Certiorari Petition Filed Again In Bakery's Refusal To Design Wedding Cake For Same-Sex Marriage

Last week, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Klein v. Oregon Bureau of Labor and Industries, (Sup. Ct., filed 9/7/2022). This is the second time the case has worked its way up to the Supreme Court. (See prior posting.) At issue is a finding by the state Bureau of Labor and Industries that Sweetcakes bakery violated the state's public accommodation law when it refused on religious grounds to design and create a wedding cake for a same-sex wedding. In January, the state court of appeals remanded the case to the Bureau of Labor and Industries for it to determine a remedy after finding that the Bureau's first determination of damages was tainted by non-neutrality. (See prior posting.) In August, the Bureau imposed damages of $30,000. First Liberty has additional background.

Recent Articles of Interest

From SSRN:

• Leah Plunkett & Michael Lewis, The Wages of Crying Life: What States Must Do to Protect Children After the Fall of Roe,  (Pepperdine Law Review, 2022-2023).
• Aaron Tang, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban, (Stanford Law Review, Forthcoming).
• Evan R. Seamone, Beyond 'Restoration of Honor': Compensating Veterans for the Psychological Injuries of the Gay and Transgender Bans, (28 William & Mary Journal of Race, Gender, & Social Justice 687 (2022)).
• Cameron Moody, Iranian Music Censorship & International Human Rights Law, (Brooklyn Journal of International Law, Vol. 47, No. 1, 2022).
• John Kenedi, Problematic of Correctional Service (Lapas) in the Perspective of Indonesian Penal Law and Islamic Criminal Law, (2022).

From SmartCILP:

Jordan Blair Woods, Book Review. Bigotry, Civil Rights, and LGBTQ Child Welfare. Who's the Bigot? Learning from Conflicts over Marriage and Civil Rights Law, by Linda C. McClain, 120 Michigan Law Review 1011-1032 (2022).

UK Government Issues Suggestions For Places of Worship To Take Part In Mourning For Queen

In Britain last Friday, the government's Department for Levelling Up, Housing and Communities issued National Mourning Period: Guidance for Faith and Belief Groups and Places of Worship. It contains liturgical and operational suggestions for religious venues that wish to take part in the Period of Mourning for Queen Elizabeth II. Law & Religion UK has links to additional resources.

Justice Sotomayor Stays NY Order Requiring Yeshiva University To Recognize LGBTQ Group

In Yeshiva University v. YU Pride Alliance, (Sup. Ct., Sept. 9, 2022),  U.S. Supreme Court Justice Sonia Sotomayor today issued an order staying a New York trial court's injunction that required Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance. The New York trial court held 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. (See prior posting.) Justice Sotomayor granted the University's Emergency Application for a Stay Pending Appellate Review without referring the petition to the full Court. However she wrote that her stay was granted "pending further order of the undersigned or of the Court." CNN reports on developments.

11th Circuit: No Liability For Withdrawing Permission For Religious Group To Use After School Classrooms

In Chabad Chayil, Inc. v. School Board of Miami-Dade County, Florida, (11th Cir., Sept. 8, 2022), the U.S. 11th Circuit Court of Appeals affirmed the district Court' dismissal of free exercise, equal protection and due process claims brought by a Jewish organization that ran a popular after-school Hebrew program for more than ten years using public school classrooms. In 2019, after a complaint and investigation of whether Chabad complied with the rules for use of school facilities without paying a fee, the Miami-Dade County superintendent withdrew permission for Chabad use of school classrooms. Chabad sued. The court held that plaintiff had not shown the elements necessary to assert liability against either the school board or the Inspector General's office that investigated complaints against Chabad.

Indiana Abortion Restrictions Challenged Under State RFRA

A class action lawsuit was filed yesterday in an Indiana state trial court court on behalf of all persons in the state whose religious beliefs direct them to obtain abortions in situations prohibited by the state's recently enacted restrictive abortion ban. The suit was filed by five anonymous plaintiffs and an organization, Hoosier Jews For Choice.  The complaint (full text) in Anonymous Plaintiffs 1-5 v. Individual Members of the Medical Licensing Board of Indiana, (IN Super. Ct., filed 9/8/2022), contends that the law violates Indiana's Religious Freedom Restoration Act. ACLU issued a press release announcing the filing of the lawsuit.

Michigan Court Permanently Enjoins Enforcement Of Pre-Roe Abortion Law

In Planned Parenthood of Michigan v. Attorney General of the State of Michigan, (MI Ct. Cl., Sept. 7, 2022), the Michigan Court of Claims issued a permanent injunction barring enforcement of Michigan's pre-Roe abortion ban.  The order follows on the Court's previous preliminary injunction against enforcement. It held that enforcement of the ban would violate both the due process and equal protection clauses of the Michigan constitution. The Court rejected the argument that it should interpret the due process clause in the state Constitution to track that of the due process clause in the U.S. Constitution. The court said in part:

... Dobbs relied on a version of history that began in the 13th Century and ended in 1868, when the federal Due Process Clause was ratified. Almost a century, two world wars, a constitutional amendment granting women the right to vote, the emergence of the civil rights movement, and a sea change in the laws regarding women's status in society separate the adoption of the fourteenth amendment from the ratification of our 1963 Constitution.... A court charged with an examination of the ideas giving rise to a 1963 Constitution is not assisted by an historical analysis of a clause drafted in a far different social and legal environment. What was "deeply rooted" in history and tradition in 1868, a focal point in Dobbs, bears little resemblance to the understanding of personal freedom, particularly for woman and people of color, motivating those who drafted and ratified our 1963 Constitution. The Court therefore rejects the intervenors' claim that this Court must reflexively adhere to Dobb's conclusions about the reach of the federal Due Process Clause....

By depriving women who choose abortion the ability to exercise a fundamental right while protecting the same right for pregnant women who choose to continue their pregnancies, MCL 750.14 violates Michigan's Equal Protection clause....

By criminalizing abortion, MCL 750.14 prevents a woman who seeks to exercise a constitutional right from controlling her ability to work or to go to school, and thereby determining for herself the shape of her present and future life.

Responding to a state Court of Appeals opinion that the court of Claims previous preliminary injunction only binds the Attorney General and not independent county prosecutors, the Court ordered the Attorney General to serve a copy of the opinion and accompanying order on every county prosecuting attorney.

Michigan Governor Gretchen Whitmer issued a statement (full text) in support of the Court's decision. Bridge Michigan reports on the decision.

Michigan Supreme Court Says Abortion Rights Proposal Must Go On November Ballot

In Reproductive Freedom For All v. Board of State Canvassers, (MI Sup. Ct., Sept. 8, 2022), the Michigan Supreme Court in a per curiam Order of Mandamus directed the Board of State Canvassers to certify the proposed Reproductive Freedom For All state constitutional amendment for placement on the November 8 election ballot. The Board of State Canvassers had deadlocked 2-2 along party lines with those voting against approval citing a typographical problem that led to several words being run together at places in the text of the proposed amendment as set out in the petitions that were circulated. (See prior posting.) In its Order, adopted by a 5-2 vote, the Court said in part:

It is undisputed that there are sufficient signatures to warrant certification. The only challenge to the petition is in regard to whether there is sufficient space between certain words of the text of the proposed amendment. MCL 168.482(3) requires only that “[t]he full text of the amendment so proposed must follow the summary and be printed in 8-point type.” The “full text” of the amendment is present: regardless of the existence or extent of the spacing, all of the words remain and they remain in the same order, and it is not disputed that they are printed in 8-point type. In this case, the meaning of the words has not changed by the alleged insufficient spacing between them.

Chief Justice McCormack filed a concurring opinion, saying in part:

[Two members of the Board of State Canvassers] would disenfranchise millions of Michiganders not because they believe the many thousands of Michiganders who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone very bad. 

Justice Bernstein also filed a concurring opinion.  Justice Zahra filed a dissenting opinion, saying in part:

[T]he Court, under the pressure to decide the question forthwith in order to ensure timely production of the ballots, has decided to grant mandamus without oral argument. While I would prefer to engage in oral argument before deciding this issue, pressed for a ruling, I must conclude that plaintiffs have not met their burden of establishing a clear legal right to a writ of mandamus.

Justice Viviano filed a 14-page dissenting opinion, saying in part:

For well over a thousand years, we have conveyed thought and meaning by using spaces between words.... It was not always so. Ancient text employed scriptura continua, in which words were uninterrupted by word spaces.... But the objectives of reading in ancient times were different, with the focus being on memorization useful to an oral rather than a text-based culture....

If the full-text requirement is subject to an analysis that asks whether the meaning has sufficiently changed or become ambiguous enough to potentially mislead,... then presumably the determination of whether the full text is present involves at least some discretion. That is, a factual determination concerning the extent of the error and its probable effects must be made by the board. But if so, then it is hard to see how this decision can be characterized as ministerial and thus subject to mandamus.

NPR reports on the decision. 

ACA Mandate To Cover PrEP Drugs Violates RFRA

In Braidwood Management Inc. v. Becerra, (ND TX, Sept. 7, 2022), a Texas federal district court held that the ACA mandate for health insurance coverage of PrEP drugs violates the rights under the Religious Freedom Restoration Act of a for-profit corporation whose owner believes that providing such coverage for his employees would make him complicit in their homosexual conduct and sexual activity outside of marriage. The court said in part:

Defendants dispute Hotze’s beliefs. They argue that Hotze’s claim that PrEP drugs facilitate various kinds of behavior is an empirical one that requires factual support.... But Defendants inappropriately contest the correctness of Hotze’s beliefs, when courts may test only the sincerity of those beliefs...

Defendants claim a compelling interest in reducing the spread of HIV, a potentially fatal infectious disease.... 

But Defendants frame the interest too broadly. “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” ...

... Defendants provide no evidence of the scope of religious exemptions, the effect such exemptions would have on the insurance market or PrEP coverage, the prevalence of HIV in those communities, or any other evidence relevant “to the marginal interest” in enforcing the PrEP mandate in these cases...

Even if Defendants had satisfied the compelling-interest prong, they have not shown that the PrEP mandate is the least restrictive means of furthering that interest...

Much of the court's 42-page opinion relates to other issues. Bloomberg reports on the decision. [Thanks to James Phillips for the lead.]

New York Violates Speech Rights of Adoption Agency By Requiring Placement With Unmarried and Same-Sex Families.

In New Hope Family Services, Inc. v. Poole, (ND NY, Sept. 6, 2022), a New York federal district court issued a permanent injunction prohibiting the state of New York from requiring New Hope, a religiously affiliated social service agency, to provide adoption services to unmarried or same-sex couples. The state Office of Children and Family Services contended that New Hope's policy of referring such clients to other agencies violated its anti-discrimination rules. Citing a previous holding by the Second Circuit, the court concluded that "by compelling it to place children with unmarried and same-sex couples, OCFS is necessarily compelling New Hope to engage in the speech required for that conduct...." While agreeing that the state has a compelling interest in avoiding discrimination and increasing the pool of potential adopting families, the court held that OCFS's rule is not narrowly tailored to advance those interests:

New Hope's "recusal-and-referral" practice was a more narrowly tailored means of avoiding discrimination than the closure of New Hope's adoption operation.

Ecclesiastical Abstention Doctrine Does Not Bar Suit Over Compliance With Non-Profit Corporation Law

 In Auguste v. Hyacinthe, (FL App., Sept. 7, 2022), a Florida state appellate court held that the ecclesiastical abstention doctrine does not bar the court's deciding whether defendants violated provisions of the Florida Not For Profit Corporation Act.  After the founding pastor of a Baptist church died, the congregation split into two factions.  Plaintiffs allege that after defendant was removed as a director, he continued to purport to act on behalf of the church by filing annual reports with the state, falsely listing members of his faction as officers and falsely removing others. Plaintiffs allege that he also, without proper notice, held a secret meeting with some church members and executed a false resolution claiming that other of the directors were expelled. The court said in part:

Count I alleged that Hyacinthe violated section 617.0808, Florida Statutes (2018), regarding removal of directors. Count II alleged that Tibois violated the same statute. Count III alleged that Appellees violated chapter 617 in holding secret meetings....

Appellants’ counts I-III did not raise claims that would necessarily require the trial court to decide which faction of the Church has control or seek resolution of questions regarding the Church’s governance. Instead, we conclude counts I-III raise issues of the propriety of actions of the board of trustees, board of directors, or corporate officials of a corporation under chapter 617, Florida Statutes....

Conversely, we determine that the trial court did not err in dismissing Appellants’ count IV – raising a cause of action for conversion against Appellees.... Appellants’ count IV would necessarily require the trial court to determine which faction controlled the Church....

Michigan Supreme Court To Decide Whether Abortion Rights Proposal Will Be On November Ballot

 As previously reported, backers of a proposed abortion rights amendment to the Michigan Constitution are appealing to the Michigan Supreme Court the refusal of the Board of State Canvassers to certify the proposal for the ballot.  Republicans on the Board created a deadlocked vote, contending that kerning of the text that ran some words together invalidated the petitions that were submitted. The complaint (full text) in Reproductive Freedom for All v. Board of State Canvassers, (MI Sup. Ct., filed 9/1/2022) is now available online, as are some of the amicus briefs filed in the case. Here are links to briefs from Michigan Attorney General Dana Nessel, from seven county Prosecuting Attorneys, and from a coalition of advocacy and religious groups. Bridge Michigan reports on these developments.

9th Circuit Upholds Washington's Ban On Conversion Therapy

In Tingley v. Ferguson, (9th Cir., Sept. 6, 2022), the U.S. 9th Circuit Court of Appeals rejected free speech, free exercise and vagueness challenges to Washington state's ban on practicing conversion therapy on minors.  The court said in part:

Washington’s licensing scheme for health care providers, which disciplines them for practicing conversion therapy on minors, does not violate the First or Fourteenth Amendments. States do not lose the power to regulate the safety of medical treatments performed under the authority of a state license merely because those treatments are implemented through speech rather than through scalpel....

SB 5722 is a neutral law targeted at preventing the harms associated with conversion therapy, and not at the religious exercise of those who wish to practice this type of therapy on minors.

 Judge Bennett concurred in part.  Courthouse News Service reported on the decision.

Eminent Domain Violated Rights of Chabad

In Chabad Lubavitch of the Beaches, Inc. v. Incorporated Village of  Atlantic Beach, (ED NY, Sept. 6, 2022), a New York federal district court granted a preliminary injunction, concluding that an attempt to acquire the property of a Jewish religious group by eminent domain likely violated the group's 1st Amendment free exercise rights. Chabad acquired the property in order to build a center on it. Eminent domain proceedings were initiated shortly after Chabad held a Menorah lighting ceremony on the property. The court explained:

[T]he Village’s acquisition decision was made in a manner intolerant of Chabad’s members’ religious beliefs and which would restrict Chabad’s practices because of its religious nature. Thus, the Village’s acquisition decision was targeted and not done neutrally, thereby requiring the Court to apply strict scrutiny in deciding whether that decision is constitutionally permissible. 

... The Village never inquired from the Property’s prior owner whether he was interested in selling the Property ... notwithstanding it being adjacent to and/or in very close proximity to Village-owned and controlled properties and it having sat vacant for three years, with a prominent “For Sale” sign having been erected in front of the Property for the last two of those three years.... Instead, for vague reasons, not strongly supported by direct evidence ... the Village’s apparent urgency to acquire the Properties intensified during the same time when Chabad purchased the Property....

Further, the several anti-Semitic comments posted to the FB Group page after the January 10 open meeting, i.e., community member comments, add to the suspicion caused by the timing of events and call into question the Village’s stated motivation for acquiring the Property by eminent domain....  [O]ne of the Village Trustees, was an administrator/monitor of the FB Group; thus, it is difficult not to conclude that at least one member of the Village Board was aware of several strong opponents to Chabad’s presence in the Village, based upon impermissible religious animus.

California Assisted Suicide Law Violates Free Speech rights Of Objecting Doctors

In Christian Medical & Dental Association v. Bonta, (CD CA, Sept. 2, 2022), a California federal district court held likely unconstitutional a provision in the California End of Life Option Act which requires doctors who refuse on conscience, moral or ethical grounds to participate in procedures set out by the act to nevertheless document in a patient's record the date of the patient's request for an aid-in-dying drug. This notation serves as one of two required requests by a patient before the patient may obtain the drug. The court rejected the argument that this violates the free exercise rights of medical providers who object on religious grounds, saying in part:

The court recognizes that Plaintiffs have sincerely held religious beliefs, and that compliance with the documentation requirements contained in Section 443.14(e)(2) infringes on the free exercise of their religion. However, under clearly established doctrine in Smith, Lukumi, and Fulton, strict scrutiny does not apply to a neutral and generally applicable law, like the Act here.

The court also rejected equal protection and due process challenges. However, the court did conclude that plaintiffs are likely to succeed on their free speech challenges to the requirement, saying in part:

[T]he documentation requirement imposed by the Act “plainly alters the content” of non-participating health care providers’ speech.... The ultimate outcome of this requirement is that non-participating providers are compelled to participate in the Act through this documentation requirement, despite their objections to assisted suicide.

The court issued a preliminary injunction barring state enforcement of the requirement against objecting health care providers. ADF issued a press release announcing the decision.

Qualified Immunity Denied In Muslim Woman's Challenge To Jail's Booking Photo Policy

In Chaaban v. City of Detroit, Michigan Department of Corrections, (ED MI, Sept. 2, 2022), a Michigan federal district court denied a motion in a RLUIPA case for reconsideration of the denial of qualified immunity to corrections officials who forced a Muslim woman to remove her hijab for a booking photograph. The court concluded that it was premature to grant immunity on a motion to dismiss, saying in part:

[D]iscovery is needed to determine “whether the state of the law . . . gave [the defendants] fair warning that [the plaintiff’s] alleged treatment was unconstitutional.”... Plaintiff plausibly alleged in her complaint that prison officers threatened to make Plaintiff “sleep on the concrete floor of the booking cell without a bed, blanket, mattress or pillow” if she did not remove her hijab.... Taking this and other allegations in Plaintiff’s complaint as true ... the Court properly determined that qualified immunity is not appropriate at this time.

Recent Articles of Interest

From SSRN:

• Aviam Soifer, Remembrance, Group Gripes, and Legal Frictions: Rule of Law or Awful Lore?, (Touro Law Review, Vol. 37, No. 4, 2022).
• Louis E. Wolcher, Ronald Dworkin's Wittgenstein, (Wittgenstein and Other Philosophers, edited by A. Khani & G. Kemp (Routledge), Forthcoming).
• Jeffrey R. Baker, A Sermon on the Law: The Jurisprudence of Love,  (August 26, 2022).
• Antony Kolenc, 'No Help You God' - Religion, the Courtroom, and a Proposal to Amend the Federal Rules of Evidence, (Mississippi Law Journal, Vol. 91, No. 1, 2022).

From SSRN (Islamic Law):

• Hedayat Aly Heikal, Editor's Introduction to the Special Issue,  (Journal of Islamic Law, Vol. 3, No. 1 (2022).
• Masoud Noori & Zahra Azhar, Shīʿī Ideas of Slavery: A Study of Iran in the Qājar Era Before and After the Constitutional Revolution,  Journal of Islamic Law, Vol. 3, No. 1 (2022)).
• Adnan Zulfiqar, The Immorality of Incarceration: Between Jāvēd Aḥmad Ghāmidī and Angela Y. Davis, (Journal of Islamic Law, Vol. 3, No. 1 (2022).
• Dawood Ashraf, Digital Finance and Artificial Intelligence: Islamic Finance Challenges and Prospects, (August 24, 2021).

From SmartCILP:

• Wadie E. Said, Material Support Prosecutions and Their Inherent Selectivity, 27 Michigan Journal of Race & Law 163-170 (2021).
• Ramzi Kassem, American Informant, 27 Michigan Journal of Race & Law 171-192 (2021).
• Khaled Ali Beydoun, The Ban and Its Enduring Bandwidth, 27 Michigan Journal of Race & Law 193-202 (2021).
• Asma T. Uddin, A Religious Double Standard: Post-9/11 Challenges to Muslims' Religious Land Use, 27 Michigan Journal of Race & Law 223-232 (2021).

UPDATE: Journal of Law & Religion, Volume 37, Issue 2, May 2022, is also available for a limited time online without charge.

Church's Attempt To Separate From Parent To Avoid Receivership Was Fraudulent

In Pentecostal Church of God v. City of Refuge Ministries Toledo Ohio, (OH Com. Pl., Aug. 15, 2022), an Ohio state trial court held that the transfer of a Toledo, Ohio church building by a quitclaim deed to City of Refuge, a separate non-profit entity, was fraudulent.  The court concluded that Toledo congregation was a satellite church of Detroit Pentecostal Church of God, and the members signing the deed had no authority to transfer the property. The transfer was made in order to attempt to separate the Toledo congregation from the receivership imposed on the Detroit congregation. The court said in part:

Here, the dispute is over a quit-claim deed that transferred property held by PCG to City of Refuge in 2018. Deciding if that deed was fraudulently transferred from PCG to City of Refuge will not invade upon protected ecclesiastical matters.....

[T]his Court finds that the deed executed in 2018, conveying the contested property from PCG to City of Refuge Ministries Toledo, Ohio as void, ab initio. Further, the title to said property is vested to PCG alone and the defendant, City of Refuge does not have any estate, right, title, or interest in the property.

UN Issues Report On Human Rights Concerns In China's Uyghur Region

On Wednesday, the United Nations Human Rights Office issued a report on human rights concerns in China's Xinjiang Uyghur Autonomous Region. (Full text of report.) A portion of the report focuses on restrictions on religious expression, and says in part:

The “Strike Hard” campaign has led to the adoption or amendment of various legal instruments to further tighten the regulation of religion.... “[E]xtremism” is defined broadly, while the legal instruments include a list of “primary expressions of extremism” that have in practice been accompanied by lists of “signs” of “religious extremism” to assist officials and the general public in identifying “extremist” behaviour.... These ... include conduct that may in the circumstances be of legitimate concern, such as “inciting ‘Jihad’, advocating and carrying out violent terrorist activities”, but range far more widely, encompassing an exceptionally broad range of acts that in themselves constitute exercise of protected fundamental freedoms connected to the enjoyment of cultural and religious life by these communities. These include wearing hijabs and “abnormal” beards; expanding the scope of “Halal”; closing restaurants during Ramadan; participating in cross-county religious activities “without valid reason”; using Virtual Private Networks (VPNs), social media and Internet to teach scriptures and preach; and giving one’s child a Muslim name....

Such exceptionally broad interpretations of “extremism”, often explicitly targeting standard tenets of Islamic religion and practice, in effect renders virtually all such conduct in potential breach of the regulation of religion....  An environment is thus created in which religious or cultural practice or expression is conflated with “extremism” ....

Alongside the increasing restrictions on expressions of Muslim religious practice are recurring reports of the destruction of Islamic religious sites, such as mosques, shrines and cemeteries....

China filed a 122-page response (full text) to the report contending that China is fighting terrorism and extremism. It says in part:

Religious extremists advocate extremist ideologies, incite hatred against other religions and "heretics", and undermine Xinjiang's religious harmony and ethnic unity.

AP reports on these developments.

District Court: Public Accommodation Law Violates Wedding Photographer's Free Speech Rights

In Chelsey Nelson Photography, LLC v. Louisville/ Jefferson County, (WD KY, Aug. 30, 2022), a Kentucky federal district court held that Louisville's public accommodation ordinance violates the free speech rights of a Christian wedding photographer who has moral and religious objections to same-sex marriages. The court said in part:

Courts across the country have addressed whether bakers, florists, website designers, and other creative professionals must either provide their services for weddings that violate their beliefs or else abstain entirely from the wedding business. And those courts’ disagreement on whether this amounts to prohibited discrimination or protected dissent is what the U.S. Supreme Court has set out to resolve during its upcoming term....

This is a real conflict between nondiscrimination and speech that cannot be wished away: compelling access for all necessarily clashes with the liberty of some. The City contends that Nelson’s speech demeans same-sex couples, while Nelson says the City’s Ordinance demeans her speech....

The First Amendment’s protections for religious exercise ... are unlikely to help those in Nelson’s position: at least as currently construed, that aspect of the Constitution does not shield people whose sincerely held religious beliefs conflict with generally applicable laws....

But the government’s authority over public accommodations does not extend to “abridging the freedom of speech.”...

So although Louisville may require restaurants and hotels and stores to provide services regardless of the proprietors’ views or their customers’ legal status, the government may not force singers or writers or photographers to articulate messages they don’t support.

The court also concluded that the ordinance violates the Kentucky Religious Freedom Restoration Act. [Thanks to Thomas Rutledge for the lead.]

Church Autonomy Doctrine Bars Catholic High School Teacher's Suit Against Archdiocese

In Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., (IN Sup. Ct., Aug. 31, 2022), the Indiana Supreme Court held that the church autonomy doctrine bars a suit by a former Catholic school teacher against the Catholic Archdiocese for interfering with his employment contract with a Catholic high school. The suit alleges that the Archdiocese pressured the school to fire plaintiff because he had entered a same-sex marriage. Citing a 2003 decision, the court said in part:

[U]nder the church-autonomy doctrine a civil court may not (1) penalize via tort law (2) a communication or coordination among church officials or members (3) on a matter of internal church policy or administration that (4) does not culminate in a criminal act.

Becket issued a press release announcing the decision.

Suit Contends Indiana Abortion Restrictions Violate State Constitution

Suit was filed Tuesday in an Indiana state trial court challenging the state's recently-enacted law that bans abortions, with exceptions during early pregnancy to protect the life or to prevent serious health risk to the mother, in cases if lethal fetal anomaly, and in cases of rape or incest. Also all abortions are required to be performed in hospitals or hospital-owned outpatient surgical centers. The complaint (full text) in Planned Parenthood Great Northwest v. Members of the Medical Licensing Board of Indiana, (IN Cir. Ct., filed 8/3-/2022), contends in part:

S.B. 1’s total abortion ban strips away the fundamental rights of people seeking abortion care in Indiana in violation of the State Constitution. It will infringe on Hoosiers’ right to privacy, violate Indiana’s guarantee of equal privileges and immunities, and violate the Constitution’s due course of law clause through its unconstitutionally vague language.

Courthouse News Service reports on the lawsuit.

Nurse Sues Clinic For Violating State Conscience Protections

Suit was filed yesterday in a Virginia state court by a Catholic nurse practitioner who was fired by a CVS Minute Clinic after she insisted that, for religious reasons, she would not provide or facilitate the use of hormonal contraceptives, Plan B and Ella which she considers abortifacients. For three years, the clinic had accommodated her religious beliefs, but it then changed its policy and refused to do so.  The complaint (full text) in Casey v. MinuteClinic Diagnostic of Virginia, LLC, (VA Cir. Ct., filed 8/31/2021) challenges her firing as a violation of Va. Code § 18.2-75 which provides that:

any person who shall state in writing an objection to any abortion or all abortions on personal, ethical, moral or religious grounds shall not be required to participate in procedures which will result in such abortion.

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

Michigan Abortion Rights Amendment Faces Possible Ballot Exclusion Because of Typographical Formatting Errors

Earlier today, the Michigan Board of State Canvassers deadlocked 2-2, along party lines, in its vote on approving for inclusion on the November ballot an abortion rights state constitutional amendment. As reported by the Detroit Free Press, while backers had obtained far more than the minimum number of petition signatures need for inclusion on the ballot, challengers focused on the formatting of the text of the proposed amendment on the petition which erroneously ran several words together so that there were no spaces between the words. The Board of State Canvassers staff report said in part:

The Michigan Constitution of 1963 requires that the “petition shall include the full text of the proposed amendment”....

The RFFA petition includes the same letters, arranged in the same order, as the petition conditionally approved at the March 23rd Board meeting... Certain portions of the petition have smaller spaces between words; the spacing between words in some instances appears similar to the spacing between letters within words. The Michigan Election Law is silent on the amount of space that must be between letters and words in a petition.

Challengers argued that because of these typographical errors, the petitions do not contain the full text of the proposed amendment.

Under MCL §168.479, a decision of the Board of State Canvassers may be challenged by a petition filed with the state Supreme Court within 7 days of the decision. The group sponsoring the amendment, Reproductive Freedom For All, has already announced that it will appeal to the Michigan Supreme Court.

Another Lawsuit Over Touro Synagogue Dismissed On A Technicality

Providence Journal reports on the latest legal scuffle over the historic Touro Synagogue which is owned by New York's Shearith Israel congregation, but which has been the home of Rhode Island-based Congregation Jeshuat Israel. (See prior related posting.) Shearith Israel had filed an action to evict Jeshuat Israel, though Shearith Israel says it was merely trying to obtain more transparency and two seats on Jeshuat Israel's 15-person board. A Rhode Island state trial court judge seized on a technicality to dismiss the eviction action. Judge Colleen Hastings concluded in an Aug. 29 decision that the eviction notice ordered Jeshuat Israel to vacate the premises on January 31, the last day of its lease, while it should have ordered it to vacate on February 1, the day after the lease expired. Apparently this latest controversy arose when the New York congregation discovered that a tombstone had been erected in the Rhode Island synagogue's cemetery for New York businessman, diplomat and philanthropist John Loeb, though Loeb is still alive. Loeb contributed $12 million for the building of the visitor center at Touro Synagogue.

Religious Discrimination Claims Against Child Protective Services Meet Procedural Hurdles

In Gautreaux v. Masters, (WD TX, Aug. 29, 2022), a Texas federal magistrate judge recommended that the court dismiss some or all of the free exercise and due process claims brought by foster parents who were accused by the Texas Department of Family and Protective Services (DFPS) of child abuse. The opinion describes plaintiffs' allegations:

[DFPS] asked the couple to identify their religion during the application process, and they identified themselves as practicing members of the Church of Jesus Christ of Latterday Saints.... Gautreaux alleges that DFPS demonstrated "hostility toward the Gautreauxes' religion" at their initial interview, while their follow-up interview "exclusively concerned the Gautreauxes' religious practices and beliefs."...

... DFPS informed Gautreaux that the department had found there was "reason to believe" she had committed the alleged abuse, resulting in Gautreaux being placed on the DFPS central registry "as a child abuser." ... Gautreaux alleges that DFPS's decision was motivated by religious "animus" and that there was no evidence of abuse to support the finding....

Gautreaux alleges that she is unable to practice her religion as a result of her placement on the DFPS central registry. Specifically, Gautreaux alleges that she cannot participate in her "calling" - an assignment made by Church leaders - which is to "teach singing to children in her local church."

In a lengthy opinion, the Magistrate Judge recommended either that all the claims be dismissed under the Younger abstention doctrine, or alternatively that most of plaintiffs' free exercise claims be dismissed because of 11th Amendment sovereign immunity. Under the alternative recommendation, the court could move ahead on  claims challenging DFPS's policies of considering religious beliefs and practices as a concern in abuse investigations and its disregarding of inconsistent court rulings.

7th Circuit: Plaintiffs Failed To Show Facts Supporting Free Exercise Objections To COVID Vaccine Mandate

In Lukaszczyk v. Cook County, (7th Cir., Aug. 29, 2022), the U.S. 7th Circuit Court of Appeals, ruling on three separate district court cases, refused to order preliminary injunctions against local and state COVID vaccine mandates.  The court said in part:

The plaintiffs argue the mandates violate their constitutional rights to substantive due process, procedural due process, and the free exercise of religion. They also contend the mandates violate Illinois state law. Although the plaintiffs could have presented some forceful legal arguments, they have failed to develop factual records to support their claims. Because the plaintiffs have not shown a likelihood of success on the merits, we affirm the decisions of the district judges....

Discussing plaintiffs' Free Exercise claims, the court said in part: 

[I]f these assertions have merit, there is no record evidence to support them. The plaintiffs should have gathered facts and created a record detailing any wrongful denials of requests for religious exemptions. Instead, they made a facial challenge, which ignored the text of the policy’s religious exemption and the status of the plaintiffs’ exemption requests. This does not show a violation of their right to freely exercise their religions.

9th Circuit: High School Must Recognize Fellowship of Christian Athletes

In Fellowship of Christian Athletes v. San Jose Unified School District Board of Education, (9th Cir., Aug. 29. 2022), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, ordered reinstatement of the Fellowship of Christian Athletes as an official student club at San Jose high schools.  The majority said in part:

This case pits two competing values that we cherish as a nation: the principle of non-discrimination on the one hand, and the First Amendment’s protection of free exercise of religion and free speech on the other hand.

The Fellowship of Christian Athletes (FCA) requires students serving in leadership roles to abide by a Statement of Faith, which includes the belief that sexual relations should be limited within the context of a marriage between a man and a woman. The San Jose Unified School District ... revoked FCA’s status as an official student club at its high schools, claiming that FCA’s religious pledge requirement violates the School District’s non-discrimination policy.

... Under the First Amendment, our government must be scrupulously neutral when it comes to religion: It cannot treat religious groups worse than comparable secular ones. But the School District did just that.

The School District engaged in selective enforcement of its own non-discrimination policy, penalizing FCA while looking the other way with other student groups. For example, the School District blessed student clubs whose constitutions limited membership based on gender identity or ethnicity, despite the school’s policies barring such restricted membership. The government cannot set double standards to the detriment of religious groups only.

Judge Lee filed a concurring opinion, saying in part:

One schoolteacher called the Fellowship of Christian Athletes’ (FCA) beliefs “bullshit” and sought to ban it from campus. Another described evangelical Christians as “charlatans” who perpetuate “darkness” and “ignorance.”...

This is not, to put it mildly, neutral treatment of religion. More than a whiff, a stench of animus against the students’ religious beliefs pervades the Pioneer High School campus. I write separately to highlight the depth of that animus and explain why it is yet another reason why the School District violated the Free Exercise Clause.

Judge Christen dissented, saying in part:

My colleagues are correct that the competing values at issue in this case are cherished by our nation and enshrined in our Constitution. The plaintiffs will surely have their day in court for their claims of past harm. Once they do, the court will have to consider both the plaintiffs’ rights and the rights of those they would exclude. Notably, the majority offers no limiting principle to the permission it grants allowing one club to discriminate. In the meantime, we are not free to contort our standing jurisprudence in order to prematurely reach the merits and we ought not do so in a case of this magnitude before the record has been developed and tested.

NYC Vaccine Mandate Upheld

In Kane v. DeBlasio, (SD NY, Aug. 26, 2022), a New York federal district court rejected a challenge by New York City teachers, administrators and staff to New York City's public employee COVID vaccine mandate. They claimed the mandate violates their 1st and 14th amendment rights.  Discussing plaintiffs' free exercise claim, the court said in part:

The Second Circuit has already found that “[t]he Vaccine Mandate, in all its iterations, is neutral and generally applicable.”...

Ignoring the fact that the pandemic has claimed the lives of more than a million people in the United States, plaintiffs take the bold position that the Mandate has the “express purpose of inflicting special disability against minority religious viewpoints,” ... rather than its obvious and explicit goals to ... “potentially save lives, protect public health, and promote public safety.”...

Plaintiffs’ arguments that the Vaccine Mandate is not generally applicable again rely on arguments that the Second Circuit already rejected. 

Christian Healthcare Organization Sues Over Michigan Non-Discrimination Law

Suit was filed yesterday in a Michigan federal district court by a faith-based healthcare organization contending that Michigan's employment discrimination law violates its free exercise, free speech and due process rights. The 73-page complaint (full text) in Christian Healthcare Centers, Inc. v. Nessel, (WD MI, filed 8/29/2022), contends in part:

Under the guise of stopping discrimination, the law discriminates against religious organizations, requiring them to forfeit their religious character and hire people who do not share their faith. That same law also forces Christian Healthcare to prescribe cross-sex hormones and refer to patients in communications and medical records according to their stated gender identity, rather than their biological sex. All of this violates Christian Healthcare’s religious convictions. In effect, the law requires Christian Healthcare to check its religious faith at the clinic door—the very faith that motivates the clinic to open its doors to help those in need....

290. Michigan’s laws do not contain a religious exemption for religious entities like Christian Healthcare.

291. Michigan’s Employment Clause allows employers to apply to the Commission for an exemption on the basis that religion is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the business or enterprise. MCL 37.2208; MDCR Rule 37.25(1)....

297. Because Christian Healthcare requires all employees to affirm and live in accordance with its Religious Statements, which prohibit same-sex relationships and expressing a transgender identity, it would need a BFOQ exemption from discrimination on the basis sexual orientation, gender identity, and religion for every one of its employees.

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

Yeshiva University Asks Supreme Court For Stay While State Court Ruling On Recognizing LGBTQ Group Is Appealed

Yesterday, an emergency Application for a Stay Pending Appellate Review (full text) was filed in Yeshiva University v. YU Pride Alliance, (Sup. Ct., filed 8/29/2022). In the case,  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. (See prior posting.) State appellate courts refused to stay the ruling. The petition contends that Yeshiva University is likely to succeed on its contention that forcing it to recognize the group violates the University's free exercise rights and the principles of church autonomy. The filing asks that alternatively it be treated as a petition for certiorari. Becket issued a press release announcing the filing of the Application.

RFRA Defense Cannot Be Decided On Pre-Trial Motion

In United States v. Skeet, (D NM, Aug. 26, 2022), a New Mexico federal district court held that defendant, a member of the Navajo nation, must assert as a defense at trial rather than in a pre-trial motion, the contention that the Migratory Bird Treaty Act and the Bald and Gold Eagle Protection Act violate his rights under the Religious Freedom Restoration Act. The court said in part:

[B]ecause Mr. Skeet’s RFRA defense implicates primarily factual rather than legal issues, the Court finds that this defense is “territory reserved to the jury as the ultimate finder of fact in our criminal justice system.” ... Additionally, because the RFRA defense goes to the ultimate issue of Mr. Skeet’s guilt, it would require a trial on the merits of the case—a prospect that is proscribed by Rule 12(b)(1) and that disserves judicial economy.... Nevertheless, Mr. Skeet is welcome to assert a RFRA defense at trial.

Marine Corps Enjoined From Discharging Religious Objectors To COVID Vaccination

In Colonel Financial Management Officer v. Austin, (MD FL, Aug. 18, 2022), a Florida federal district court certified as a class all Marines who have a sincere religious objection to COVID vaccination and whose request for a religious accommodation has been (or will  be) denied on appeal. According to the court:

The Marine Corps has granted only eleven accommodations, less than three-tenths of a percent (0.295%) of the 3,733 applications. The record presents no successful applicant other than a few who are due for retirement and prompt separation.

The court found "a systemic failure by the Marine Corps to satisfy RFRA." It said in part:

Notwithstanding a chaplain's affirmation, the Marine Corps rejects as insubstantial any religious objection grounded in the vaccine's connection to aborted fetal tissue because "fetal stem cells are neither used in the manufacture of the Pfizer COVID-19 vaccine nor are they present in the vaccine itself." This "finding," a unilateral lay declaration about a much discussed and much-debated topic, says nothing about the use of aborted fetal cells in the development of the vaccine and this finding says nothing about (and can say nothing about) the theological consequences of that use or about either moral or factual uncertainty. The "finding" says nothing about the religious concepts of, for example, accepting a personal benefit from evil, assisting someone in profiting from evil, cooperating in evil, appropriation of evil, de-sensitization to evil, moral contamination by intimacy with evil, ratification of evil, complicity with evil, or other considerations undoubtedly familiar to a theologian and likely familiar to a thoughtful and religious lay person who has contemplated evil.

The court issued a preliminary injunction against enforcement of the vaccine mandate against class members, or discharge or harassment of them.

Recent Articles of Interest

 From SSRN:

• Russell G. Pearce & Laynie Soloman, ’Nothing About Us Without Us’: Toward a Liberatory Heterodox Halakha, (Forthcoming, 37 Touro L. Rev. 1769-1835, 2022).
• Matthew Goldammer, Protecting Church Autonomy in the Twenty-First Century: A Defense of the Compulsory Deference Approach for Church Property Litigation, (Notre Dame Journal of Law, Ethics and Public Policy, Forthcoming).
• Giancarlo Anello, Mohamed A. Arafa & Sergio Alberto Gramitto Ricci, Sacred Corporate Law, (Seattle University Law Review, Vol. 45, 2021).
• Ido Katri, The Perils of Gender Self-Determination- Global Shifts in Sex Reclassification Law and Policy, (American Journal of Comparative Law (Forthcoming)).

From SmartCILP and elsewhere:

• Steven K. Green, The Supreme Court's Ahistorical Religion Clause Historicism, 73 Baylor Law Review 505-561 (2021).
• William Thomas Worster, The Human Rights Obligations of the Holy See under the Convention on the Rights of the Child, 31 Duke Journal of Comparative and International Law 351-424 (2021).
• Australian Journal of Law & Religion, Volume 1 (2022).

5th Circuit Approves Injunction Shielding Religious Organizations From Mandate On Transgender Medical Care

In Franciscan Alliance, Inc. v. Becerra, (5th Cir., Aug. 26, 2022), the U.S. 5th Circuit Court of Appeals, invoking RFRA, upheld a Texas federal district court's issuance of a permanent injunction barring the government from interpreting or enforcing provisions of the Affordable Care Act to require religious organizations, in violation of their religious beliefs, to perform or provide insurance coverage for gender-reassignment surgeries or abortions. At issue is the interpretation of the ACA's ban on discrimination on the basis of sex. The court however held that an alternative claim based on the Administrative Procedure Act was moot. Becket issued a press release announcing the decision.

California Must Allow Churches To Opt Out Of Abortion Coverage In Their Health Care Plans

In Foothill Church v. Watanabe, (ED CA, Aug. 25, 2022), a California federal district court held that the California Department of Managed Health Care (DMHC) should have taken steps so that objecting churches could be exempt from the Department's requirement that health insurance policies cover abortion services. DMHC argued that only health care plans are subject to its regulation, so exemptions will be granted only to plans, not to employers. Subjecting plaintiffs' Free Exercise claim to strict scrutiny because the DMHC rule is subject to a system of individual exemptions and thus is not "generally applicable," the court said in part:

[T]he court assumes without deciding that the Director’s understanding of the scope of her regulatory authority, that she is limited to regulating health plans, is correct. Nonetheless, nothing in the statutory text explicitly precludes her from fielding requests for exemptions from religious claimants. Likewise, nothing appears to preclude the Director from directing the religious claimant’s plan to submit a revised evidence of coverage document comporting with the religious claimant’s belief to the DMHC for approval. The Director’s authority to give orders to a plan does not foreclose the authority to consider requests for those orders from others. In the end, the Director is still regulating the plan.

... The Director’s denial of the Churches’ request for exceptions to accommodate their religious beliefs, based solely on the fact that those requests did not originate with a plan, was not narrowly tailored to serve a compelling interest.

ADF issued a press release announcing the decision.

8th Circuit Upholds Injunction On Gender Transition Procedures Ban

In Brandt v. Rutledge, (8th Cir., Aug. 25, 2022), the U.S. 8th Circuit Court of Appeals affirmed an Arkansas district court's grant of a preliminary injunction against enforcement of Arkansas' ban on healthcare professionals providing gender transition procedures to anyone under 18, or referring minors for such procedures. Finding that the law violates the Equal Protection Clause, the court said in part:

[U]nder the Act, medical procedures that are permitted for a minor of one sex are prohibited for a minor of another sex. A minor born as a male may be prescribed testosterone or have breast tissue surgically removed, for example, but a minor born as a female is not permitted to seek the same medical treatment. Because the minor’s sex at birth determines whether or not the minor can receive certain types of medical care under the law, Act 626 discriminates on the basis of sex.

Arkansas’s characterization of the Act as creating a distinction on the basis of medical procedure rather than sex is unpersuasive.

Arkansas Times reports on the decision.

Sikh Marine Recruits Lose Bid For Turbans and Unshorn Hair During Recruit Training

In Toor v. Berger, (D DC, Aug. 24, 2022), the D.C. federal district court refused to grant a preliminary injunction to three Sikh Marine recruits who wanted to prevent enforcement of the Marine's uniform and grooming policies during recruit training while their case continues to be litigated. Sikh religious beliefs require plaintiffs to maintain an unshorn beard and hair, wear a turban and wear other religious items. Plaintiffs contend that denying accommodation of their religious practices violates RFRA, the Free Exercise Clause and the Equal Protection Clause. The court held that even if plaintiffs have shown a likelihood of success on the merits and irreparable injury, the balance of equities and the overall public interest favor the military at this preliminary stage of proceedings. The court said in part:

The Marines have thus "credibly alleged" that "training in [the] manner" that would be required by the requested injunction will "pose a serious threat to national security" by disrupting defendant's well established method of transforming recruits through the discipline of uniformity.

Court Enjoins Idaho Abortion Ban When It Conflicts With Federal Emergency Treatment Requirement

In United States v. State of Idaho, (D ID, Aug. 24, 2022), an Idaho federal district court enjoined the state of Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act.  The court said in part:

[T]he State of Idaho, including all of its officers, employees, and agents, are prohibited from initiating any criminal prosecution against, attempting to suspend or revoke the professional license of, or seeking to impose any other form of liability on, any medical provider or hospital based on their performance of conduct that (1) is defined as an “abortion” under Idaho Code § 18-604(1), but that is necessary to avoid (i) “placing the health of” a pregnant patient “in serious jeopardy”; (ii) a “serious impairment to bodily functions” of the pregnant patient; or (iii) a “serious dysfunction of any bodily organ or part” of the pregnant patient, pursuant to 42 U.S.C. § 1395dd(e)(1)(A)(i)-(iii).

Idaho law permits an abortion only to save the life of the mother.  The Hill reports on the decision.

Court Enjoins Enforcement In Texas Of HHS Emergency Abortion Guidance

In State of Texas v. Becerra, (ND TX, Aug. 23, 2022), a Texas federal district court issued a preliminary injunction prohibiting enforcement in Texas of the Department of Health and Human Services' guidance to hospitals (and accompanying letter) which, relying on the federal Emergency Medical Treatment & Labor Act, requires hospital emergency rooms to perform certain abortions even when they violate Texas law. According to the Guidance, when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition, EMTALA requires emergency rooms to perform it. The court's 67-page opinion said in part:

Texas law already overlaps with EMTALA to a significant degree, allowing abortions in life-threatening conditions and for the removal of an ectopic or miscarried pregnancy. But in Dobbs’s wake and in an attempt to resolve any potential conflict with state law, the Department of Health and Human Services issued Guidance purporting to remind providers of their existing EMTALA obligations to provide abortions regardless of state law. That Guidance goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict. Since the statute is silent on the question, the Guidance cannot answer how doctors should weigh risks to both a mother and her unborn child. Nor can it, in doing so, create a conflict with state law where one does not exist. The Guidance was thus unauthorized. In any event, HHS issued it without the required opportunity for public comment.

Reuters reports on the decision.

Synagogue's Suit Over Zoning Denial Is Dismissed

In Chabad of Prospect, Inc. v. Louisville Metro Board of  Zoning Adjustment,(WD KY, Aug. 23, 2022), a Kentucky federal district court dismissed a suit brought against zoning officials by a synagogue that was denied a conditional use permit to use a home purchased by it for religious services. When the property was put up for sale, zoning rules allowed its use for religious purposes.  However, before plaintiff purchased the property the city removed that provision and required a conditional use permit. Plaintiff was unaware of the change. The court held that plaintiff's Sec. 1983 claim alleging 1st Amendment violations was barred by the statute of limitations. Additionally, it held that plaintiff failed to state a claim under RLUIPA, saying in part:

Chabad alleged only that it chose and purchased the property “specifically” to open a synagogue for the community given that there are “[v]ery few synagogues” in the area and having one in “Prospect is vital to its mission.”... It didn’t allege any delay, expense, and uncertainty due to the burden of the denial. And Chabad never alleged that alternatives are infeasible, nor any other facts that indicate a substantial burden.

The court also rejected a claim under RLUIPA's "equal terms" provision, saying in part:

Chabad hasn’t offered anything to rebut the prediction that a house of worship would be more likely to cause greater traffic problems than regular residential events, even if the religious services are currently smaller....

Finally, the court rejected plaintiffs' state law claims.

Utah Court Strikes Down Ban On Transgender Girls On School Sports Teams

 In Roe v. Utah High School Activities Association, (UT Dist. Ct., Aug. 19, 2022), a Utah state trial court issued a preliminary injunction barring enforcement of a provision in Utah law that bans transgender girls from competing on pre-college girls sports teams. Under Utah law, if the ban is enjoined a School Activity Eligibility Commission is to be created that will consider confidentially on a case-by-case basis whether it would be fair for a particular transgender student to compete on girls' teams. The court said in part:

The Court finds that Plaintiffs have shown a substantial likelihood that the Ban violates the uniform operation of laws (“UOL”) clause of the Utah Constitution....

Both a plain reading of the Ban and relevant case law demonstrate that the legislation classifies individuals based on transgender status and, therefore, on sex....

During the 2021-22 school year, only four of the 75,000 students that played high school sports in Utah were transgender. Of those four, only one student played on a girls’ team.... There is no support for a claim “that allowing transgender women to compete on women’s teams would substantially displace female athletes.”....  

Similarly, Plaintiffs’ evidence suggests that there is no basis to assume that transgender girls have an automatic physiological advantage over other girls. Before puberty, boys have no significant athletic advantage over girls.... Many transgender girls – including two of the plaintiffs in this case – medically transition at the onset of puberty, thereby never gaining any potential advantages that the increased production of testosterone during male puberty may create.... Other transgender girls may mitigate any potential advantages by receiving hormone therapy.... And still others may simply have no discernable advantage in any case, depending on the student’s age, level of ability, and the sport in which they wish to participate. The evidence suggests that being transgender is not “a legitimate accurate proxy” for athletic performance.

AP reports on the decision.

School Policy On Treatment of Transgender Students Upheld

In Parents 1 v. Montgomery County Board of Education, (D MD, Aug. 18, 2022), a Maryland federal district court upheld Guidelines promulgated by Montgomery County, Maryland school officials on dealing with transgender and gender non-conforming students.  Parents particularly challenge the portion of the Guidelines that advise school personnel not to disclose a student’s gender identity to their parents without the student’s consent, especially when the student has not yet disclosed their gender identity to their parents, or if the student either expects or knows their parents are unsupportive. Plaintiffs contend that this violates their parental rights protected by the due process clause of the 14th Amendment. The court said in part:

My review of the Guidelines reveals that the Plaintiff Parents’ argument is based on a selective reading that distorts the Guidelines into a calculated prohibition against the disclosure of a child’s gender identity that aims to sow distrust among MCPS students and their families. In reality, the Guidelines instruct MCPS staff to keep a student’s gender identity confidential until the student consents to the disclosure out of concern for the student’s well-being, and as a part of a more comprehensive gender support plan that anticipates and encourages eventual familial involvement whenever possible....

The court concluded that the Guidelines are subject only to rational basis review. It went on to say that even if it were to apply strict scrutiny, the Guidelines would still be upheld because the state's interest in safeguarding a minor's physical and psychological well-being is compelling. The court also dismissed various claims under Maryland law. WTOP News reports on the decision.

Postal Worker Seeks Supreme Court Modification Of Title VII Precedents On Reasonable Accommodation

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Groff v. DeJoy. In the case, 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. (See prior posting.) Appellants are asking the Supreme Court to repudiate the definition of "undue hardship" which the Court approved in its 1977 decision in TWA v. Hardison. First Liberty issued a press release announcing the filing of the petition for review.

Court Gives Guidance On Assessing Whether Parents Had Sincerely Held Religious Belief Opposing Vaccination

In In the Interest of C.C., (GA Sup. Ct., Aug. 23, 2022), the Georgia Supreme Court gave guidance to a Juvenile Court on how to determine whether parents' objections to vaccinating their children (who were now in custody of the state) are based on a sincerely held religious belief. The court said in part:

Even if the Chandlers do not “observe a particular religion” or attend church consistently, and even if their objection to vaccination is partly secular, they may still be able to identify a religious belief that they sincerely hold and that would be violated by the vaccination of their children.... The juvenile court’s sincerity finding apparently rested at least in part on an assumption to the contrary; this prevents us from affirming this ruling....

In fairness to the juvenile court, the proper standard is not easily reducible to a simple formula; accordingly, we offer the following guidance.... Ultimately, the juvenile court must determine whether the Chandlers’ religious objection to the vaccination of their children is “truly held.” ... The court should “sh[y] away from attempting to gauge how central a sincerely held belief is to the believer’s religion.” And it must bear in mind that “a belief can be both secular and religious. The categories are not mutually exclusive.”...

The juvenile court can weigh various factors, including ... how long the Chandlers have asserted their professed religious belief, how much they know about it, and their reliance on “religious literature and teachings supporting the belief[.]” ... Whether the Chandlers have wavered in their actions related to vaccination “also appears to be relevant[.]”... But the juvenile court should also be cautious in affording more than a little weight to evidence that the Chandlers were inconsistent in visibly living out their religious beliefs; for example, the frequency of the family’s church attendance....

Last Defendant In Poway Synagogue Tax Fraud Scheme Sentenced

The U.S. Attorney's Office for the Southern District of California announced on Friday that attorney Elliot Adler, the eleventh and last individual being prosecuted for the tax fraud scheme connected with Chabad of Poway, was sentenced to one year and one day in prison, fined $20,000, and ordered to forfeit gold coins purchased with funds used in the fraud. According to the announcement:

Beginning at least as early as 2010 and continuing through October 2018, Adler participated in a so-called “90/10” tax scheme with Rabbi Goldstein. Specifically, Adler gave money to Rabbi Goldstein that purported to be a donation to Chabad of Poway. Goldstein then secretly funneled ninety percent of the funds back to Adler, keeping ten percent of the funds as his fee. None of the donated funds was actually given to the Chabad as a charitable donation. Adler then falsely claimed that the fraudulent donations were tax-deductible on his tax returns, allowing him to reduce his personal income tax liability by approximately $500,000 (cumulatively) for tax years 2011 through 2017.

(See prior related posting.)

Religious Objections To Air Force COVID Mandate Dismissed For Lack of Standing and Ripeness

In Miller v. Austin, (D WY, Aug. 22, 2022), a Wyoming federal district court dismissed on standing and ripeness grounds a suit by two Air Force sergeants who face discharge because of their refusal on religious grounds to receive the COVID vaccine.  The court said in part:

Defendants correctly point out "Plaintiffs have filed this lawsuit to avoid the possibility of involuntary separation."... Furthermore, due to the pending class action, Defendants confirmed Miller's August 25, 2022 separation hearing has been paused.... There is no current threat of separation. Plaintiffs have not yet suffered a concrete, particularized, actual injury in fact because Plaintiffs have not been separated from the USAF. Plaintiffs do not have standing to bring this issue.

More damning to Plaintiffs' case, however, is the fact that the religious exemption is still subject to administrative review within the USAF.

International Day Commemorating Victims Of Religious Persecution

Today was International Day Commemorating the Victims of Acts of Violence based on Religion or Belief, so designated by a United Nations General Assembly Resolution (full text) adopted in 2019. A U.N. web page sets out the background and importance of the day. U.S. Secretary of State Anthony Blinken issued a statement (full text) saying in part:

May this day offer assurance to those suffering for their beliefs that the United States and likeminded partners have not forgotten or forsaken you.  We see you, we hear you, and we remain unwavering in our commitment to ensure your freedom, protection, and peaceful exercise of your beliefs.

The Council of the European Union issued a press release marking the occasion, saying in part:

In these times of armed conflicts and humanitarian crises across the globe, individuals, including those belonging to minority groups, continue to be discriminated against, persecuted targeted, killed, detained, expelled or forcefully displaced because of their religion or for holding humanists and /or atheist beliefs. Today is an opportunity to highlight their situation.

No State Action Involved In Barring Of Plaintiff From Moorish Science Temple

In Bey v. Sirius-El, (ED NY, Aug. 19, 2022), a New York federal district court dismissed a suit seeking damages, injunctive relief and criminal prosecution of defendants for barring plaintiff from attending the Brooklyn Moorish Science Temple in person. Plaintiff was barred because of the potential for a conflict between her and a "competing love interest" who has also been attending services. Plaintiff's free exercise claims were dismissed because she did no allege that any state action was involved.

Recent Articles of Interest

From SSRN:

• David Simson, Most Favored Racial Hierarchy: The Ever-Evolving Ways of the Supreme Court’s Superordination of Whiteness,  (Michigan Law Review, Vol. 120, No. 8, 2022).
• Kathleen Brady, Independent and Overlapping: Institutional Religious Freedom and Religious Providers of Social Services, (Loyola University Chicago Law Journal, Forthcoming).
• Perry Dane, The Anomalous Free Speech Clause (August 12, 2022).
• Hershey H. Friedman & Linda Weiser Friedman, Encounters with God: Rabbinic Stories and What We Can Learn from Them, (August 14, 2022).
• Kaiponanea T. Matsumura, The Marital Habitus, (Washington University Law Review, Vol. 99, No. 6, 2022).
• Zheng Zhang, Counterterrorism in the Post-Epidemic Era, (April 1, 2022).

From SSRN (Abortion Rights):

• Tyler Valeska, Abortion Speech Suppression (July 28, 2022).
• David Landau & Rosalind Dixon, Dobbs, Democracy, and Dysfunction (August 9, 2022).
• I. Glenn Cohen, Melissa Murray & Lawrence O. Gostin, The End of Roe v Wade and New Legal Frontiers on the Constitutional Right to Abortion, (The Journal of the American Medical Association, published online July 8, 2022).
• Dov Fox, What Will Happen if Doctors Defy the Law to Provide Abortions?, (New York Times (online), July 17, 2022).

From SSRN (European Law):

• Julie Ringelheim & Stijn Smet, Secularism and State Neutrality in Constitutional Adjudication: A Comparative Analysis of Belgium, Germany and France, (in P. Nihoul, B. Renauld and J. Theunis (eds), Réflexions autour de la laïcité – Reflecties over laïciteit. Liber amicorum François Daout, Anthemis (2022)).
• Daid de Groot, Bans on Conversion 'Therapies' - The Situation in Selected EU Member States, (European Parliamentary Research Service, PE 733.521 (2022)).

From SmartCILP and Elsewhere:

• C. Scott Maravilla, Lifting the Veil by Covering It: European Prohibitions on the Practice of Veiling Constitute the Forced Covering of Muslim Women, 51 University of Baltimore Law Review 73-102 (2021).
• Columbia Law School Law, Rights and Religion Project, A Religious Right To Abortion: Legal History and Analysis,(2022).

Michigan County Prosecutors Temporarily Enjoined From Enforcing Pre-Roe Abortion Ban

As reported by Bridge Michigan, a Michigan state trial court judge yesterday issued a preliminary injunction barring county prosecutors from enforcing a 1931 statute banning abortion. The injunction prevents enforcement while the constitutionality of the statute is being litigated. According to the report:

[Judge] Cunningham said the danger of harm to women and doctors if the ban were allowed to take effect “could not be more crystal clear.”

“The court finds the statute dangerous and chilling to our state's population, childbearing people and the medical professionals that care for them”....

Other Michigan courts have already barred the state Attorney General's office from enforcing the pre-Roe statute. (See prior posting.) The court yesterday postponed any further hearings until after the November elections in which a proposed state constitutional amendment on abortion rights will likely be on the Michigan ballot.

Michigan Governor Gretchen Whitmer issued a statement (full text) welcoming the court's decision.

Some Of Fired Pastor's Claims Can Move Ahead

In Nation Ford Baptist Church Inc. v. Davis, (NC Sup.Ct., Aug. 19, 2020), the North Carolina Supreme Court allowed a Pastor to move ahead with a portion of his claims challenging his firing, saying in part:

Which set of corporate bylaws were in effect at the relevant time, whether the Church and Board followed the procedures set forth in the bylaws, and whether there was a contract of employment between Pastor Davis and the Church that was breached are factual and legal questions that are appropriately answered by reference to neutral principles of corporate, employment, and contract law....

Nonetheless, other claims raise questions that cannot be answered without considering spiritual matters. These claims must be dismissed for lack of subject matter jurisdiction....

[I]n all other respects the first claim for relief goes too far, particularly in the remedy sought, because the court can neither declare Pastor Davis the spiritual leader of the Church nor require that he be allowed to conduct services. Addressing this controversy would entangle the court in religious matters such as whether Pastor Davis adequately performed his duties as a pastor as that role is understood in accordance with the Church’s faith and religious traditions.

[Thanks to Will Esser via Religionlaw for the lead.]

Fire Department Chaplain Dismissed Because Of His Blog Posts Files Suit

An ordained Christian minister who has been a volunteer fire department chaplain in Austin, Texas filed suit in a Texas federal district court yesterday alleging that his free speech and free exercise rights were violated when the fire department terminated him as a chaplain because of his social media posts.  The complaint (full text) in Fox v. City of Austin, (WD TX, filed 8/18/2022), alleges in part:

Dr. Andrew K. Fox ... helped start Austin’s fire chaplaincy program and served as its lead chaplain—a volunteer position—for eight years. That abruptly changed when Dr. Fox posted something on his personal blog that Austin officials considered unacceptable: his religious belief that men and women are created biologically distinct and his view that men should not compete on women’s sports teams. After Austin officials demanded that Dr. Fox recant and apologize for expressing these beliefs and Dr. Fox refused, they terminated him....

Under the City’s standard, no one who openly holds historic Christian beliefs about the immutable differences between men and women can serve as a chaplain or in any other fire department position.... When the government can needlessly punish people for professing views outside of work on matters of ongoing public debate, that chills everyone’s speech and discourages democratic participation.

ADF issued a press release announcing the lawsuit.

Court Lifts Pre-Dobbs Injunction Against Enforcement Of North Carolina Abortion Ban

 In Bryant v. Woodall, (MD NC, Aug 17, 2022), a North Carolina federal district court lifted an injunction it had entered in 2019 enjoining enforcement North Carolina statutes that prohibited pre-viability abortions. The court said in part:

None of the parties argue that the injunction remains legally enforceable, nor could they. The injunction was entered under the authority of Roe and Casey; that precedent has been overruled by Dobbs. Because the power to regulate abortion has been returned to the states, the parties’ suggestion that this court’s injunction is having an effect, whether preventing “confusion,”... or “preserv[ing] Plaintiffs’ ability to provide critical healthcare services,”... suggests the parties are improperly relying upon, and asserting, an injunction that is no longer lawful.

ADF issued a press release announcing the decision.

Maine's COVID Vaccine Mandate, Without Religious Exemption, Is Upheld

 In Lowe v. Mills, (D ME, Aug. 18, 2022), a Maine federal district court rejected challenges by seven healthcare workers to Maine's COVID vaccination requirement for healthcare workers. No religious exemption is available; medical exemptions are available. The court rejected plaintiffs Title VII religious discrimination claim, saying in part:

[I]f the Hospital Defendants had granted the sole accommodation sought by the Plaintiffs, it would result in an undue hardship by subjecting the Hospital Defendants to the imposition of a fine and the “immediat[e] suspension of a license.”

The court also rejected plaintiffs' 1st Amendment Free Exercise claims, saying in part:

In the context of the COVID-19 vaccine mandate, the medical exemption is rightly viewed as an essential facet of the vaccine’s core purpose of protecting the health of patients and healthcare workers, including those who, for bona fide medical reasons, cannot be safely vaccinated. In addition, the vaccine mandate places an equal burden on all secular beliefs unrelated to protecting public health—for example, philosophical or politically-based objections to state-mandated vaccination requirements—to the same extent that it burdens religious beliefs. Thus, the medical exemption available as to all mandatory vaccines required by Maine law does not reflect a value judgment unfairly favoring secular interests over religious interests. As an integral part of the vaccine requirement itself, the medical exemption for healthcare workers does not undermine the vaccine mandate’s general applicability.

Commission Recommends Changes In Australian State's Anti-Discrimination Laws

On Aug. 16, the Law Reform Commission of Western Australia sent to Parliament its 297-page Final Report on its Review of the Equal Opportunity Act 1984 (WA) (full text). The Report makes 163 recommendations for changes in Western Australia's anti-discrimination laws. In connection with the Act's ban on discrimination based on religious conviction, the Report's Recommendation 51 provides:

Religious conviction should be defined in the Act. It should be defined as:
• having a religious conviction, belief, opinion or affiliation;
• engaging in religious activity;
• appearance or dress required by, or symbolic of, the person’s religious conviction;
• the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples;
• engaging in the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples;
• not having a religious conviction, belief, opinion or affiliation; and
• not engaging in religious activity.

The word religious should not be defined.

The Report also makes recommendations relating to discrimination on the basis of gender identity, sex characteristics and sexual orientation. It makes extensive recommendations on religious exceptions to anti-discrimination rules.

Christian Schools Australia issued a press release criticizing the Report.

Court Reverses Sanctions Imposed On Church For Violating COVID Orders

In People v. Calvary Chapel, San Jose, (CA App., Aug. 15, 2022), a California state appellate court annulled contempt orders imposed by trial courts and reversed trial court imposition of monetary sanctions which resulted from a church's refusal to comply with state COVID public health orders. The order restricted the holding and conduct of public gatherings. The court said in part:

[W]e conclude that the temporary restraining orders and preliminary injunctions are facially unconstitutional pursuant to the recent guidance of the United States Supreme Court regarding the First Amendment’s protection of the free exercise of religion in the context of public health orders that impact religious practice (see, e.g., Tandon v. Newsom (2021) ....) As the underlying orders which Calvary Chapel violated are void and unenforceable, we will annul the orders of contempt in their entirety and reverse the orders to pay monetary sanctions.

Advocates for Faith & Freedom issued a press release announcing the decision and reporting that Santa Clara County is still attempting to enforce $2.8 million in fines imposed for violation of county health orders.