the Ground of Sexual Preference to Same-Sex Marriage: The Hong Kong Experience, ((2022) Vol 27, No 2, Australian Journal of Human Rights 442-466).
• Hui Jing, The Legal Nature of the Chinese Charitable Trust ,(in Matthew Harding and Ying Khai Liew (eds), Asia-Pacific Trusts Law: Theory and Practice in Context (Hart Publishing, 2021) 271-289).

From SSRN (Islamic Law):

• Zakaria Aamou, Feminist and Islamist Movements in Morocco: Allegations of Compatibility and Revolt, (May 19, 2022).
• Dr. Sulaiman Lebbe Rifai, War and Peace in Islam, (May 19, 2022).
• Dr. Sulaiman Lebbe Rifai, Islam and the Proliferation of Nuclear Weapons, (May 16, 2022).

Certiorari Denied In Wisconsin Parochial School Bussing Case

The U.S. Supreme Court today denied review in St. Augustine School v. Underly, (Docket No. 21-1295, certiorari denied 6/6/2022). (Order List). In the case, the U.S. 7th Circuit Court of Appeals sent back to the district court a suit challenging Wisconsin's refusal to provide bus transportation to students at St. Augustine School. The decision was based on a Wisconsin statute that requires school districts to bus private school students, but limits the obligation to only one private school affiliated with the same religious denomination or sponsoring group in each attendance district. The case has a complicated litigation history. (See prior posting.)

Oversight Report Issued On Philadelphia Archdiocese Compensation Of Abuse Claimants

Yesterday, the Catholic Archdiocese of Philadelphia released the Final Report (full text) of the Oversight Committee monitoring the Archdiocese's Independent Reconciliation and Reparations Program. The Program was designed to to provide compensation and support to victims of childhood sexual abuse committed by clergy of the Archdiocese. The Report says in part:

Of the 623 claims filed, 619 received final determination letters. Three of the 623 claims filed remain "on hold" as a result of ongoing criminal investigations of these claims, and one claim was withdrawn by the Claimant prior to determination.

Of the 619 Claimants who received determination letters, 475 were determined to be eligible for compensation, while 144 were determined to be ineligible.

Of the 475 eligible claims, as of the writing of this report:

438 Claimants (more than 90% of those eligible) have accepted their offers and been paid a combined total of $78,465,000;

one claim was withdrawn after the determination was made;

fifteen claims missed the acceptance deadline....; and

twenty-one offers (totaling $2,040,000) were rejected by the Claimants.... 

...We also confirmed that the Archdiocese reports all allegations of criminal conduct to law enforcement regardless of when the conduct is alleged to have occurred or the status of the alleged perpetrator. The Archdiocese does not make a determination of an allegation's potential viability for prosecution, but rather leaves that determination to the law enforcement authorities with appropriate jurisdiction over the allegation.

Catholic Philly has additional details. The victim advocacy organization SNAP also issued a press release reacting to the Report.

High School Rules Barring Religious Requirements For Christian Student Organization Leaders Is Upheld

In Fellowship of Christian Athletes v. San Jose Unified School District Board of Education, (ND CA, June 1, 2022), a California federal district court upheld a high school's non-discrimination policy for recognized student groups that precluded Fellowship of Christian Athletes from requiring its leaders to agree with and live in accordance with the group's Christian beliefs. In rejecting challenges to the policy, the court said in part:

[P]olicies meant “to ensure that the school’s resources are open to all interested students without regard to special protected classifications” are similar to the antidiscrimination laws intended to ensure equal access that the Supreme Court has concluded are viewpoint and content neutral.... The fact that the Policy allows clubs to set “non-discriminatory criteria” but not criteria based on religion, sexual orientation, or other protected classifications does not mean the Policy aims at the suppression of speech....

Plaintiffs have not shown that the Policy, as written, clearly violates their right to free exercise of their religion. The District’s Policy applies to all ASB student clubs. It does not “impose special disabilities” on Plaintiffs or other religious groups, but instead affects those groups in ways incidental to the general application of the Policy....

COVID Testing Requirement Survives Free Exercise Challenge

In Villareal v. Rocky Knoll Health Care Center, (ED WI, June 1, 2022), a Wisconsin federal district court refused to allow a nurse who objected on religious grounds to a COVID testing requirement of a county-run nursing center to file an amended complaint.  The nurse's employment had been terminated her for refusing to comply with the center's testing policy. The court said in part:

Rocky Knoll’s COVID-19 testing policy is neutral. It does not refer to a religious practice.... Nor is its purpose to suppress “religion or religious conduct.”...

It is also generally applicable: Rocky Knoll’s policy does not prohibit religious conduct while permitting other conduct that may undermine its interest in preventing the spread of COVID-19 in its facility and ensuring the safety of its residents and employees....

The court also held that plaintiff cannot recover damages or obtain injunctive relief in federal court for a claim under the right of conscience provisions of the Wisconsin constitution.

Parents Can Move Ahead With Challenge To School's Transgender Transition Policy

 In T.F. v. Kettle Moraine School District, (WI Cir. Ct., June 1, 2022), a Wisconsin state trial court held that parents could proceed with their action challenging a school district's policy to honor minor students’ requests to transition to a different gender identity at school without parental consent. One set of plaintiffs withdrew their child from the school after the school insisted on using the name and pronouns favored by the student. The court held that they could still proceed with a claim for nominal damages. As to other plaintiffs whose children were in the school but were not presently impacted by the policy, the court said in part:

[Parents] need not wait for potential harm from Kettle Moraine’s policy to occur for their children before they are entitled to seek declaratory relief on whether the policy violates their parental rights.

ADF issued a press release announcing the decision. 

2nd Circuit: Rabbinical College's Zoning Challenge Is Not Ripe For Review

In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, New York, (2d Cir., May 27, 2022), the U.S. 2nd Circuit Court of Appeals affirmed the dismissal of a suit challenging two Village zoning laws that prevent plaintiffs from building a rabbinical college on its 100-acre property.  The court held that the challenge to the laws fails on ripeness grounds. It concluded that the Village Board of Trustees' refusal to consider plaintiffs' petition to repeal completely the two laws cannot be considered to be the Board's final decision on the particular building plans, since the petition did not set out any details of the plans. It also concluded that the U.S. Supreme Court's decision last year in Pakdel v. City and County of San Francisco did not change the ripeness rules for challenging a zoning denial. (See prior related posting.) Rockland/Westchester Journal News reports on the 2nd Circuit's decision.

Louisiana Legislature Clarifies Child Sex-Abuse Look-Back Window

The Louisiana legislature yesterday gave final passage to HB402 (full text). The law clarifies that the 3-year look-back window to bring child sex abuse claims that was enacted last year applies to sex abuse claims, no matter how long ago they arose.  As explained by Louisiana Illuminator:

[O]ver the past year, the Catholic Church has repeatedly argued in Louisiana courts that some of the claims being brought under the lookback window should be thrown out because the window only applies to abuse that has happened since 1993.  Attorneys for the church said last year’s law is restrictive because it references an old statute regarding child abuse that wasn’t enacted until that year....

HB402 eliminates that ambiguity. 

Suit Challenges California Group's Ethnic Studies Curriculum As Antisemitic

Last month, suit was filed in a California federal district court seeking to enjoin the Los Angeles public schools from using an ethnic studies curriculum which plaintiffs contend is antisemitic. The complaint (full text) in Concerned Jewish Parents and Teachers of Los Angeles v. Liberated Ethnic Studies Model Curriculum Consortium, (WD CA, filed 5/12/2022), alleges that defendants oppose the broad Ethnic Studies Curriculum approved by the state of California, and instead are attempting to convince schools to teach a curriculum that focuses only on Black Americans, Chicano/Latinos, Native Americans, and Asian American/Pacific Islanders. The complaint alleges in part:

This case is brought to compel public disclosure of, and to enjoin, Defendants’ efforts to insert into the Los Angeles public school curriculum, overtly racist as well as antisemitic teaching material which, as its authors intend, discriminates against a segment of California residents on the basis of their religious beliefs and their national origin—namely American and Middle Eastern-Americans Jews who embrace their religion’s foundational belief in Zionism....

The 55-page complaint alleges that use of the Liberated Ethnic Studies Model Curriculum violates plaintiffs' rights under the 1st and 14th Amendments, Title VI of the Civil Rights Act of 1964 and the California Education Code. Among other relief, it seeks an injunction barring the Los Angeles Unified School district from:

including any language, in any teaching materials, asserting that Zionism is not a Jewish belief; denouncing the Jewish belief in the land of Israel as the land promised by God to the Jewish people, or the Jewish belief in Zionism, or asserting that the State of Israel, as the Nation-State of the Jewish people, is illegitimate, or asserting as a fact that the Jewish State is guilty of committing such horrific crimes against others as ethnic cleansing, land theft, apartheid or genocide, or that the Jewish people are not indigenous to the land of Israel or to the Middle East, or denying the State of Israel the right to self-defense; and/or denying the historical or religious connection between the Jewish people and the land of Israel....

The Deborah Project's website has more on the lawsuit.

7th Circuit Hears Oral Arguments On Reinstatement Of Doctor Who Refuses Vaccination On Religious Grounds

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Halczenko v. Ascension Health, Inc., (Docket No. 22-1040, 5/31/2022). In the case, an Indiana federal district court last December (full text of district court opinion) denied a preliminary injunction to a pediatric intensive care doctor who was denied a religious exemption from a hospital's COVID vaccination requirement and was placed on unpaid leave. The court held that plaintiff had not shown irreparable injury necessary to obtain an injunction.  Compensatory and other relief will be available if he ultimately prevails. Bloomberg Law reports on the oral arguments, saying in part:

One judge during oral argument ... homed in on the speculative nature of Paul Halczenko’s alleged irreparable harm from not getting rehired by Ascension St. Vincent Hospital right away—that not practicing medicine would cause his skills to atrophy and cost him his career.

Other members of the three-judge panel—all of whom were appointed by President Donald Trump—focused on apparent factual and legal shortcomings in the doctor’s bid for a preliminary injunction against Ascension Health Inc. and the hospital.

Certiorari Denied In Church's Challenge To Colorado COVID Restrictions

The U.S. Supreme Court today denied review in Community Baptist Church v. Polis, (Docket No. 21-1328, certiorari denied 5/31/2022). (Order List). In the case, the U.S. 10th Circuit Court of Appeals affirmed a district court's denial of a preliminary injunction in a free exercise challenge by two churches and one of their pastors to COVID restrictions imposed by the state of Colorado.  It similarly affirmed the dismissal of a challenge to the federal government's award of COVID relief aid to the state. (See prior posting.)

Class Action Filed To Challenge Air Force Vaccine Mandate

Another lawsuit has been filed by religious objectors challenging the military's COVID vaccine mandate.  Brought in a Texas federal district court by nine members of the Air Force as a class action on behalf of all Air Force members with religious objections to the COVID vaccine, the complaint (full text) in Spence v. Austin, (ND TX, filed 5/27/2022), alleges violations of plaintiffs' rights under the 1st Amendment and RFRA.  It alleges in part:

Defendants  have  mandated  that  all  members  of  the  Air  Force  receive  a COVID-19  vaccine,  or  be involuntarily  separated.  In theory, Defendants  offer medical, administrative,  and  religious  accommodations  to  that  mandate.  But  in  practice, only servicemembers with medical or administrative reasons for an exemption from the mandate are accommodated. Religious accommodation requests (“RARs”) are universally denied unless the requester is already imminently leaving the Air Force. 

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

President's Memorial Day Proclamation

Today is Memorial Day. Last week, President Biden issued a Proclamation titled Prayer for Peace, Memorial Day 2022 (full text) which reads in part:

In honor and recognition of all of our fallen service members, the Congress, by a joint resolution approved May 11, 1950, as amended (36 U.S.C. 116), has requested that the President issue a proclamation calling on the people of the United States to observe each Memorial Day as a day of prayer for permanent peace and designating a period on that day when the people of the United States might unite in prayer and reflection.  The Congress, by Public Law 106-579, has also designated 3:00 p.m. local time on that day as a time for all Americans to observe, in their own way, the National Moment of Remembrance.

Virginia Governor Signs Act Broadly Defining "Religion" In Civil Rights Laws

On Friday, Virginia Governor Glen Younkin signed House Bill 1063 (full text) which defines "religion" as used in the state's anti-discrimination laws as:

"Religion" means all aspects of religious observance, practice, or belief.

ADF issued a press release on the new law.

Washington's State Employee Vaccine Mandate Upheld

In Pilz v. Inslee, (WD WA, May 27, 2022), a Washington federal district court upheld a Proclamation by Washington's governor that requires health care, education, and state-agency workers to be vaccinated against COVID.  Among other challenges in a suit brought by 100 state employees, plaintiffs claim the Proclamation infringes on religious beliefs that conflict with vaccination in violation of the Free Exercise clause. The court said in part:

[T]he Proclamation is in no way directed at any religious exercise and, at most, has an incidental impact on some state employees with particular religious beliefs. Therefore, the Court finds that the Proclamation is neutral and generally applicable. The Proclamation is accordingly subject to rational basis review and must be upheld if it is “rationally related to a legitimate governmental purpose.”