Britain's Inquiry Into Child Sexual Abuse Publishes Its Final Report

In Britain yesterday, the Independent Inquiry into Child Sexual Abuse which was established in 2015 under the Inquiries Act 2005 published its Final Report. (Full text).  The Executive Summary says in part:

This report is the final statutory report published by the Independent Inquiry into Child Sexual Abuse (the Inquiry). In accordance with the Terms of Reference, it sets out the main findings about the extent to which State and non-State institutions failed in their duty of care to protect children from sexual abuse and exploitation and makes recommendations for reform. It draws on the Inquiry’s 15 investigations and 19 related investigation reports, the Interim Report of the Independent Inquiry into Child Sexual Abuse and 41 other Inquiry reports and publications. The Inquiry has made 20 recommendations in this report. These final recommendations complement the 87 recommendations contained in the previously published investigation reports (including six which have been restated).

Among the Inquiry's 15 investigations were ones into the Roman Catholic Church in England and Wales and the Anglican Church.

Profs Sue University for Including Caste in Antidiscrimination Policy

Suit was filed on Monday in a California federal district court by two California State University professors challenging the University's inclusion of discrimination on the basis of caste in its Interim Antidiscrimination Policy adopted in January. The complaint (full text) in Kumar v. Koester, (CD CA, filed 10/17/2022) alleges in part:

[T]he Interim Policy seeks to define the Hindu religion as including “caste” and an alleged oppressive and discriminatory caste system as foundational religious tenets. That not only is an inaccurate depiction of the Hindu religion, but the First Amendment to the United States Constitution prohibits California and CSU from defining the contours of Hinduism (or any religion)....

The Interim Policy also singles out only CSU’s Hindu employees, professors and students, as well as those of Indian/South Asian origin. No other Protected Status in the Interim Policy addresses any specific ethnicity, ancestry, religion or alleged religious practice,,,

Plaintiffs seek a determination that the term “caste” as used in the Interim Policy is unconstitutionally vague, and the Interim Policy as drafted violates the rights of Plaintiffs (and similarly situated individuals) under the First and Fourteenth Amendments to the United States Constitution, as well as their rights under the California Constitution.

The Hindu American Foundation issued a press release announcing the filing of the lawsuit.

Biden Calls For Federal Law Protecting Abortion Rights

In a talk (full text) at a political event at the Howard Theater in Washington, D.C. on Tuesday, President Biden called for a federal law protecting abortion rights.  He said in part:

And I’ve said before: The Court got Roe right nearly 50 years ago, and I believe Congress should codify Roe once and for all....

Right now, we’re short a handful of votes.  If you care about the right to choose, then you got to vote.  That’s why, in these midterm elections, it’s so critical to elect more Democratic senators to the United States Senate and more Democrats to keep control of the House of Representatives....

And, folks, if we do that, here is the promise I make to you and the American people: The first bill that I will send to the Congress will be to codify Roe v. Wade....  And when Congress passes it, I’ll sign it in January, 50 years after Roe was first decided the law of the land.,,,

European Commission Holding Conference on Halal and Kosher Slaughter

Jerusalem Post reports that today in Brussels, the European Commission, in partnership with the Council of Europe, the OSCE and the U.N. Commissioner for Equality, will hold a conference on "Freedom of religion with regard to religious slaughter." According to the European Commission:

The conference will bring together representatives of the European Union (EU) Member States and other national authorities, special envoys and coordinators on combating antisemitism and anti-Muslim hatred, representatives of national Jewish, Muslim and other religious communities, international organizations and independent experts.

European Court OK's Company Rule Neutrally Banning Wearing of All Signs of Religious Belief

 In L.F. v. S.C.R.L., EU EDJ, Oct. 13, 2022), the Court of Justice of the European Communities, in a request from Belgium for a preliminary ruling, held that a private company may prohibit employees from wearing all visible signs of political, philosophical or religious belief in the workplace.  This would not constitute direct discrimination on the ground of religion or belief in violation of Council Directive 2000/78 so long as the company's policy covers any manifestation of religious, philosophical or spiritual beliefs without distinction and treats all employees alike by requiring them in a general and undifferentiated way to dress neutrally. Such a rule might constitute indirect discrimination if it had a disparate impact on persons of one religion, but would not if it were objectively justified by a legitimate aim and the means of achieving that aim were appropriate and necessary. The question arose in the context of a company's refusal to employ a Muslim woman as an intern because she insisted on wearing a hijab. The Court issued a press release announcing the decision. Law & Religion UK also has coverage.

Recent Articles of Interest

From SSRN:

• Hershey H. Friedman, Mesmerizing Narratives of the Talmud: In Which God Laughs, Satan Sulks, Elijah Rebukes, and Jesters go to Heaven, (August 25, 2022).
• Taylor Kordsiemon, A Right to Marital Rape? The Immorality of the Dobbs Approach to Unenumerated Rights, (12 HLRe 90 (2022)).
• Robin Fretwell Wilson, Harm, Not Privilege. Review of: John Adenitire A General Right to Conscientious Exemption: Beyond Religious Privilege (Cambridge University Press, 2020), Keele Law Review, Volume 4 (2022) 13-41.
• Katie R. Eyer, Transgender Equality and Geduldig 2.0, (October 7, 2022).
• Yvonne Lindgren, Dobbs v. Jackson Women's Health and the Post-Roe Landscape, (October 4, 2022).

From SmartCILP:

• Early Arguments and Contemporary Thoughts: A Festschrift Honoring Michael J. Perry, Emory Law Journal, Vol. 71, Issue 7 (2022).
• John Paul Kimes, Scandal and Due Process: A Canonical Response to the McCarrick Case, [Abstract], 36 Notre Dame Journal of Law Ethics & Public Policy 237-264 (2022).

European Court: Suspended Prison Sentence For Protest In Catholic Church Violated Rights Of Abortion Rights Activist

In Bourton v. France, (ECHR, Oct. 13, 2022) (full text of decision in French), the European Court of Human Rights in a Chamber Judgment held that a French court's imposition of a suspended one-month prison sentence on a 39-year feminist activist charged with "sexual exposure" violated her rights of freedom of expression under the European Convention on Human Rights. The French court had also ordered defendant to pay damages and costs totaling 3500 Euros.  According to the English language press release from the European Court:

On 20 December 2013 [Eloise Bouton] staged a protest in the church of La Madeleine in Paris, but not during mass, by standing in front of the high altar while exposing her breasts, revealing slogans daubed across her body, and pretending to carry out an abortion using raw beef liver as a prop. Her performance was brief and she left the church when so requested by the choirmaster. The protest received media coverage, about ten journalists having been present....

The purpose of the applicant’s mise en scène had been to convey, in a symbolic place of worship, a message relating to a public and societal debate on the positioning of the Catholic Church on a woman’s right to free disposal of her body, including the right to have an abortion.

In these circumstances, the [European] Court [of Human Rights] took the view that the applicant’s freedom of expression should have been afforded a sufficient level of protection since the content of her message related to a matter of public interest....

The Court reiterated that the imposition of a prison sentence for an offence in the area of political speech would be compatible with freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, as, for example, in the case of hate speech or incitement to violence....

The Court found that the grounds given by the domestic courts had not been sufficient for it to consider that they had weighed up the interests at stake in an appropriate manner and in accordance with the criteria established in its case-law....

Pakistan Agency Creates Unit To Handle Blasphemy Complaints

The News on Sunday reports that on Oct. 6 Pakistan's Federal Investigation Agency announced that it has created a dedicated unit to deal with complaints of blasphemy on social media. The report says in part:

Sources in the FIA say the Agency has inadequate manpower and that many officials in its Cybercrime Wing are contractual employees. The number of complaints lodged with the Wing under various categories runs into tens of thousands, an official said. A majority of these complaints are pending because the staff is overburdened.

Lawyer Saiful Malook who has defended several people from marginalised segments of the society accused of blasphemy says the notification is discriminatory. “Neither a high court nor the FIA on its own can create a dedicated unit that is discriminatory and relates to religious freedom and persecution,” he says.

DC Circuit Hears Oral Arguments From Sikh Marine Enlistees

On Tuesday, the D.C. Circuit Court of Appeals heard oral arguments in Singh v. Berger. (Audio of full oral arguments.) In the case, 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. (See prior posting.) PTI reports on the oral arguments.

Christian Counselor Challenges City's Conversion Therapy Ban

Suit was filed yesterday in a Wisconsin federal district court challenging the city of La Crosse's ordinance that prohibits medical and mental health professionals from engaging in conversion therapy with anyone under 18 years of age. The complaint (full text) in Buchman v. City of La Crosse, (WD WI, filed 10/13/2022), alleges that the ban on counseling minors to change their sexual orientation, gender identity, gender expression or behaviors violates free speech and free exercise rights of plaintiff, a licensed counselor who approaches counseling through "a Christ-centered lens". It also alleges that the ban is unconstitutionally vague and violates the Wisconsin Constitution's protection of the right of conscience. The complaint says in part:

The Ordinance thus interferes with Ms. Buchman’s ability to decide matters of faith and doctrine for herself and to then infuse her work with these religious beliefs. It attempts to dictate and influence Ms. Buchman’s resolution of those matters. It forces her to choose between her faith and government penalty.

Wisconsin Spotlight reports on the lawsuit.

Anti-Abortion Sidewalk Counselor Challenges Sign Permit Requirement

Suit was filed this week in a Maryland federal district court alleging that Baltimore's sign permit ordinance violates plaintiff's free speech and free exercise rights. The complaint (full text) in Roswell v. City of Baltimore, (D MD, filed 10/10/2022), seeks a preliminary injunction to prevent the city from requiring plaintiff to obtain permits in order to use A-frame signs when engaging in religiously-motivated sidewalk anti-abortion counseling at a Planned Parenthood facility. Thomas More Society issued a press release announcing the filing of the lawsuit.

Pre-School Teacher Sues After Being Fired For Her Stance On Same-Sex Marriage

A child-care employee who was fired by her employer for refusing to read to her pre-schoolers books that celebrate same-sex relationships has filed suit alleging religious discrimination, wrongful termination, harassment and retaliation. The complaint (full text) in Parisenkova v. Bright Horizons Children's Center, LLC, (CA Super. Ct., filed 10/13/2022), filed in a California state trial court, alleges that plaintiff's Christian religious beliefs prevent her from promoting messages that support same-sex marriage. After an initial informal accommodation, the school's director, who took personal offense at plaintiff's religious beliefs, refused to grant plaintiff a formal religious accommodation.  As a prelude to her dismissal, plaintiff was forced to leave the school building mid-day in extremely hot weather.  Plaintiff was terminated after she refused the requirement that she receive diversity awareness training. Thomas More Society issued a press release announcing the filing of the law suit.

Religious Questioning Of Muslim Travelers By Border Officers Upheld

In Kariye v. Mayorkas, (CD CA, Oct. 12, 2022), three Muslim plaintiffs sued the Department of Homeland Security alleging that border officers routinely and intentionally single out Muslim-American travelers to demand they answer religious questions. The court, in a 71-page opinion in its official format, first dismissed plaintiffs' Establishment Clause challenge. Applying the Supreme Court's test articulated in Kennedy v. Bremerton School District, the court said in part:

The court finds substantial legal authority supporting the government's historically broad authority to implement security measures at the border.... Additionally, the court finds substantial authority holding that maintaining border security is a compelling government interest.

The court rejected plaintiffs' free exercise claim, finding that plaintiffs had not sufficiently alleged a substantial burden on their religious exercise. It additionally concluded that even if there was a substantial burden, officers' questioning was narrowly tailored to advance a compelling governmental interest in protecting borders and preventing potential terrorism.

The court also rejected freedom of association, retaliation, equal protection and RFRA challenges to practices of border officers.

Vaccine Objector Loses Challenge

In Marte v. Montefiore Medical Center, (SD NY, Oct. 12, 2022), a New York federal district court dismissed claims by a former Medical Center employee who sued after the Medical Center refused to provide her a reasonable accommodation when she refused to receive a COVID-19 vaccine which was required for all employees.  The court rejected her Title VII claim saying in part:

Plaintiff does not allege that she informed Defendant that she had a religious objection to the COVID-19 vaccination, or even that Defendant was aware that she has a religious objection to the vaccine; she pleads only that she told her employer she did not want the vaccine and asked for "a reasonable accommodation as defined by law." ... Defendant could not have discriminated against Plaintiff on the basis of her religious beliefs if Defendant was unaware of those beliefs....

Even if Plaintiff had pleaded a prima facie claim for religious discrimination, her argument is foreclosed by the Second Circuit's decision in We The Patriots. Defendant correctly argues that Plaintiff's requested accommodation would qualify as an undue hardship because it required Defendant to violate the law.

The court also rejected her free exercise, equal protection and other challenges.

8th Circuit: City Food Ordinance Did Not Violate Pastor's Free Speech Rights

In Redlich v. City of St. Louis, (8th Cir., Oct. 12, 2022), the U.S. 8th Circuit Court of Appeals affirmed the dismissal of a suit brought by a Christian pastor and his assistant challenging a city ordinance that required a permit to distribute potentially hazardous food. Plaintiffs had previously been cited for distributing bologna sandwiches to hungry people they encountered in St. Louis. They contended that as applied to them, the ordinance violated their free speech rights. The court held that even assuming plaintiffs' actions amounted to expressive conduct, the ordinance furthers a substantial governmental interest and is narrowly tailored to that interest. It said in part:

Appellants would be required to pay a $50 fee for the permit at least two days in advance of their food-sharing activities and notify the City of both the time and place where the food would be distributed. These provisions ensure that health inspectors have an opportunity to determine whether the temporary food establishment is complying with the Ordinance.

Courthouse News Service reports on the decision.

New York Yeshivas Sue Over Substantial Equivalency Guidelines

In New York, a group of yeshivas and two organizations have sued challenging the state Board of Regents recently adopted guidelines implementing NY Education Law §3204(2) which requires instruction in nonpublic schools to be at least "substantially equivalent" to that in public schools in the same city or district. The complaint (full text) in In re Parents for Educational and Religious Liberty in Schools, (Albany County Sup. Ct., filed 10/9/2022), alleges in part:

... [T]he New York State Education  Department... has spent the last half decade seeking to impose greater requirements and heightened oversight on these schools than are imposed on other schools in New York, whether public or private....

First, the New Regulations violate the New York State Administrative Procedures Act ... because the public comment process was a sham.... Here, NYSED received more than 300,000 comments in opposition to the proposed regulations but did not truly consider them and did not make any substantive revisions....

Second, the New Regulations violate SAPA by imposing on yeshivas obligations and restrictions not found in other schools. Only yeshivas ... will be prohibited from offering instruction ... in a student’s home language....

Third, the New Regulations create an impermissible de facto licensing requirement through the review and determination process....

The New Regulations frustrate the Petitioners’ constitutionally protected rights to the free exercise of religion and free speech, and violate their due process rights and right to equal protection. 

Hamodia reports on the lawsuit.

Physician Assistant Sues Hospital That Fired Her Over Treatment Of Transgender Patients

 A suit was filed on Tuesday in a Michigan federal district court by a woman who had worked as a physician assistant for 17 years, but was then fired for refusing, on religious grounds, to refer patients for gender transitioning drugs and procedures and to use pronouns that correspond to a patient's gender identity rather than their biological sex. In a claim denied by the fired employee, it was also claimed she altered template pronouns on medical records.  The complaint (full text) in Kloosterman v. Metropolitan Hospital, (WD MI, filed 10/11/2022), alleges in part:

9. By exhibiting open hostility toward Ms. Kloosterman’s religious beliefs, University of Michigan Health-West officials violated the Free Exercise Clause.... 

10. By accommodating secular preferences while refusing to grant a religious accommodation to Ms. Kloosterman, University of Michigan Health-West’s actions trigger and fail strict scrutiny under the Free Exercise Clause.... 

11. By seeking to compel Ms. Kloosterman to speak biology-obscuring pronouns that would violate her conscience and her medical judgment, as doing so could cause patients to miss potentially life-saving screenings, University of Michigan Health-West also violated the Free Speech Clause.... 

12. When it engaged in the aforementioned actions and fired Ms. Kloosterman, University of Michigan Health-West also violated the Fourteenth Amendment’s Equal Protection Clause, as well as Article I, §§ 2, 4, and 5 of the Michigan Constitution and the Elliott-Larsen Civil Rights Act of 1976....

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

Certiorari Denied In Fetal Personhood Case

The U.S. Supreme Court today denied review in Doe v. McKee,  (Docket No. 22-201, certiorari denied 10/11/2022) (Order List). The certiorari petition  asked the Supreme Court to review a decision of the Rhode Island Supreme Court that held unborn fetuses do not have due process and equal protection rights under the U.S. Constitution and do not have standing to challenge Rhode Island's Reproductive Privacy Act which granted the right to abortions consistent with Roe v. Wade. CNN reports on the Court's action. [Thanks to Thomas Rutledge for the lead.]

Suit Challenges Kentucky Abortion Bans As Violating Jewish Religious Beliefs

Suit was filed last Thursday in a Kentucky state trial court by three Jewish women who contend that Kentucky's strict abortion bans violate their religious freedom rights. The complaint (full text) in Sobel v. Cameron, (KY Cir. Ct., filed 10/6/2022), alleges that Kentucky law might be read to make it a capital offense to discard excess embryos created in the process of in vitro fertilization. The complaint alleges in part:

35. Under Jewish law, a fetus does not become a human being or child until birth. Under no circumstances has Jewish law defined a human being or child as the moment that a human spermatozoon fuses with a human ovum.

36. The question of when life begins for a human being is a religious and philosophical question without universal beliefs across different religions....

39. Plaintiff’s religious beliefs demand that they have more children through IVF, yet the law forces Plaintiffs to spend exorbitant fees to keep their embryos frozen indefinitely or face potential felony charges. This dilemma forces Plaintiffs to abandon their sincere religious beliefs of having more children by limiting access to IVF and substantially burdens their right to freely exercise these sincerely held religious belief....

51. Kentucky's contemporary Abortion Law is focused on preservation of ova and blastocysts on the basis of a religious understanding of fetal personhood.....

The complaint alleges that Kentucky abortion laws are void for vagueness and unintelligibility; violate the Kentucky Religious Freedom Restoration Act; and violate the Kentucky Constitution by giving preference to sectarian Christianity and diminishing Plaintiffs' privileges, rights, and capacities on account of their Jewish faith and beliefs. Los Angeles Times reports on the lawsuit.

Recent Articles of Interest

 From SSRN:

• Hiram Sasser & Lea Patterson, The Religious Liberty Solution to Big Tech Censorship: How the Religious Freedom Restoration Act Limits Section 230 , (26 Tex. Rev. L. & Pol. 607 (2022)).
• Elizabeth Sepper & James David Nelson, Adolf Berle's Corporate Conscience, (45 Seattle University Law Review 97 (2021)).
• Björn Hoops & Karlijn van der Voort, Demolitions of Homes and Seizures of Land of the Bahá’í Minority in Iran: A (Constitutional) Property Law and International Law Perspective, (August 25, 2022).
• Gibson Ikanone, The Pathway to Religious Tolerance in Nigeria  (August 4, 2022).
• Roger Paul Alford, On Foxes and Hedgehogs: John Nagle’s Many Means to One Great End, (97 Notre Dame L. Rev. Reflection 87 (2022)).
• Nausica Palazzo, Comprehensive Security and LGBTQ Rights,  (Review of Faith and International Affairs, Vol. 20, 2022, Forthcoming).
• Peter J. Oliver, What Fundamental Rights, if Any, Should Companies Enjoy? A Comparative Perspective, (Revue européenne du droit, Issue 4 • Summer 2022).
• Pnina Lifshitz Aviram & Yehezkel Margalit, From Roe v. Wade to Dobbs v. Jackson – Between Women's Rights Discourse and Obligations Discourse, (Forthcoming, Health Matrix: Journal of Law-Medicine, Vol. 33, 2023).
• Imran A. Nyazee, Corporate Personality in Fiqh (Islamic Law),  October 4, 2022).

From SmartCILP:

• Jennifer Allison & Jonathan S. Hack, Yehi Shalom Be'Heylekh Shalvah Be'Armenotayikh': Beit Din Arbitration as a Model for Wholistic Dispute Resolution, 51 Cumberland Law Review 395-418 (2021).
• Yanay Israeli, The Requerimiento in the Old World: Making Demands and Keeping Records in the Legal Culture of Late Medieval Castile, 40 Law & History Review 37-62 (2022).
• Justin Marceau, Book Review. God's Law and Order: The Politics of Punishment in Evangelical America, by Aaron Griffith, [Abstract], 40 Law & History Review 167-170 (2022).

City's Harassment Of Private Prayer Services In Rabbi's Home Violated 1st Amendment

In Congregation 3401 Prairie Bais Yeshaya D'Kerestir, Inc. v. City of Miami, (SD FL, Oct. 6, 2022), a Florida federal district court refused to dismiss claims that city officials' harassment of a rabbi's home that hosted daily minyans (prayer services) for invited guests violated the 1st Amendment.  Private groups worshiping in a person's home are permitted in residential areas under the city's zoning code. The court said in part:

Defendant, wielding the City Code "like a club" ... issued multiple erroneous citations against Plaintiff for zoning code violations...; sent City personnel to the Property a staggering 126 times...; installed a surveillance camera that monitors only the Property ...; conducted at least one warrantless search...; and otherwise singled Plaintiffs out for harassment.... These events have had "a chilling effect on Plaintiff[s'] First Amendment Rights."... . Defendant's conduct, at least as alleged, could certainly "chill a person of ordinary firmness from exercising his or her First Amendment rights."  [Quote updated.]

Physicians Ask Arizona Court To Reconcile Competing Abortion Laws

In Arizona, a physician and the Arizona Medical Association have filed a declaratory judgment action in an Arizona trial court asking the court to clarify which of two competing laws on abortion is in effect in the state. The complaint (full text) in Isaacson v. State of Arizona, (AZ Super. Ct., filed 10/3/2022), explains:

3. Most recently, the Legislature passed, and Governor Ducey signed, a law permitting physicians to provide abortions through 15 weeks of pregnancy.... 

4. Since the Dobbs decision was issued on June 24, overturning Roe v. Wade, ... there has been significant confusion around the status of Arizona’s abortion laws, and specifically whether a near total criminal ban on abortion, A.R.S. § 13-3603 (the “Territorial Law”), that was enacted in 1901 but can be traced back to 1864, preempts dozens of existing abortion laws, including the 15-Week Law, and criminalizes otherwise legal, physician-provided abortion care. State officials with enforcement power have either refused to state which abortion laws take precedence or have taken inconsistent positions on the matter.

5. On July 13, 2022, the Arizona Attorney General filed a Rule 60(b) motion in the Pima County Superior Court seeking to lift an injunction of the Territorial Law that had been in place since 1973. On September 23, 2022, the Pima County Superior Court granted the Attorney General’s motion solely based on the decision in Dobbs overruling Roe v. Wade. The court declined to reconcile how the Territorial Law is to operate in harmony with Arizona’s more recent and much more robust statutory scheme governing physician-provided abortion care....

[Thanks to Courthouse News Service for the lead.]

Texas Federal District Court Invalidates HHS and EEOC Guidance On Application Of Bostock Decision

In State of Texas v. EEOC, (ND TX, Oct. 1, 2022), a Texas federal district court held that Guidance documents issued by the EEOC and by the Department of Health and Human Services are unlawful. It vacated and set aside the Guidance documents. At issue are the HHS and EEOC applications of the Supreme Court's Bostock decision. Bostock held that sex discrimination in Title VII includes discrimination because of sexual orientation or gender identity. The HHS Guidance interprets the Affordable Care Act, the Rehabilitation Act and the ADA to prohibit denial of gender-affirming care by healthcare providers. The Texas federal district court says that Bostock  only bars discrimination based on sexual orientation or gender identity status, and does not extend to discrimination based on conduct related to those statuses. The court concluded that the HHS Guidance is arbitrary and capricious because it misstates the law (in part by suggesting that gender dysphoria is a disability under the ADA) and does not detail what went into the Department's decision making. The court held that the EEOC violated procedural rules in issuing its Guidance. Texas Attorney General Ken Paxton issued a press release reacting to the decision. Texas Tribune reports on the decision.

Alternatives For Employees With Religious Exemptions From Vaccination Are Not Discriminatory

In Dollar v. Goleta Water District, (CD CA, Oct. 3, 2022), a California federal district court held that the COVID vaccination policy for employees of the Goleta Water District did not discriminate on the basis of religion against employees who obtained a religious exemption. Plaintiffs contended that the District's policy is discriminatory because it imposes special mask and testing requirements and requires authorization to enter certain buildings for plaintiffs because they have a religious exemption. The court said in part:

[P]laintiffs have not alleged that employees who receive exemptions on religious grounds are treated any differently from employees who receive exemptions on non-religious grounds. Instead, plaintiffs have only alleged that the policy treats them differently from other employees because of their vaccination status, not because of their religion.

School Counselor's Employment Agreement Sufficient To Invoke Ministerial Exception Doctrine

In Fitzgerald v. Roncalli High School, Inc., (SD IN Sept. 30, 2022), an Indiana federal district court invoked the ministerial exception doctrine to dismiss a suit brought by Michelle Fitzgerald, a Catholic high school guidance counselor who was fired after the school and the church that oversaw it learned that she was in a same-sex marriage. The court said in part:

Fitzgerald argues that Roncalli never entrusted her with religious teaching duties by raising numerous genuine factual disputes over what exactly she did at the school. She contends the record demonstrates that Roncalli entrusted her in description alone. She never engaged in religious teaching, nor did Roncalli expect her to....

[However,] Fitzgerald's employment agreement and Roncalli's description of Fitzgerald's expected duties are, alone, sufficient to resolve this case because those documents make clear that Roncalli entrusted Fitzgerald to teach the Catholic faith and carry out Roncalli's religious mission....

All this indicates Roncalli entrusted guidance counselors like Fitzgerald to convey the Church's message in addition to their secular duties. And under Seventh Circuit precedent, Fitzgerald's non-performance of these entrusted duties makes her "an underperforming minister" who may be removed pursuant to the ministerial exception.

Washington Examiner reports on the decision.

5th Circuit Hears Oral Arguments On Alabama COVID Limits On Religious Gatherings

 On Oct. 3, the 5th Circuit U.S. Court of Appeals heard oral arguments (audio of full arguments) in Spell v. Edwards. Former Alabama Supreme Court Chief Justice and U.S. Senate candidate Roy Moore argued for appellant. In the case, a Louisiana federal district court dismissed a challenge to a now expired COVID Order limiting the size of religious gatherings. The district court dismissed because the challenged restrictions had already expired, and defendants had qualified immunity in the claim for damages. (See prior posting.) AP reports on the oral arguments.

5th Circuit: Confiscation Of Prisoner's Religious Material Upheld

 In DeMarco v. Bynum, (5th Cir., Oct. 4, 2022), the U.S. 5th Circuit Court of Appeals upheld the dismissal of a suit brought by an inmate who contended that confiscation of his religious material violated his First Amendment rights. The court said in part:

DeMarco concedes that he did not store his religious materials as required by AD-03.72. And this court has previously indicated that TDCJ policies regarding storage of personal property do not infringe on a prisoner’s right to free exercise of religion....

Bynum’s confiscation of DeMarco’s religious materials was reasonably related to a legitimate penological objective.... There is also an alternative way for DeMarco to exercise his First Amendment rights, by accessing religious reading materials through the prison chaplain. The impact of accommodating DeMarco’s constitutional rights on other prisoners, guards, and prison resources could be great, given the management and safety concerns underlying the policy....

Moreover, even if Bynum had violated DeMarco’s constitutional rights, the district court correctly found that Bynum was entitled to qualified immunity because his actions were objectively reasonable.

Court Rejects Religious Defense To Illegal Possession Of Firearm Charges

In United States v. Harper, (ND IA, Sept. 30, 2022), an Iowa federal district court refused to dismiss indictments charging defendant with  possession of a firearm by a felon and unlawful drug user.  Defendant argued that he is a Muslim who practices Sharia Law which calls for armed self-defense, including the possession of a firearm. The court, accepting the Report and Recommendation [Lexis link] of a magistrate judge, said in part:

There is no less restrictive means to achieve the Government’s compelling interest in uniformly applying gun laws for public safety than prosecuting Harper.

Michigan Ban On Use Of State Funds For Private And Religious Schools Upheld

In Hile v. State of Michigan, (WD MI, Sept. 30, 2022), a Michigan federal district court dismissed free exercise and equal protection challenges to a provision in the Michigan Constitution that prohibits the use of state funds, tax benefits or vouchers to aid "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school" or student attendance at such schools. Plaintiffs contend that the provision reflects an anti-religious and anti-Catholic sentiment. Plaintiffs base their challenge on the unavailability of Michigan's Section 529 savings plan for them to use to send their children to private religious schools. The state, however, argues that its Plan is not available for any private high school tuition. Plaintiffs argue that the state is misinterpreting its own legislation.  The court said in part:

The court is satisfied that principles of comity preclude merits consideration of plaintiffs’ First Amendment Challenges because they would require this court to disregard the State’s own interpretation and consistent application of its own tax law, neither of which raises First Amendment concerns. Plaintiffs can take the issue up with Michigan tax authorities in the ordinary administration of the Michigan income tax collection process. But unless and until Michigan changes the interpretation and application of its own tax law, and replaces it with the version Plaintiffs say it should have, there is no First Amendment issue.

The court also rejected plaintiffs' equal protection challenge, saying that it is unwilling to expand the "political process" doctrine. Plaintiffs had argued that by placing the limits on use of state funds in the state Constitution, the state had burdened their ability to seek changes in the law. Bridge Michigan reports on the decision.

Pastor's Defamation Suit Dismissed On Ecclesiastical Abstention Grounds

In Weems v. Celebration Church of Jacksonville, Inc., (FL Cir. Ct., Sept. 28, 2022), a Florida state trial court dismissed on ecclesiastical abstention grounds a defamation lawsuit by the former pastor of Celebration Church. At issue is a report growing out of an internal investigation of the pastor commissioned by church trustees.

Plaintiffs’ current pleading invites this Court’s entanglement into Celebration Church’s internal matters....

In order to determine whether Celebration Church defamed Pastor Weems as currently alleged, this Court would need look to the time Pastor Weems was employed by the Church to see whether he did or did not partake in the actions as alleged by the Church and whether those actions were forbidden by the Church's bylaws and other internal policies.

Florida Times-Union reports on the decision.

COVID Vaccine Mandate Without Religious Exemption Is Upheld

In Does v. Hochul, (ED NY, Sept. 30, 2022), a New York federal district court dismissed challenges to New York's COVID vaccine mandate for healthcare workers brought by five employees with religious objections to the vaccine. In evaluating plaintiffs' free exercise claims, the court concluded that the regulation, which contains no religious exemption, is subject only to rational basis review, saying in part:

The plaintiffs argue that the mandate is not neutral because it includes a medical exemption, and thus “treats religious exemptions less favorably than some nonreligious exemptions;” in the plaintiffs’ words, this “double standard is not a neutral standard.”... 

Section 2.61 is neutral on its face. It does not refer to religion at all, and applies to “all persons employed or affiliated with a covered entity” who could “potentially expose other covered personnel, patients or residents to” COVID-19; the only exception is for employees with medical conditions that qualify for a medical exemption...

The rule at issue in this case involves no “singling out” of religious employees. Indeed, Section 2.61 applies equally to all employees who can be vaccinated safely, regardless of their religious beliefs or practices, whether they have political objections to the vaccine, or question their efficacy or safety, or any of the many other reasons that people choose not to get vaccinated....

The court also rejected plaintiffs' Title VII challenge, saying in part:

The sole “accommodation” the plaintiffs seek—a religious exemption from the vaccine requirement— would impose an undue hardship on the Private Defendants because it would require them to violate state law.

Village Residents Lack Standing In Establishment Clause Challenge To Zoning Law

In Citizens United to Protect Our Neighborhoods v. Village of Chestnut Ridge, New York, (SD NY, Sept. 30, 2022), a New York federal district court dismissed for lack of standing a suit by a civic organization and Village residents alleging that the Village's new zoning code violated the Establishment Clause by favoring one religious group, Orthodox Jews.  The Code created new categories of religious uses and houses of worship, including "residential gathering places" so that single-family homes could be opened for religious activities, subject to additional parking requirements. This facilitated small-scale worship services often used by Orthodox Jews who for religious reasons cannot drive on the Sabbath and holidays. The court said in part:

Plaintiffs claim the new zoning amendments “target religious uses with special favorable treatment over secular uses.” (Id.) However, Plaintiffs have not identified any injury, nonetheless a particularized and concrete one. The law is clear that generalized grievance is insufficient to establish standing....

Individual Plaintiffs claim they have direct exposure standing because the New Zoning Law was rushed into law and gives preferential treatment to OJC and religious uses over secular uses, such that “the construction of an untold number of houses of worship” will serve as “constant reminders of the law and its endorsement of religion.” ... This is an insufficient basis ... for finding direct exposure standing....

11th Circuit: City Council Invocation Is Government Speech

In Gundy v. City of Jacksonville Florida, (11th Cir., Sept. 30, 2022), the U.S. 11th Circuit Court of appeals held that an invocation opening a city council meeting delivered by Reginald Gundy, a pastor invited by a member of Council, is government speech.  At issue is a suit by the pastor whose microphone was cut off in the middle of his invocation by the city council president who concluded that the invocation had crossed over into a political attack. The court concluded that the pastor's suit should be dismissed, saying in part:

Mr. Gundy's appeal centers on the fact that he brought counts against Mr. Bowman and the City based on alleged violations of his free speech and free exercise rights under the United States Constitution and the Florida Constitution.

As a threshold and dispositive matter, ... we hold that the district court erred in deeming the invocation private speech in a nonpublic forum instead of government speech. And since Mr. Gundy did not allege a violation of his rights under the Establishment Clause, which is the proper constitutional vehicle to attack the government speech at issue here, his appeal must fail.

Certiorari Denied In Scientology Arbitration Case and Falun Gong Leafleting Case

Today's 48-page Order List from the U.S. Supreme Court on its opening day of the term includes the denial of review in two cases of interest:

Church of Scientology v. Bixler (Docket No. 22-60, cert. denied 10/3/2022): In the case, a California state appellate court held that former Church of Scientology members were not bound by their agreement to submit all disputes with the Church to the Church's Religious Arbitration system when the dispute involves conduct that occurred after plaintiffs left the Church. (See prior posting.)

Zhang Jingrong v. Chinese Anti-Cult World Alliance, Inc. (Docket No. 21-1429, cert. denied 10/3/2022) and Chinese Anti-Cult World Alliance, Inc. v. Zhang Jinrong (Docket No. 21-1556, cert. denied 10/3/2022)- In the case the 2nd Circuit Court of Appeals held that five tables on the sidewalk in Flushing, Queens, New York where Falun Gong adherents passed out flyers and displayed posters were not a "place of religious worship" under the Freedom of Access To Clinics Entrances Act that prohibits intentionally injuring, intimidating, or interfering with anyone who is exercising 1st Amendment religious freedom rights “at a place of religious worship.” In addition, the cross-petition for review raised the issue of the validity of the statute under the commerce clause. (See prior posting.)

Special Permit Requirement Only For Houses Of Worship Violates 1st Amendment

In Omar Islamic Center Inc. v. City of Meriden, (D CT, Sept. 30, 2022), a Connecticut federal district court held that a zoning regulation that required places of worship to obtain a special permit to operate in areas zoned M-4 (Planned Industrial District) violates plaintiffs' 1st Amendment free exercise rights. Plaintiff sought to use a vacant commercial building as a mosque. The court said in part:

Regulations allowed hotels, motels, and convention centers, as well as numerous shops and stores including bakeries, restaurants, and theaters, to operate as of right in the M-4 district, without needing to apply for a special permit.... Places of worship, however, were required to obtain a special permit before opening their doors. It is clear to the Court that, under the test set forth by the Supreme Court in Tandon, at least some comparable secular activities were therefore treated more favorably than religious activities under the Regulations. Thus, the law is not neutral and generally applicable under free exercise principles, and it must be examined with strict scrutiny.

Defendants have not defended the law under either a rational basis or strict scrutiny standard. In fact, they have proffered no rationale underlying the law whatsoever.

The court also found that the regulation violated plaintiff's equal protection rights. The court refused to pass on plaintiff's RLUIPA claims because it was unclear whether or not plaintiff had an actual property interest in the building.

Qualified Immunity Protects Defendants Who Denied Religious Exemptions From COVID Vaccine Mandate

In Jane Does 1-11 v. Board of Regents of the University of Colorado, (D CO, Sept. 29, 2022), a Colorado federal district court dismissed a number of claims by current and former students and employees of the University of Colorado who were denied religious exemptions from the University's COVID vaccine mandate. Some of the claims were dismissed on mootness and sovereign immunity grounds. Other claims were dismissed on qualified immunity grounds, with the court saying in part:

Given the unprecedented nature and global scope of the Covid-19 pandemic as well as its devastating impacts, the Court finds the allegations in the Complaint do not establish that these Defendants acted unreasonably in light of existing precedent and in the specific context of this case. Therefore, at a minimum, they did not violate Plaintiffs’ clearly established rights.

Supreme Court Opens Its October 2022 Term Today

The Supreme Court opens its new term this morning.  Washington Times reports that the traditional Red Mass that precedes the Court's new term was held yesterday at Washington's Cathedral of St. Matthew the Apostle.  Chief Justice Roberts, Justice Barret and retired Justice Breyer attended. Among the cases already on the Court's docket for this term is 303 Creative LLC v. Elenis (SCOTUS blog case page). The date for its oral argument has not yet been set. In the case, the U.S. 10th Circuit Court of Appeals upheld the application of Colorado's Anti-Discrimination Act to a wedding website design company whose owner for religious reasons refuses to create websites that celebrate same-sex marriages. (See prior posting.) The Court granted review only on the free speech issue in the case. The Court will continue to broadcast live audio feed of oral arguments at this link. We can also expect the traditional First Monday long Order List to be released this morning.

Recent Articles of Interest

From SSRN:

• David Schorr, History, Theory, and Jewish Tort Law: Sinai and Shmueli's Maimonides and Contemporary Tort Theory, (Jewish Law Annual, Forthcoming).
• Nicholas McBride, The Nature of Evil, (September 10, 2022).
• Joshua Neoh, The Allah Case: What is the Name of God?, (Law and Religion in the Commonwealth (Hart, 2022)).
• Robert W. McGee, Serkan Benk & Bahadir Yuzbasi, Religious Attitudes Toward Bribery: A Comparative Study (Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, Chapter 7, Chapter 8, by McGee & Benk,  Chapter 38, Chapter 39, (in Robert W. McGee & Serkan Benk (Eds.), The Ethics of Bribery: Theoretical and Empirical Studies. Switzerland: Springer, Forthcoming).
• Wendy Bach & Nicolas P. Terry, HIPAA v. Dobbs, (September 15, 2022).
• Joseph Cyriac & Ashim Alex, An Outlook into Cultural Hypocrisy and Caste Transformation in India, (August 31, 2022).
• Mayowa Aroyewun, Challenges and Prospects of Cryptocurrency in Islamic Finance in Nigeria, (October 8, 2021).
• Nicholas McBride, The Nature of Evil, (September 10, 2022).
• Miranda Webster & Rosemary Teele Langford, An Analysis of the ACNC's Approach to Compliance and Enforcement, (September 13, 2022).

From SmartCILP:

• Russell K. Robinson, What Christianity Loses When Conservative Christians Win at the Supreme Court, [Abstract], 2021 Supreme Court Review 185-224 (2021).
• Lee Epstein & Eric A. Posner, The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait, 2021 Sup. Ct. Rev. 315-348 (2021).

6th Circuit Affirms That County Clerk Kim Davis Had No Qualified Immunity Defense

In Ermold v. Davis, (6th Cir., Sept. 29, 2022), the U.S. 6th Circuit Court of Appeals affirmed a Kentucky federal district court decision that Rowan County Clerk Kim Davis does not have qualified immunity in a suit against her for stopping the issuance of all marriage licenses to avoid issuing licenses to same-sex couples. The court said in part:

[P]laintiffs have not only “alleged” but also now “shown” that Davis violated their constitutional right to marry.... And, as we held three years ago, that right was “clearly established in Obergefell.”

The court held that insofar as Davis has raised a free exercise defense under the First Amendment, that issue should be resolved when the case goes to trial and not at the current motion-to-dismiss stage. [Thanks to Thomas Rutledge for the lead.]

Courtroom Invocations Did Not Violate Establishment Clause [UPDATED]

In Freedom From Religion Foundation v. Mack, (5th Cir., Sept. 29, 2022), the U.S. 5th Circuit Court of Appeals held that a program devised by a Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain does not violate the Establishment Clause. The court said in part:

The plaintiffs cry coercion because Texas Justice of the Peace Wayne Mack opens his court with a ceremony that includes a prayer. But Mack also takes great pains to convince attendees that they need not watch the ceremony—and that doing so will not affect their cases. Some attendees say they feel subjective pressure anyway. Yet the plaintiffs have no evidence suggesting that “coercion is a real and substantial likelihood.” Town of Greece v. Galloway, 572 U.S. 565, 590 (2014).

Want of evidence showing coercion dooms their case. In holding otherwise, the district court disregarded the Supreme Court’s most recent guidance.

First Liberty Institute issued a press release announcing the decision.  The 5th Circuit had previously granted a stay which allowed the invocations to go on while the case was on appeal.

UPDATE: This was a 2-1 decision. Judge Jolly filed an opinion dissenting in part.  He argued that the case needed to be sent back to the district court for additional fact finding.  He criticized the majority's opinion, saying in part:

Plaintiffs have produced considerable evidence showing that Judge Mack conducts his opening prayer and other religious ceremonies “in such a way as to oblige the participation of objectors.” ...  For the majority to find that there is no evidence of coercion, suggests, in my opinion, willful blindness and indisputable error....

[D]espite digging into the history books, the majority’s opinion comes up dry on historical precedent.... [And] the majority inaccurately presents recent Supreme Court precedent.

DC Circuit Hears Oral Arguments From Abortion Protesters

On Wednesday, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments (audio of full oral arguments) in Frederick Douglass Foundation, Inc. v. DC.  In the case, a D.C. federal district court dismissed claims that enforcing ordinances prohibiting the defacing property against anti-abortion protesters but not against racial-justice protesters violated free exercise and free speech protections.  The abortion protesters sought to paint or chalk D.C. streets with the slogan "Black Pre-Born Lives Matter." (See prior posting.) An ADF press release has more on the case.

Jewish Plaintiffs Challenge New York's Ban On Firearms In Places of Worship Or Religious Observation

Suit was filed yesterday in a New York federal district court challenging the constitutionality of recently enacted New York Penal Law §265.01-e which bans possession of a firearm, rifle or shotgun in "any place of worship or religious observation." The suit was brought by a modern Orthodox Jewish synagogue, its president and another Jewish individual. The complaint (full text) in Goldstein v. Hochul, (SD NY, filed 9/29/2022) details a number of recent incidents of violence against Jews and alleges in part:

91. Penal Law § 265.01-2(2)(c) discriminates against religious beliefs and regulates and prohibits conduct because it is undertaken for religious reasons.

92. The Statute makes it more dangerous to attend a “sensitive location” than it would be had that law not been enacted, because it strips away the ability for people in that sensitive location to defend themselves. The Statute singles out religious locations for this elevated, state-sanctioned, danger. This acts as a deterrent for law-abiding people to enter such “sensitive locations,” including places of worship....

94. By singling out places of worship and religious observation for reduced Second Amendment rights, the Statute constitutes a religious gerrymander....

The suit also alleges that the statute is unconstitutionally vague, saying in part:

111. As observant Jews, nearly every location is a place of religious observation for plaintiffs Goldstein and Ornstein....

It also contends that the law violates the Second Amendment, the Equal Protection Clause and various provisions of the New York State Constitution. Hamodia reports on the lawsuit.

City Employees Did Not Show Sincere Religious Objection To COVID Vaccine

In Keene v. City and County of San Francisco, (ND CA, Sept. 23, 2022), a California federal district court dismissed a suit by two city employees who objected on religious grounds to the city's COVID vaccine mandate. The court said in part:

Neither Plaintiff has demonstrated that their religious beliefs are sincere or that those beliefs conflict with receiving the COVID-19 vaccine. There are no grounds upon which to assert the mistaken conclusion that the FDA-approved vaccines contain fetal cells or are otherwise derived from murdered babies.... Feeling passionately about something or having a specific personal preference does not merit the status of a sincere religious belief....

The court denied a preliminary injunction under Title VII and California's Fair Employment and Housing Law, also concluding: 

It is well-settled law that loss of employment does not constitute irreparable harm for purposes of an injunction....

Suit By Mosque Over Zoning Denials Can Move Ahead

In Adam Community Center v. City of Troy, (ED MI, Sept. 28., 2022), a Michigan federal district court refused to dismiss RLUIPA and constitutional claims against the city of Troy, Michigan. Plaintiff alleged wrongful denial of necessary zoning variances so plaintiff could use its property for Muslim religious services and classes. The court said in part:

Plaintiff has identified pieces of circumstantial evidence that may lead a fact-finder to conclude Troy acted with discriminatory animus towards Muslims. Thus, a question of fact on this claim exists and summary judgment is denied....

[T]here exists a question of fact for trial as to whether ZO § 6.21 was actually applied in a neutral manner or whether it was applied for the purpose of excluding Muslim assemblies from Troy...

The record contains ample evidence to support Adam’s contention that Troy’s stated reasons for denying Adam’s variance application were pretextual and intended to prevent Adam from opening a mosque in the City. Thus, a factfinder could conclude that Adam’s constitutional rights were violated.

The court previously concluded that the city had violated the equal terms and substantial burden provisions of RLUIPA, and now ordered a hearing on damages for those violations. Detroit News reports on the decision.

Suit Challenges California's Linking Of Hinduism With Caste System

A Hindu advocacy organization has filed suit in a California federal district court challenging allegations in the California Civil Rights Department's enforcement actions against caste discrimination that link the caste system to Hinduism. The complaint (full text) in Hindu American Foundation, Inc. v. Kish, (ED CA, filed 9/20/2022), alleges in part:

[A] caste system or discrimination on its basis are in no way a legitimate part of Hindu beliefs, teachings, or practices. 

HAF vehemently opposes all types of discrimination; and takes great exception to the State of California defaming and demeaning all of Hinduism by attempting to conflate a discriminatory caste system with the Hindu religion. 

Worse, California defames Hinduism by doing what the U.S. Constitution says it cannot, assert a government right to resolve questions of religious doctrine....

As a result, the CRD’s violation of the First Amendment rights of all Hindu Americans ... would likely lead employers to actively  discriminate against Hindu and South Asian Americans in order to avoid the undefined maze of  legal uncertainty that would be California’s caste-discrimination bar....

Stopping caste-based discrimination is a worthy goal that directly furthers Hinduism’s belief in the equal and divine essence of all people. But wrongly tying Hindu beliefs and practices to the abhorrent practice of caste-discrimination undermines that goal, violates the First Amendment rights of all Hindu-Americans, and can only lead to a denial of due process and  equal protection to Americans based on their religious affiliation and national origin.

(See prior related posting.) Hindu American Foundation issued a press release announcing the filing of the lawsuit.

Texas Supreme Court: Enforceability Of Islamic Pre-Nup Must Be Decided Before Ordering Arbitration

In In re Ayad, (TX Sup. Ct., Sept. 23, 2022), the Texas Supreme Court held that the trial court should determine the validity and enforceability of an Islamic Pre-Nuptial Agreement before, rather than after, ordering the parties to arbitration by a Fiqh Panel pursuant to the agreement. In a divorce proceeding, the wife challenged the enforceability of the agreement on various grounds, including that the term "Islamic Law" is too indefinite and that the Agreement is void as violating public policy. Volokh Conspiracy discusses the decision. [Thanks to Steven H. Sholk for the lead.]

3rd Circuit Remands RLUIPA Challenge To Sex-Offender Treatment Program

In Robins v. Wetzel, (3d Cir., Sept. 28, 2022), the U.S. 3rd Circuit Court of Appeals vacated the dismissal of a portion of a Pennsylvania federal district court opinion in a suit in which an inmate challenged the sex offender treatment program that was required for his release on parole.  The program required him to admit his guilt. According to the court:

Although he was willing to admit that he engaged in sexual relations with his wife, who was a minor child at the time, he was unwilling to admit that that conduct was illegal....

He contended that:

[M]arriage was a sacred tenet of his religion, and he could not admit the illegality of his sexual conduct, which he construed as denouncing his religious marital vows, without violating his religious beliefs.

The court held:

[T]his Court has not had occasion to consider an acceptance-of-responsibility component of a sex-offender treatment program in the context of RLUIPA or RFRA. Given the lack of controlling precedent, we ... remand for the District Court to address the RLUIPA and RFRA claims in the first instance.

California Governor Signs New Laws Protecting Abortion Rights

Yesterday California Governor Gavin Newsom signed a package of 13 additional bills to strengthen abortion rights in the state.  According to a press release from his office, these laws will:

further protect people from legal retaliation and prohibit law enforcement and corporations from cooperating with out-of-state entities regarding lawful abortions in California, while also expanding access to contraception and abortion providers in California.

The press release details each of the new laws.

Alabama High School Athletic Association Changes Rules To Accommodate Sabbath Observance

1819 News reports that yesterday the Alabama High School Athletic Association voted to amend its rules to accommodate religious requests for scheduling changes. The rule change comes in response to a lawsuit filed in May by Oakwood Adventist Academy after it was forced to forfeit a Saturday afternoon 1A high school playoff game that conflicted with its Sabbath observance. Becket issued a press release announcing the rule change.

Messianic Jewish Missionaries May Proceed With Their Defamation Suit

In One for Israel v. Reuven,(SD FL, Sept. 26, 2022), a Florida federal district court in a defamation case held that Messianic Jewish missionaries are not necessarily "limited public figures" who must prove "actual malice" to succeed in a defamation suit. Refusing to dismiss the suit, the court held that the theological conflict between Judaism and Christian missionaries is not a public controversy. At issue in the case was a YouTube video in which defendant, an Orthodox Jewish rabbi, claimed that the missionaries beat up another rabbi at a meeting with an individual who was considering converting to Messianic Judaism. The court also rejected the claim that the ecclesiastical abstention doctrine requires dismissal of the suit. The court said in part:

The statements said in the video have nothing to do with religion; they were about a violent attack that did not happen. These issues have nothing to do with religious doctrine or conflict.

Volokh Conspiracy has more on the decision.

Catholic Bishops Release Report On State of the Church

Last week, the U.S. Conference of Catholic Bishops released a report on the state of the Church in the United States. Titled National Synthesis of the People of God in the United States of America for the Diocesan Phase of the 2021-2023 Synod (full text), a section captioned "Enduring Wounds" says in part:

Chief among the enduring wounds ... is the still-unfolding effects of the sexual abuse crisis.... The sin and crime of sexual abuse has eroded not only trust in the hierarchy and the moral integrity of the Church, but also created a culture of fear that keeps people from entering into relationship with one another....

Another enduring wound widely reflected in synodal consultations was the experience that the Church is deeply divided. Participants felt this division as a profound sense of pain and anxiety. “As one participant shared, the divisive political ideologies present in our society have seeped into all aspects of our lives.” Division regarding the celebration of the liturgy was reflected in synodal consultations.... The most common issue regarding the liturgy is the celebration of the pre-Conciliar Mass.”...

Many regional syntheses cited the perceived lack of unity among the bishops in the United States, and even of some individual bishops with the Holy Father, as a source of grave scandal.

Cuba Referendum Approves Family Code Allowing Same-Sex Marriage and More

AP reports that on Sunday, voters in Cuba approved a new Family Law Code that allows same sex couples to marry and to adopt. The over 400-Article Code also allows surrogate pregnancies and expands grandparent rights. Cuba's evangelical movement opposed the new Code. The Code was approved by 66.9% in favor to 33.1% opposed. [Thanks to Scott Mange for the lead.]

President Biden Sends Rosh Hashana Greetings

The Jewish holiday of Rosh Hashana begins at sundown this evening. President Biden today issued a statement (full text) sending warm wishes from Jill and himself to everyone in the United States, Israel and around the world celebrating the holiday. He said in part:

Just as individuals can seek renewal, so too can nations. This past year has seen encouraging progress for our nation.... With COVID-19 no longer the same disruptive threat it was, families can once more gather around the Rosh Hashanah dinner table and sit together in their synagogues. 

At the same time, we have much more work to do to realize the values that bind us as Americans and to restore the soul of our nation.

Recent Articles of Interest

From SSRN:

• Harmony Decosimo, Taxonomizing Professional Identity Formation: The Soul of Legal Education, (67 Saint Louis University Law Journal, Forthcoming 2023).
• Nicholas Reaves, Religious Autonomy in Carson v. Makin, (Harvard Journal of Law and Public Policy Per Curiam 2022).
• Kenneth A. Bamberger & Ariel Mayse, Revisiting a Jurisprudence of Obligation, (Touro Law Review, Vol. 37, No. 4, 2022).
• Homayoon Rafatijo, Islamic Republic: An Oxymoron, (William Mitchell Law Review, Vol. 49, 2022).
• Or Bassok, Legitimacy without Legality, (September 12, 2022).
• Amanda Shanor, “LGBTQ+ Need Not Apply”, (The Regulatory Review (2021)).

From SSRN (Abortion Rights):

• Elizabeth E. Joh, Dobbs Online: Digital Rights as Abortion Rights, (September 5, 2022).
• David S. Cohen, Greer Donley & Rachel Rebouche,  Abortion Pills, (September 20, 2022).
• Christen Hammock Jones, A Second Chance at Choice?: Challenging Abortion 'Reversal' as Law and Medical Practice, (29 American University Journal of Gender, Social Policy & the Law (2022)).
• James W. Fox, An Historical and Originalist Defense of Abortion in Florida, (September 20, 2022).

Satanic Temple Files Novel Challenges To Indiana Abortion Law

Earlier this week, The Satanic Temple filed suit in an Indiana federal district court challenging on somewhat novel grounds Indiana's recently enacted restrictive abortion ban. The complaint (full text) in The Satanic Temple v. Holcomb, (SD IN, filed 9/21/2022) not only alleges that the ban violates Indiana's Religious Freedom Restoration Act because it outlaws the Satanic Abortion Ritual, but also alleges other constitutional defects. It contends in part:

59. The property right of an Involuntarily Pregnant Woman to exclude or remove a Protected Unborn Child from her uterus cannot be taken by the State of Indiana without just compensation pursuant to the Takings Clause of the Fifth Amendment to the U.S. Constitution.

60. The property right to exclude or remove a Protected Unborn Child from a woman’s uterus has substantial commercial value as established by over twenty-five years of experience with gestational surrogacy in Indiana.

It alleges a 13th Amendment violation, contending:

68. The Indiana Abortion Ban causes each Involuntarily Pregnant Woman to provide the services necessary to sustain the life of a Protected Unborn Child that occupies and uses her uterus.

The suit also alleges unconstitutional discrimination between women who become pregnant by accident and those who become pregnant by rape or incest, as well as unconstitutional discrimination between women who become pregnant by accident and those who become pregnant by in vitro fertilization. Courthouse News Service reports briefly on the lawsuit.

Arizona Judge Reinstates Pre-Roe Abortion Ban

Arizona §13-3603, a statute that originally was passed in 1864 and subsequently reenacted, criminalizes abortion unless it is necessary to save the life of the mother. Persons who procure of perform abortions are subject to imprisonment for not less than two or more than five years. In 1973, in a suit brought by Planned Parenthood, Arizona courts held that the statute was unconstitutional because of the U.S. Supreme Court's ruling in Roe v. Wade.  Now that Roe has been overruled, Arizona's Attorney General and an intervenor in the case filed a Motion for Relief From the 1973 Judgment.  In Planned Parenthood Center of Tucson, Inc. v. Brnovich, (AZ Super., Sept. 22, 2022), an Arizona trial court judge granted the motion, saying in part:

The Court finds that because the legal basis for the judgment entered in 1973 has now been overruled, it must vacate the judgment in its entirety.

In March of this year, Arizona enacted a law banning abortions after 15 weeks, except in a medical emergency. BBC News reporting on this week's decision allowing §13-3603 to go into effect, says:

It is now unclear whether the 15-week ban or the near-total ban will take precedence.

Governor of Arizona Doug Ducey said it would be the 15-week ban, but his fellow Republican Attorney General Mark Brnovich said it should be the older ban.

RLUIPA Suit Charges City Attempt To Prevent Growth Of Orthodox Jewish Population

Suit was filed earlier this month in an Ohio federal district court by a University Heights, Ohio homeowner who was told by the city that he needed to obtain a special use permit in order to hold Jewish prayer services with ten friends in his home. The complaint (full text) in Grand v. City of University Heights, Ohio, (ND OH, filed 9/8/2021), says in part:

3. Since Grand moved into his home in 2019, he experienced discrimination based on his religion. After Grand’s invitation for friends to join him in Orthodox Jewish prayer in January of 2021, the City, led by its mayor, waged a zealous campaign of capricious enforcement of its local ordinances specifically targeting Grand and several other Orthodox Jewish prayer groups. This campaign is directly responsive to a hostile segment of the mayor’s constituency that seeks to prevent the growth of the City’s Orthodox Jewish population by limiting the locations where Orthodox Jews can pray.

4. Additionally, the City has targeted Grand individually for intentional, arbitrary, and discriminatory application of its ordinances that have caused him substantial injuries.

5. This action challenges certain provisions of the [city ordnances under] ... the United States Constitution, the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”), the Ohio Constitution, and Ohio common law.

News5 Cleveland reports on the lawsuit. 

Indiana Abortion Ban Preliminarily Enjoined

In Planned Parenthood Northwest, Hawaii, Alaska, Indiana, Kentucky, Inc. v. Members of the Medical Licensing Board of Indiana, (IN Cir. Ct., Sept. 22, 2022), an Indiana state trial court judge yesterday issued a preliminary injunction barring enforcement of Indiana's recently enacted restrictive abortion ban. The court said in part:

Regardless of whether the right is framed as a privacy right, a right to bodily autonomy, a right of self-determination, a bundle of liberty rights, or by some other appellation, there is a reasonable likelihood that decisions about family planning, including decisions about whether to carry a pregnancy to term-- are included in [Indiana Constitution] Article I, §1's protections....

Because of these considerations, and the history of Indiana's constitution being interpreted to provide greater protection to individual citizens that its federal counterpart, there is a reasonable likelihood that this significant restriction of personal autonomy offends the liberty guarantees of the Indiana Constitution and the Plaintiffs will prevail on the merits as to their claim that S.B. 1 violates Article I, Section 1 of the Indiana Constitution.

The case was decided by a Special Judge after two other judges recused themselves (Background). ACLU Indiana issued a press release announcing the decision. ABC News reports that the state plans to file an appeal of the decision, and that abortion clinics in the state are preparing to reopen.

Police and Fire Fighters Sue Over COVID Vaccine Mandate

Suit was filed last week in a New Jersey federal district court by a group of seven police officers and firefighters who were denied a religious accommodation to excuse them from a COVID vaccine mandate. The complaint (full text) in Aliano v. Township of Maplewood, (D NY, filed 9/16/2022), contends that the denial violates Title VII and the New Jersey Law Against Discrimination. New Jersey 101.5 reports on the lawsuit.

Musicians Sue Over Denial Of Religious Exemption From Vaccine Mandate

A Title VII religious discrimination lawsuit was filed yesterday in a Florida federal district court by three musicians who have religious objections to COVID vaccines. They were placed on partial-paid leave by their private employer, an arts organization that operates the Naples Philharmonic, when they refused to comply with the employer's vaccine mandate.  The complaint (full text) in Leigh v. Artis-Naples, Inc., (MD FL, filed 9/21/2022), alleges in part:

Artis-Naples implemented an illegal policy that no exemption or accommodation would or could be granted to any employee who had to be present onsite to perform their job....

Artis-Naples irrationally and pretextually argues that accommodating unvaccinated employees who follow alternative preventative measures would place an “undue hardship” on its operations—specifically, that unvaccinated employees present “a direct threat” of infection to patrons and coworkers....

Florida law requires Artis-Naples to exempt Plaintiffs from the Mandate....

As a matter of law, it can never be an “undue hardship” for an employer to comply with the state law and public policy.

School Gets Declaratory Relief Stating That It Should Have Receive State Bus Transportation

In St. Augustine School v. Underly, (ED WI, Sept. 19, 2022), a Wisconsin federal district court, deciding a case on remand from the 7th Circuit, issued a declaratory judgment that state school officials violated Wisconsin law by failing to furnish bus transportation to students attending St. Augustine. At issue was whether St. Augustine School was affiliated with the same denomination as another nearby Catholic school so that only one of the schools would be entitled to bus transportation. The district court said that under the terms of the remand, it could not grant relief on plaintiff's constitutional claims. However, because another appeal was likely, the court did express its opinion on those claims, saying in part:

because the rule as applied by the defendants did not cut St. Augustine off from benefits “for no other reason” than that it was a religious school,... the defendants’ denial of benefits did not violate the Free Exercise Clause.

Employees Fired For Religious Refusal Of COVID Vaccine Bring Title VII Suit

Four former employees of a continuing care retirement community filed suit in an Alabama federal district court last week claiming that they were wrongly fired for refusing the COVID vaccine on religious grounds.  The 105-page complaint (full text) in Hamil v. Acts Retirement-Life Communities, Inc., (SD AL, filed 9/15/2002), contends that plaintiffs were subjected to a hostile work environment, harassment, and wrongful termination based on their sincerely held religious beliefs. They were denied religious exemptions, or had previously granted religious exemptions rescinded. According to the complaint:

Such conduct was undertaken to preserve Defendants' exorbitant sums of monetary assistance in the form of government grants, coronavirus relief funds, and Medicare and Medicaid funds....

In the case at hand, the crux of the issue is the unlawful employment practices undertaken by Defendant and not the constitutional validity of any vaccine mandate....

The complaint contains lengthy descriptions of plaintiffs' religious beliefs and alleges various violations of Title VII as well as numerous state law claims. 1819News reports on the lawsuit.

Appropriation To Christian School Challenged Under South Carolina Constitution

Suit was filed yesterday in a South Carolina state trial court contending that a state budget appropriation of $1.5 million to  Christian Learning Centers of Greenville County violates the provision in South Carolina's constitution that bars the use of public funds "for the direct benefit of any religious or other private educational institution." The complaint (full text) in Parker v. McMaster, (SC Com. Pl., filed 9/20/2022) asserts that the appropriation also contravenes the state constitution's Establishment Clause. The appropriation is aimed at partially funding a $14 million residential school for disadvantaged and at-risk youth. Freedom From Religion Foundation issued a press release announcing the filing of the lawsuit.

Christian Rescue Mission Charged With Religious Discrimination Files Suit

Suit was filed yesterday in a Wyoming federal district court by a Christian rescue mission challenging interpretations by the EEOC and the Wyoming Department of Workforce Services of the employment discrimination provisions of state and federal law.  The complaint (full text) in Rescue Mission v. EEOC, (D WY, filed 9/20/2022), contends that the Rescue Mission's free exercise and free expression rights were violated when the EEOC and WDWS found probable cause that the Mission engaged in religious discrimination in refusing to hire non-Christians as associates in its Thrift Stores.  The agencies took the position that a religious exemption was available only as to "ministerial" positions. The Rescue Mission's complaint alleges in part:

The [Thrift store] position has spiritual qualifications that require candidates to “[m]aintain a personal relationship with Jesus Christ,” “live a Godly life in public and private, thereby providing a Christian role model for those we seek to reach,” and “[a]gree with the WRM Statement of Faith.”

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

11th Circuit: Muslim Prison Chaplain Loses Suit Over Exclusions From Execution Chamber

In Maisonet v. Commissioner, Alabama Department of Corrections, (11th Cir., Sept. 16, 2022), the U.S. 11th Circuit Court of Appeals affirmed the dismissal of a suit by a Muslim volunteer Chaplain who claimed that his free exercise rights were infringed when he was prevented from being in the execution chamber when two inmates to whom he ministered were executed. The court held that the chaplain lacked standing to obtain declaratory or injunctive relief because he did not identified any death row inmate whose execution he will be unable to attend in the future. Alabama now allows chaplains in the execution chamber. The court concluded that the chaplain did have standing to pursue his claim for damages in the cases of the two inmates whose executions he was unable to attend previously. However qualified immunity shields defendants from liability.

7th Circuit: Muslim Inmate Entitled To Religious Exemption From Strip Searches By Transgender Guards

In West v. Radtke, (7th Cir., Sept. 16, 2022), the U.S. 7th Circuit Court of Appeals held that a Muslim inmate's rights under RLUIPA were violated when prison authorities refused to exempt him from strip searches conducted by transgender men. Wisconsin first argued that the inmate, Rufus West, should not care that he is searched by a transgender inmate because Islam equally condemns exposing the naked body to any guard, male or female. The court responded that:

The substantial-burden inquiry does not ask whether West’s understanding of his faith obligations is correct.

Prison authorities went on to argue that the burden on West's religious exercise was justified by the state's compelling interest in complying with the anti-discrimination requirements of Title VII which bars discrimination against its transgender guards. The Court said, however:

The prison offers no argument under established Title VII doctrine that exempting West from cross-sex strip searches would inflict an adverse employment action on its transgender employees....

The prison’s Title VII argument would fail even if it could show that exempting West from cross-sex strip searches would lead to an adverse employment action. Title VII permits sex-based distinctions in employment where sex “is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise.” 42 U.S.C. § 2000e-2(e)....

Sex is a bona fide occupational qualification for performing strip searches of prisoners with sincere religious objections to cross-sex strip searches.

The Court also rejected the prison's equal protection defense. It remanded for further development the inmate's 4th Amendment claims.