3rd Circuit: Challenge to COVID Limits on Worship Services Is Moot

In Clark v. Governor of the State of New Jersey, (3d Cir., Nov. 28, 2022), the U.S. 3rd Circuit Court of appeals in a 2-1 decision held that a challenge by two Christian congregations and their pastors to former COVID limits on in-person worship services is moot. The court affirmed the trial court's dismissal of the suit.  In the case, plaintiffs challenged orders by the Governor of New Jersey that limited religious gatherings while permitting certain essential secular activities to continue. The majority said in part:

Appellants offer nothing more than speculation to suggest that we have a live controversy here. They invite us to hypothesize about future scenarios in which (a) not only does the COVID-19 pandemic reach crisis levels comparable to early-2020, but (b) New Jersey’s executive officials will choose to ignore everything—both legal and factual—we have learned since those early months and bluntly reintroduce legally-suspect gathering restrictions on religious worship. This will not do, and we will therefore affirm.

Judge Matey dissented, saying in part:

[N]o lively imagination is needed to conjure up future competitions between public health and religious liberty given the volatility of respiratory viruses, the increased probability of future pandemics, and the routine declaration of “emergencies” by Governor Murphy. I would take the opportunity to provide an answer now, giving the people of New Jersey, and its representatives, the guidance they are entitled to under the Constitution.

Senate Will Begin Voting on Respect for Marriage Act with Religious Liberty Amendments

The U.S. Senate is expected to begin voting today on an amended version of H.R. 8404, the Respect for Marriage Act (full text). The House has previously passed the original version of the bill, and the Senate has passed a cloture motion ending a filibuster of the original bill.  The Act will assure federal recognition of same-sex marriages that were valid where performed and will require states to give full faith and credit to same-sex (as well as interracial) marriages performed in other states. Amendments designed to protect religious liberty were added in the Senate.  If the bill passes, it will then go back to the House to act on the amended version. Here are the major changes added in the Senate version to protect religious liberty:

SEC. 2. FINDINGS.

       Congress finds the following:

       (1) No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.

       (2) Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect....

SEC. 6. NO IMPACT ON RELIGIOUS LIBERTY AND CONSCIENCE.

       (a) In General.-- Nothing in this Act, or any amendment made by this Act, shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law.

       (b) Goods or Services.--Consistent with the First Amendment to the Constitution, nonprofit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action.

SEC. 7. STATUTORY PROHIBITION.

       (a) No Impact on Status and Benefits Not Arising From a Marriage.-- Nothing in this Act, or any amendment made by this Act, shall be construed to deny or alter any benefit, status, or right of an otherwise eligible entity or person which does not arise from a marriage, including tax-exempt status, tax treatment, educational funding, or a grant, contract, agreement, guarantee, loan, scholarship, license, certification, accreditation, claim, or defense.

       (b) No Federal Recognition of Polygamous Marriages.-- Nothing in this Act, or any amendment made by this Act, shall be construed to require or authorize Federal recognition of marriages between more than 2 individuals....

As reported by The Center Square and The Hill, various conservative religious organizations (some expressing extreme concerns about the effect of the bill), as well as some Republican senators, continue to strongly oppose the bill.

UPDATE: On Nov. 29, the Senate by a vote of 61-36 passed the Respect for Marriage Act.  The bill now goes back to the House for a vote on the bill in the amended form passed by the Senate.

Recent Articles of Interest

From SSRN:

• Jessica Lowe, "Our Experiences Make Us Who We Are": Lessons from Thomas Ruffin and Dirk Hartog, (Virginia Public Law and Legal Theory Research Paper No. 2022-76 (Nov. 2022)).
• Greer Donley & Rachel Rebouche, The Promise of Telehealth for Abortion, (in Digital Health Care Outside of Traditional Clinical Settings: Ethical, Legal and Regulatory Challenges and Opportunities (Cambridge University Press, Forthccoming).
• Saleh Alamer, The Role of the Sharīʿah Supervisory Board: A Gatekeeper?, (December 19, 2021).
• Kim Kit Ow & Vincent Ooi, Making Singapore a Regional Centre for Philanthropy, (The Straits Times, 7 October 2022).

From SmartCILP:

• Leslie C. Griffin, What Did Those Sixteen Justices Say?, 58 Willamette Law Review 163-250 (2022).
• Jomana Qaddour, Iraq's Constitutional Moments and the Institutionalization of Ethno-Sectarianism, 36 Emory International Law Review 237-286 (2022).
• John G. Browning, Is the Devil in the Details? Religious Objections to Biometric Technology in the Workplace, [Abstract], 99 University of Detroit Mercy Law Review 299-322 (2022).
• Abigail Matthews & Rebecca J. Kreitzer, How Personal Beliefs and Identity Affect Bodily Autonomy Attitudes, [Abstract], 99 University of Detroit Mercy Law Review 373-424 (2022).

New York Governor Announces Steps to Combat Hate Crimes

Earlier this week, New York Governor Kathy Hochul announced a number of steps to combat hate crimes. On Nov. 22, the Governor signed A1202 (full text) which makes mandatory rather than just permissive the requirement that sentences for hate crimes include an appropriate program, training session, or counseling session directed at hate crime prevention and education. She also signed A5913A (full text) which requires the state Division of Human Rights to develop and implement a campaign to promote acceptance, inclusion and tolerance of the state's diverse population with the purpose of combatting bias, hatred and discrimination based on religion, race, color, creed, sex, ethnicity, national origin, age, disability, sexual orientation, and gender identity or expression. She also announced plans for a Unity Summit and emphasized grant funding available to strengthen safety measures to protect against hate crimes.

Suit Claims School's Restroom Policy Burdens Muslim and Christian Religious Beliefs

Suit was filed this week in an Ohio federal district court challenging a school district's rule change that allows transgender students to use restrooms and locker rooms that conform to their gender identity.  Plaintiffs, who identify as Muslims and Christians, claim, among other contentions, that the new rules violate their free exercise and equal protection rights, their parental rights and Title IX.  The complaint (full text) in Doe No. 1 v. Bethel Local School District Board of Educaton, (SD OH, filed 11/22/2022), alleges in part:

67. The [Muslim] Plaintiffs ... sincerely believe that Allah makes men and women in the womb as distinct and separate genders. Allah desires modesty and separateness between the sexes. Satan attempts to entice humans to change and disobey what Allah has created and desires, and believers are to stay true to Allah’s creation and commands....

68. Muslim parents are responsible for raising their children in the faith including its morals and values....  This is a fundamental part of the parents’ exercise of their own faith. The Board is imposing a substantial burden on the free exercise of that faith by placing the children in intimate facilities with members of the opposite biological sex....

79. [Seven of the] Plaintiffs ... are all active members of the Christian community.

80. For thousands of years, Judeo-Christianity has taught that their identity as people comes from God, who made human beings in his image—male and female. See, e.g., Genesis 1:26-28; Matthew 19:4-6. Therefore, a human being’s dignity comes from the image of God himself. And God’s fashioning of a human being as a man or woman at birth is a fundamental part of that dignity. One cannot impose on that dignity without transgressing the fundamental core of a Christian.

Fox News reports on the lawsuit.

President Biden Issues Thanksgiving Proclamation

President Biden yesterday issued a Proclamation (full text) declaring today as a National Day of Thanksgiving.  The Proclamation reads in part:

We are grateful for our family and friends and for all of our fellow Americans, even those whom we may never meet but rely upon nonetheless.  We are thankful for the scientists, researchers, doctors, and nurses who have kept us safe through a pandemic, and for the frontline workers who have kept essential services going by growing and providing food for our tables.  We are grateful to faith leaders for their counsel, comfort, and support.  We thank our brave service members and veterans who sacrifice so much for our freedom, and the first responders who put so much on the line to keep us all safe. 

As Scripture says:  “let us rejoice always, pray continually, and give thanks in all circumstances.”  This is a special time in the greatest country on Earth, so let us be grateful.  America is a great Nation because we are a good people.  This holiday, we celebrate all that brings us together, grounded in history and our shared hopes for the future.

Georgia Supreme Court Reinstates Heartbeat Abortion Ban

As previously reported, last week a Georgia state trial court held Georgia's heartbeat abortion ban unconstitutional and enjoined enforcement of two key provisions of the law.  In reaching its conclusion, the trial court invoked Georgia's "void ab initio" doctrine. Today in State of Georgia v. SisterSong Women of Color Reproductive Justice Collective, (GA Sup. Ct., Nove 23, 2022), the Georgia Supreme Court in a brief order granted a stay of the trial court's order. This allows the ban to go back into effect. Seven of the nine justices concurred in the Order. One Justice was disqualified and one did not participate. ACLU issued a press release announcing the decision.

Delaware Chancery Court Says Religious Leaders' Challenge to COVID Orders Was Filed in Wrong Court

In In re Covid Related Restrictions on Religious Services, (Del. Ch., Nov. 22, 2022), the Delaware Court of Chancery held that a challenge by religious leaders to now-lifted Covid-related restrictions on religious services should be brought in Superior Court, not in Delaware's Chancery Court which is limited to providing equitable relief. The state's other courts are capable of awarding damages and issuing a declaratory judgment. In reaching that conclusion, however, the court modified the test it has traditionally used to determine whether to grant a permanent injunction. The court said that in order to obtain a permanent injunction, as opposed to a TRO or preliminary injunction, petitioner must only show that remedies at law would be inadequate. Threat of irreparable harm is one way, but not the only way, to show this. The court went on, however, to conclude:

[W]hen a plaintiff seeks to ground equitable jurisdiction on the potential need for a permanent injunction, the pled facts must support a reasonable apprehension that the defendant will act in a manner that will necessitate the injunction’s issuance. Under the reasonable-apprehension test, a plaintiff’s subjective fears are not sufficient. There must be objectively good reasons to think that a permanent injunction will be warranted. The plaintiffs have not pled facts that make it reasonably conceivable that the Governor will re-impose the Challenged Restrictions.

NY Child Victim Act Revives Claim Even Though Prior Order of Dismissal Did Not Specify Statute of Limitations Grounds

In D.P. v. Riverside Church in the City of New York, (NY Cnty. Sup. Ct., Nov. 14, 2022), a New York state trial court refused to dismiss on res judicata grounds a suit against Riverside Church alleging abuse of a teenage player by the founder of a Harlem basketball program sponsored by the church. A federal court lawsuit making similar allegations was dismissed in 2008 after plaintiff filed a stipulation of dismissal.  While the federal court's order of dismissal did not state the grounds for dismissal, plaintiff in this case filed an affidavit saying that the rationale was the statute of limitations.  The New York state court held that since the Child Victim Act revived causes of action that had previously been dismissed on limitations grounds, it would allow plaintiff to move ahead with the suit, saying in part:

As the Federal case was discontinued in 2008 and makes no mention as to why same occurred this court must give every deference to the party seeking an opportunity to proceed with this case under the CVA on the merits.

Football Coach Sues After Being Fired for Religious Refusal of Covid Vaccine

Suit was filed last week by the former head football coach for Washington State University who was fired after refusing on religious grounds to comply with the state's Covid vaccine mandate for state employees. The Athletic Department refused to grant him a religious accommodation, questioning the sincerity of his religious objections as well as the University's ability to accommodate his objections. The complaint (full text) in Rolovich v. Washington State University, (WA Super. Ct., filed 11/14/2022), alleges that the coach's firing amounts to religious discrimination in violation of state and federal law and infringement of plaintiff's free exercise and due process rights. Campus Reform reports on the lawsuit.

Maryland County's Election Process for Student School Board Member Survives Free Exercise Challenge

 In Kim v. Board of Education of Howard County, (D MD, Nov. 18, 2022), a Maryland federal district court rejected both equal protection and free exercise challenges to the manner in which the student member of the 8-member Howard County School Board is selected. In an elaborate process, the final step in the selection of the student member is a vote by public school students in grades 6 to 11. In rejecting the free exercise claim, the court said in part:

Plaintiffs argue that the Student Member selection process violates the First Amendment’s Free Exercise Clause because it bars certain students from voting for the Student Member “solely because they attend a religious school or are homeschooled for religious reasons.”... This claim will be dismissed because Plaintiffs have not plausibly alleged that the Student Member statute burdens religion—and even if it did, the law is neutral and generally applicable.

The court also rejected equal protection claims that the process violated the one-person one-vote mandate and uniformity rules.

Medical Organizations Challenge FDA's Past Approval of Chemical Abortion Drugs

In a new test of abortion rights, four medical organizations and four doctors filed suit last week in a Texas federal district court challenging the FDA's long-standing approval for use in the United States of the chemical abortion drugs mifepristone and misoprostol. The 113-page complaint (full text) in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, (ND TX, filed 11/18/2022), alleges in part:

3. To date, the FDA’s review, approval, and deregulation of chemical abortion drugs has spanned three decades, correlated with four U.S. presidential elections, and encompassed six discrete agency actions...

7. The only way the FDA could have approved chemical abortion drugs was to use its accelerated drug approval authority, necessitating the FDA to call pregnancy an “illness” and argue that these dangerous drugs provide a “meaningful therapeutic benefit” over existing treatments.

8. But pregnancy is not an illness, nor do chemical abortion drugs provide a therapeutic benefit over surgical abortion....

9. What’s more, the FDA needed to disavow science and the law because the FDA never studied the safety of the drugs under the labeled conditions of use....

10, Since then, the FDA has not followed the science, reversed course, or fixed its mistakes,,,

22...  [A]ll of the FDA’s actions on chemical abortion drugs—the 2000 approval, the 2016 major changes, the 2019 generic drug approval, and the two 2021 actions to eliminate the in-person dispensing requirement—failed to acknowledge and address the federal laws that prohibit the distribution of chemical abortion drugs by postal mail, express company, or common carrier.,,,

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

Challenge To HHS Health Care Non-Discrimination Rules Is Moot

 In American College of Pediatricians v. Becerra, (ED TN, Nov. 18, 2022), a Tennessee federal district court dismissed for lack of standing a challenge to a rule promulgated by the Department of Health and Human Services that barred discrimination on the basis of gender identity in the furnishing of health care.  The court said in part:

Given Plaintiffs’ failure to allege any of the McKay factors, the availability of a religious exemption by which they are arguably protected from enforcement, which has not yet been interpreted otherwise, the fact that Plaintiffs filed this lawsuit before seeking an exemption, and the Supreme Court’s mandate that the standing inquiry is “especially rigorous when reaching the merits of the dispute would force [a court] to decide the constitutionality of an action taken by one of the other two branches of the Federal Government,” the Court finds Plaintiffs have not established standing as to their claims. 

The court also concluded that plaintiffs lacked standing to challenge an HHS rule requiring grant recipients to recognize same-sex marriages.

Plaintiffs do not allege that HHS has any history of enforcing the 2016 Grants Rule against them or others, or that Plaintiffs have received any sort of enforcement warning regarding the 2016 Grants Rule.

The court's 41-paage opinion traces the complex history of rulemaking and litigation as to both rules.

President Biden Issues Statement on Transgender Day of Remembrance

The White House today released a statement (full text) from President Biden on Transgender Day of Remembrance. The Statement says in part:

On Transgender Day of Remembrance, we honor the 32 transgender Americans known to have been taken from us this year by horrific acts of brutality. The true toll is likely much higher, with Black and brown transgender women disproportionately targeted.

In the face of this ongoing assault, my Administration remains deeply committed to strengthening the rights of LGBTQI+ Americans, including transgender Americans. Since taking office, we have made it possible for transgender service members to once again serve proudly and openly in our military, improved the travel experience for transgender Americans, and provided resources to support the mental health of transgender kids and their families.... I continue to urge state leaders to combat the disturbing wave of discriminatory state laws targeting young transgender Americans—legislation that hurts young people who aren’t hurting anyone. With Congress poised to pass the bipartisan Respect For Marriage Act, I also reiterate my call for them to likewise pass the Equality Act and provide long overdue protections to transgender and all LGBTQI+ Americans.

NYT: In 2014 There Was a Leak of the Hobby Lobby Result

The New York Times today posted a lengthy investigative article revealing that the leak of the draft Dobbs opinion earlier this year was not the first time that there had been a leak of information about a decision not yet released by the Supreme Court.  The Times article is based largely on information from Rev. Rob Schenck, formerly the head of an evangelical non-profit, Faith and Action.  In a letter he sent to Chief Justice Roberts after the leak of the Dobbs draft opinion, Schenck said in part:

Back in June 2014, when so many awaited the Court's opinion in Burwell v. Hobby Lobby, I was informed by a donor to the Capitol Hill-based non-profit organization I led that she and her husband would be dining at the home of Justice and Mrs. Alito. She suggested that in their table conversation, she might be able to learn the status of the case, something she knew I had an interest in knowing. I received a follow -up message from her notifying me she had indeed obtained the information during that visit. We spoke on the phone, and she detailed the revelation. As I recall, we talked about the Green family, owners of Hobby Lobby, and how they, too, would be interested in this information.

According to the Times:

Mr. Schenck recruited wealthy donors like Mrs. Wright and her husband, Donald, encouraging them to invite some of the justices to meals, to their vacation homes or to private clubs. He advised allies to contribute money to the Supreme Court Historical Society and then mingle with justices at its functions. He ingratiated himself with court officials who could help give him access, records show.

All the while, he leveraged his connections to raise money for his nonprofit, Faith and Action. Mr. Schenck said he pursued the Hobby Lobby information to cultivate the business’s president, Steve Green, as a donor....

Mr. Schenck, 64, has shifted his views on abortion in recent years, alienating him from many of his former associates, and is trying to re-establish himself, now as a progressive evangelical leader. His decision to speak out now about the Hobby Lobby episode, he said, stems from his regret about the actions that he claims led to his advance knowledge about the case....

[Schenck]  had long been an ends-justify-the-means anti-abortion provocateur....

... Mr. Schenck wanted the conservatives on the court to hear from people who would hail them as heroes if they seized the opportunity to strike down Roe one day. The goal, he said in an interview, was to “embolden the justices” to lay the legal groundwork for an eventual reversal by delivering “unapologetically conservative dissents.”

UPDATE: Here is the Supreme Court Legal Counsel's response to the NYT article.

Religious Children's Home Lacks Standing To Challenge Now-Defunct HHS Non-Discrimination Rule

 In Holston United Methodist Home for Children, Inc. v. Becerra, (ED TN, Nov. 18, 2022), a Tennessee federal district court held that a religiously affiliated children's home that places children for foster care or adoption lacks standing to challenge a 2016 anti-discrimination rule promulgated by the Department of Health and Human Services. According to the court:

Holston Home requires prospective foster and adoptive parents to affirm a Christian statement of faith and beliefs before they can engage in child-placement activities.... Further, Holston Home does not place children with foster or adoptive parents who are in same-sex relationships or unmarried couples of any biological sex who are romantically cohabitating....

While the challenged rule, promulgated at the end of the Obama Administration, barred such restrictions, HHS policy had undergone successive changes in the Trump and Biden Administrations. These are traced at length in the court's 22-page opinion. In particular the court noted:

Although HHS had not enforced the 2016 Grants Rule since it became effective, on November 19, 2019, HHS published a formal notification in the Federal Register to inform the public that it would not enforce the 2016 Grants Rule after determining that the rulemaking raised “significant concerns about compliance with the Regulatory Flexibility Act [‘RFA’].”...

Because the 2016 Grants Rule is, for all intents and purposes, defunct pursuant to the Notification of Nonenforcement, Holston Home faces no credible threat of prosecution.... Having also failed to show any history of past enforcement of the 2016 Grants Rule, enforcement warning letters, or a feature of the regulation making it easier or more likely to be enforced, Holston Home lacks standing to bring this lawsuit.

Cross On Park Land Must Remain While State Court Reconsiders Its Eminent Domain Ruling

 In Lions Club of Albany, California v. City of Albany, (ND CA, Nov. 17, 2022), a California federal district court clarified its 2018 ruling in which it held that the city of Albany violated the Establishment Clause by acquiring for a public park a 1.1 acre parcel of land that includes a large cross. Originally the cross was on private property, and the Lion's Club held an easement to maintain the 20-foot high cross and to illuminate it each Christmas and Easter. In its earlier ruling the court said that the city could cure its Establishment Clause problem in one of several ways, one of which was by taking the Lion's Club easement by eminent domain. (See prior posting.) In May 2022, the city began state court eminent domain proceedings.  The state court permitted the city to take prejudgment possession of the Lion's Club easement and take down the cross and store it in a safe place. The Lion's Club than filed the present federal court action seeking a preliminary injunction, contending that its free speech and free exercise rights were being violated. The court said in part:

The City wants to keep the park and remove the cross, not sell the land. Further, as revealed at our hearing, there is and has been no current offer by the Lions Club to purchase a parcel that includes the cross. These considerations are relevant in weighing hardships and, as explained above, the question of provisional relief is wholly in the hands of the [state court] Judge Chatterjee. He is free to rule either way without offending any order or dictum by this court. 

At our hearing, however, it also developed that the City cannot say with any certainty whether it can put the cross back up after its provisional removal, should the City ultimately lose the eminent domain jury trial.... Thus, as the Court sees things, this is not just a decision merely pending litigation, but rather practically, once the cross is down, it is down for good. This raises a serious exercise of religion problem and in considering this issue, Judge Chatterjee’s ruling appears to have been based on a misunderstanding of this Court’s prior ruling. Therefore, until such time as Judge Chatterjee can reassess the motion for prejudgment possession, taking into consideration the correct understanding of the June 2018 Order, removal of the cross is ENJOINED.

Maryland AG Asks Court to Approve Release of Report on Clergy Abuse

 A 35-page motion (full text) was filed yesterday by the Attorney General of Maryland in a Maryland state trial court seeking court approval to release a 456-page Report on Clergy Abuse in Maryland.  In re Special Investigation No. CID 18-2673 (Baltomore City Cir. Ct., filed 11/17/2022).  The Report that is the subject of the motion is the product of a three-and-one-half year grand jury investigation into sexual abuse by priests assigned to the Archdiocese of Baltimore and the Archdiocese's response to that abuse. Court approval is needed in order to release grand jury material. According to the motion:

The Report identifies 115 priests that were prosecuted for sex abuse and/or identified publicly by the Archdiocese as having been "credibly accused" of sexual abuse. The Report includes an additional 43 priests accused of sexual abuse but not identified publicly by the Archdiocese....

As shown in the Report, both boys and girls were abused, with ages ranging from preschool through young adulthood....

Washington Post reports on the AG's motion.

USCIRF Issues Report on State-Favored Religions and Religious Freedom

Yesterday the U.S. Commission on International Religious Freedom issued a report (full text) titled Implications of Laws Promoting State-Favored Religions. The report identified 78 countries with official or favored religions, 57 of which maintain laws or policies that lead to religious discrimination or repression, or that have the potential to do so.  The Report says in part:

[C]ontrary to popular misconception, there is no inevitable contradiction between freedom of religion or belief and a country’s adoption of an official or favored religion. As such, there are examples of countries that maintain an official or favored religion and protect FoRB as an essential human right.... 

Conversely, the absence of an official or favored religion is no guarantee of a country’s protection or promotion of FoRB. USCIRF has recommended CPC or SWL designation for a range of avowedly secular countries where the government consistently perpetrates or tolerates severe or particularly severe religious freedom violations as defined in IRFA....

9th Circuit: Religious School's Challenge to Covid Restrictions Is Moot

In Horizon Christian School v. Brown, (9th Cir., Nov. 17, 2022), the U.S. 9th Circuit Court of Appeals held that the free exercise and parental rights challenges to the Oregon governor's previous Covid restrictions on in-person school classes is moot. The claim for nominal damages does not prevent mootness because the suit against the governor in her official capacity is barred by the 11th Amendment. The court denied leave to amend plaintiffs' complaint because defendant had qualified immunity.  Judge O'Scannlain filed a concurring opinion saying that if there were not qualified immunity, he would hold that the governor's order impinged a fundamental constitutional right.

Romania Passes Legislation Protecting Kosher Slaughter

Israel National News reports that on Tuesday the Parliament in Romania gave final passage to a law that explicitly allows kosher slaughter of animals. As explained by Jewish News Syndicate:

The move comes after some other European Union members have banned shechita in recent years, including Sweden, Denmark, Finland, Estonia, Slovenia, and Belgium (except for in Brussels).

10th Circuit Denies En Banc Review in Ministerial Exception Case

In Tucker v. Faith Bible Chapel International, (10th Cir., Nov. 15, 2022), the U.S. 10th Circuit Court of Appeals by a vote of 6-4, denied en banc review of a panel decision which held that interlocutory appeals from the denial of a ministerial exception defense are not permitted. In the case, a former high school teacher and administrator/ chaplain contends that he was fired for opposing alleged racial discrimination by a Christian school. Judge Ebel, joined by Judge McHugh, filed an opinion concurring in the denial of review, saying in part:

Our panel decision, then, is consistent with well-established lines of Supreme Court precedent. Our decision also does not create any circuit split. It appears that no other circuit has addressed the specific question presented here—whether a religious employer is entitled to an immediate appeal under Cohen from a district court’s interlocutory ruling denying the employer summary judgment on its affirmative ministerial exception defense because there are genuinely disputed issues of material fact as to whether the employee qualifies as a minister.

Judge Bacharach, joined by Judges Tymkovich and Eid, filed a dissenting opinion, saying in part:

This appeal involves a religious body’s invocation of the collateral-order doctrine to appeal the denial of summary judgment on the ministerial exception. The panel majority rejected that effort, treating the ministerial exception like other affirmative defenses reviewed by appellate courts after final judgment. 

In my view, that treatment reflects a fundamental misconception of the ministerial exception. Though most defenses protect only against liability, the ministerial exception protects a religious body from the suit itself. Without that protection, religious bodies will inevitably incur protracted litigation over matters of religion. The stakes are exceptionally important for religious bodies deciding whom to hire or fire.

Americans United issued a press release announcing the decision.

5th Circuit: District Court's Order on Religious Rights in Execution Chamber Was Too Broad

In Barbee v. Collier, (5th Cir., Nov. 11, 2022), the U.S. 5th Circuit Court of Appeals vacated and remanded for further proceedings an injunction issued by a Texas federal district court that barred the execution of convicted murderer Stephen Barbee until the Texas Department of Criminal Justice publishes a clear policy on inmates' religious rights in the execution chamber. Barbee wants his spiritual advisor to pray aloud with him and hold his hand. (See prior posting.) The 5th Circuit said in part:

While a written policy may be desirable ..., the available remedy for Barbee’s RLUIPA violation “is an injunction ordering the accommodation,” ... As it stands, the preliminary injunction ordering the Defendants to enact a written policy on religious accommodation that would apply to all executions is overbroad and must be vacated. The district court may instead consider what relief specific to Barbee is consistent with Ramirez and is appropriate in this case.

On Monday, Barbee filed with U.S. Supreme Court Justice Samuel Alito an Application for a Stay of Execution (full text) and a Petition for Certiorari (full text). Yesterday, the state filed a Brief in Opposition to Barbee's filings (full text). Barbee's execution is currently scheduled for 6:00 pm Central Time today.  Courthouse News Service reports on these developments.

UPDATE: On Wednesday, Nov. 16, the U.S. Supreme Court denied Barbee's application for a stay of execution and his petition for certiorari. (Full text of Order.). Courthouse News Service reports.

Georgia's Heartbeat Abortion Ban Is Held Invalid

In Sistersong Women of Color Reproductive Justice Collective v. State of Georgia, (GA Super. Ct., Nov. 15, 2022), a Georgia state trial court enjoined enforcement of two sections of Georgia's Living Infants Fairness and Equality (LIFE) Act which was enacted in 2019.  The court invoked Georgia's "Void Ab Initio" doctrine. Quoting a Georgia Supreme Court case decided in 1900, the court said:

The time with reference to which the constitutionality of an act of the general assembly is to be determined is the date of its passage, and, if it is unconstitutional, then it is forever void.

Applying this, the court concluded that Section 4 which bans most abortions once a fetal heartbeat is detected, and Section 11 which requires physicians to file a justification for any abortions where a fetal heartbeat was detected, both were void when enacted and never became the law of Georgia.  However, Section 10 which requires doctors to determine the presence of a human heartbeat before performing an abortion is valid since even before the Dobbs decision, it could be justified as providing the mother with more information about the state of her pregnancy. The court also refused to dismiss a challenge to a provision of the law that authorizes district attorneys to access medical records relating to abortions. ACLU of Georgia issued a press release announcing the decision. 

EEOC Commissioner, In Unusual Procedure, Targets Abortion Travel Benefits By Employers

 Bloomberg Law reported yesterday:

Republican EEOC Commissioner Andrea Lucas is deploying a rarely used agency procedure to silently initiate targeted discrimination probes against at least three companies providing their employees with abortion travel benefits....

The investigations triggered by Commissioner Charges are based on claims by Lucas that by favoring employees seeking abortions and not furnishing comparable benefits to pregnant workers or disabled workers, employers are violating the pregnancy discrimination ban in Title VII or the Americans with Disabilities Act. Bloomberg Law also reports that the EEOC's former general counsel, even though she no longer held a position with the agency after being fired by the Biden administration, last month sent letters to a number of employers warning them of the possibility of such actions by the EEOC.

Court Says Title IX and ACA Do Not Bar Transgender Discrimination

In Neese v. Beccera, (ND TX, Nov. 11, 2022), a Texas federal district court granted declaratory relief concluding that neither Title IX nor Section 1557 of the Affordable Care Act that incorporates Title IX's ban on sex discrimination prohibit discrimination on the basis of sexual orientation and gender identity.  At issue is a Notice and Guidance on Gender Affirming Care issued by the Department of Health and Human Services in March 2022 which is challenged by two physicians who make sex-specific medical decisions relevant to gender identity. The court reasoned that the Supreme Court's Bostock decision that interprets Title VII's prohibition of discrimination "because of" sex does not automatically carry over to Title IX that prohibits discrimination "on the basis of" sex. The court began its opinion as follows:

In his Bostock dissent, Justice Alito foresaw how litigants would stretch the majority opinion like an elastic blanket to cover categories, cases, and controversies expressly not decided. Justice Alito warned: "The entire Federal Judiciary will be mired for years in disputes about the reach of the Court's reasoning."...

And here we are....

The court reasoned in part:

Title IX presumes sexual dimorphism in section after section, requiring equal treatment for each "sex."...

Defendants' reinterpretation of Title IX through the Notification imperils the very opportunities for women Title IX was designed to promote and protect -- categorically forcing biological women to compete against biological men.

ADF issued a press release announcing the decision.

Pakistan Court Quashes Blasphemy Charge-- Dreams Are Not Criminal

 In Khan v. Station House Officer, (Lahore High Ct., Nov.11, 2022), a Pakistani appellate court held that Pakistan Criminal Code Sec. 295A that prohibits deliberate and malicious insulting of religious beliefs was not violated by petitioner when he began telling the public that he could fly and that he saw Allah and various of his companions in his dreams. The court said in part:

[T]he offence under section 295-A PPC is not made out. There is no allegation that the Petitioner did anything to offend any group of people or insult their religion or religious beliefs. Furthermore, the Assistant Advocate General could not point out any circumstances that might indicate malice on his part.....

FIR No. 337/2021 accuses the Petitioner of entertaining and propagating blasphemous notions but does not provide any details. He is facing prosecution for claiming that he can fly and for having frequent dreams in which he sees Almighty Allah and some holy figures. As discussed above, scientists have many theories about why dreams happen and their purpose, but they all agree that one can only dream while sleeping. Sleep is a cyclical process. It happens in five stages, each of which contributes to the body’s goal of strengthening and rejuvenation....

Albeit one can have several dreams every night, one cannot control them. A person cannot be prosecuted for what he sees in his dreams or for sharing his thoughts, visions, or emotions during those times with others....

It frequently happens that those accused of blasphemy have a mental condition....

Article 10A of the Constitution and the principle of fair investigation discussed above require that when a police officer investigates an offence, particularly one under Chapter XV of the Penal Code, he should determine whether the accused is of sound mind. He must apply to the competent forum for his psychiatric evaluation if he suspects mental illness.

Dawn reports on the decision. 

Recent Articles of Interest

From SSRN:

• Brady Earley, Religious Freedom 'with Chinese Characteristics', (May 19, 2022).
• Dhruv Patel, Settling the Unending Legal Battle for the Holy Site in Ayodhya: Revisiting the Ram Janmabhoomi – Babri Masjid Case, (November 9, 2022).
• David H. Schraub, Liberal Jews and Religious Liberty, (November 5, 2022).
• Naiomi Metallic, Aboriginal Rights, Legislative Reconciliation and Constitutionalism, (October 31, 2022).
• Daniela Alaattinoglu, Intersex Rights in the Icelandic Gender Autonomy Act, (February 2022).
• Reiko Kato & Etsuko Toyoda, Marital Surname System in Japan - Fūfubessei Issues and Disparate Impact of Civil Code Article 750 and Koseki (Family Registry) Law, (June 30, 2022).
• Cynthia Soohoo, After Dobbs, Are Rights for Zygotes, Embryos, and Fetuses Next?, (CUNY Law Review Blog (2022)).
• Fazal Ahmad Ahmadi, The Role of Imam Muhammad Bin Hassan Shibani in the Codification and Development of Islamic International Law, (November 3, 2022).
• Rosemary Teele Langford, Charities and the Fiduciary Paradigm, ((2022) 16 Journal of Equity).
• Rosemary Teele Langford & Malcolm Edward Anderson, Governance Duties and Conflicts of Interest in the Charities Sector: Australia and England & Wales Compared, ((2022) 28 Third Sector Review).

From SmartCILP:

• Patrick Hornbeck, A Nun, a Synagogue Janitor, and a Social Work Professor Walk up to the Bar: The Expanding Ministerial Exception, 70 Buffalo Law Review 695-780 (2022).
• Benjamin Schonthal, The Case for Religious Constitutions: Comparative Constitutional Law among Buddhists and Other Religious Groups, [Abstract], (47 Law & Social Inquiry 391-419 (2022)).
• Sagnik Dutta, Competing Allies: Legal Pluralism, and Gendered Agency in Mumbai's Sharia Courts, (47 Law & Social Inquiry 514-534 (2022)).

Claims Against Social Worker Who Questioned Foster Parents' Religion Is Dismissed

 In Sarmiento v. Marquez, (ND CA, Nov. 10, 2022), a California federal district court dismissed religious discrimination and retaliation claims against county social work personnel who attempted, ultimately unsuccessfully, to remove a foster child from plaintiffs' care. The court explained:

Plaintiffs contend that, as they were proceeding toward adoption of the child in their care, County social worker Luz Sanclemente asked Sarmiento whether she “[believed] in God,” and whether she “[believed] in Jesus Christ.” ... Plaintiffs allege that defendants thereafter sought to remove the child from their care in “retaliation for not appearing to be Christians.”

However, the court concluded:

Sanclemente’s query into plaintiffs’ beliefs ... did not at all “coerce [them] into acting contrary to their religious beliefs or exert substantial pressure on [plaintiffs] to modify [their] behavior and to violate [their] beliefs.” ... Plaintiffs do not identify any action they took differently based on Sanclemente’s questioning. Plaintiffs do not represent that Sanclemente offered a quid pro quo, such as continued custody of the child in exchange for plaintiffs’ conversion to Christianity....

A First Amendment claim for retaliation requires a “substantial causal relationship” between a plaintiff’s “constitutionally protected activity” and “adverse [government] action . . . that would chill a person of ordinary firmness from continuing to engage in the protected activity.”,,,

Here, the [complaint] only speculates that there was a relationship between (1) plaintiffs’ response to Sanclemente that they are not Christians and (2) defendants’ actions to remove the child from plaintiffs’ care....

Texas Prisons Must Adopt Formal Policy on Religious Rights in Execution Chamber

In Barbee v. Collier, (SD TX, Nov. 3, 2022), an inmate whose execution had been scheduled sought a court order from a Texas federal district requiring Texas to allow his spiritual advisor to be present with him in the execution chamber, to pray audibly with him and have physical contact with him, holding his hand, to confer a blessing on him. The Director of the Texas Department of Criminal Justice filed a series of affidavits assuring the court that these requests would be granted and moved dismiss the lawsuit as moot. The court, however, was unconvinced, saying in part:

In Ramirez [v.  Collier], the Supreme Court encouraged States to "adopt clear rules" and "streamlined procedures" that would protect an inmate's religious rights in the execution chamber.... TDCJ has not responded by enacting any formal policy guaranteeing religious expression in the execution chamber. Instead, TDCJ has left in place an official execution protocol that contains provisions describing the presence, approval process, and vetting requirements for spiritual advisors. Hence, the 2021 protocol is silent as to what a spiritual advisor may do, if anything, inside the execution chamber.,,, 

TDCJ has apparently left the question of what a spiritual advisor may do to the discretion of prison officials.... Until quite recently, TDCJ officials interpreted the silence in the official protocol to prohibit any physical touch or audible prayer in the execution chamber. Now, TDCJ would have the Court accept their latest pronouncement that the same provisions may be read to allow physical contact and audible prayer.... TDCJ officials have initiated a practice of allowing physical contact and audible prayer when the requests are sufficiently timely and permit security checks.

However, the defendants have not specifically formalized in a policy or otherwise described what the basis is for it unwritten practice....

[TDJC] has been encouraged by the highest court in the land to develop a policy that can be reviewed.  The stubbornness of TDCJ to enact a policy that removes all discretion, except in critical instances, militates against extending the lesser burden to TDCJ.

The court entered a Preliminary Injunction that provides:

Texas [TDCJ] may proceed with the execution of Stephen Barbee on November 16, 2022, only after it publishes a clear policy that has been approved by its governing policy body that (1) protects an inmate's religious rights in the execution chamber and (2) sets out any exceptions to that policy, further describing with precision what those exceptions are or may be.

2nd Circuit Remands Challenge to Emergency Ban of Unvaccinated Children from Public Places

In M.A. v Rockland County Department of Health, (2d Cir., Nov. 9, 2022), the U.S. 2nd Circuit Court of Appeals sent back to the trial court a free exercise challenge to Rockland County, New York's Emergency Declaration barring children who were not vaccinated against measles from places of public assembly.  Children with medical exemptions were exempt from the ban. The court said in part:

Because there are factual issues relevant to whether the Emergency Declaration was neutral and generally applicable, the district court erred in granting summary judgment in favor of Defendants on Plaintiffs’ claim that the Emergency Declaration violated their rights under the Free Exercise Clause. While a reasonable juror could conclude that [County Executive] Day’s statements evinced religious animus, rendering the Declaration not neutral, a reasonable juror could also conclude the opposite. Similarly, there are disputes of fact regarding whether the Declaration, in practice, primarily affected children of religious objectors or whether there was a sizable population of children who were unvaccinated for a variety of non-medical and non-religious reasons. There are also disputes as to whether the County’s purpose in issuing the Declaration was to stop the spread of measles or to encourage vaccination. Given these fact-intensive issues, the district court’s grant of summary judgment on Plaintiffs’ Free Exercise Claim was erroneous.

Judge Park filed a concurring opinion, saying in part:

In the spring of 2019, Rockland County quarantined children who were unvaccinated for measles for religious reasons— prohibiting them from entering any public place—but not children who were unvaccinated with medical exemptions. County officials did not even try to hide their reasons for engaging in this “religious gerrymander[ing],” which served to isolate, target, and burden Plaintiffs’ religious practices.... To them, Plaintiffs were “anti-vaxxers” who were “loud, very vocal, [and] also very ignorant.”...

Court Upholds NY Law Banning Bars from Opening on New Year's When It Falls on Sunday

In Eris Evolution, LLC v. Bradley, (ED NY, Nov. 8, 2022), a New York federal district court rejected an Establishment Clause challenge to a provision in New York's liquor laws that allows bars to apply for permits to stay open all night on New Year's except when New Year's falls on a Sunday. The court concluded that the U.S. Supreme Court's 1961 decision in McGowan v. Maryland upholding Sunday closing laws forecloses plaintiff's claim.  The court said in part:

McGowan holds that a law with a secular purpose does not violate the Establishment Clause; it does not hold that providing a uniform day of rest is the only such purpose. Indeed, the Supreme Court enumerated the exceedingly broad categories of “health, safety, recreation and general well-being.” ... The only available legislative history states that the law at issue was amended in 1950 “to protect the health of the people.”...

Eris must do more than show that the law is irrational; it must also show that its real purpose is to advance a particular religion or religion in general. This it has failed to do.

Parties Agree To $2 Million + Attorneys' Fees in Christian Flag Case

After plaintiffs' win in the Supreme Court in Shurtleff v. City of Boston (the Christian flag case), plaintiffs sought to recover attorneys' fees and costs for the five years of litigation. On Nov. 8, the parties filed a Joint Notice of Settlement in the case in a Massachusetts federal district court. The City of Boston will pay $2,125,000 to Liberty Counsel, attorneys for plaintiffs.  Liberty Counsel issued a press release announcing the settlement.

SCOTUS Hears Arguments in Indian Child Welfare Act Case

Yesterday the U.S. Supreme Court heard oral arguments in Haaland v. Brackeen. (Audio and transcript of full oral arguments). SCOTUSblog reported on the arguments. At issue is the constitutionality of the Indian Child Welfare Act of 1978 which attempts to prevent child welfare and adoption agencies from placing Native American children outside of their tribe. (SCOTUSblog case page.) A number of commentators have pointed out that issues of religion underlie the controversy in the four consolidated cases heard yesterday. Religion News Service explains, saying that the Act was a reaction to past efforts by the U.S. government to remove Native American children from their homes and place them in boarding schools:

The U.S. is only now reckoning with the history of its boarding schools, which separated generations of children from their families and prohibited them from speaking Native languages, dressing and wearing their hair in traditional styles and taking part in traditional spiritual practices in an effort to assimilate them into the dominant white Christian culture.

Half of boarding schools likely were supported by Christian institutions, according to a report released earlier this year by the U.S. Department of the Interior. A number of denominations are now researching and repenting for their past involvement.

Results From Election Day on Ballot Issues of Interest

Here are Tuesday's vote results for the ten ballot issues of interest to those following law and religion developments.  More details and updated information are available at Ballotpedia.

Arkansas Issue 3: Constitutional amendment that would provide "government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability." Losing 49.56%- 50.44% with 97% of precincts reporting.

California Proposition 1: Right to Reproductive Freedom Amendment. Passed 65%- 35%.

Colorado Amendment F: Constitutional amendment to allow operators of charitable gaming activities to be paid and authorize the legislature to determine how long an organization must exist to obtain a charitable gaming license. Defeated 39%- 61%.

Kentucky Constitutional Amendment 2:  Amendment to the Kentucky Constitution to provide that nothing in the state constitution creates a right to abortion or requires government funding for abortion. Defeated 48%- 52%.

Michigan Proposal 3: Constitutional amendment to provide a right to reproductive freedom. Passed 57%- 43%

Montana LR-131: Referendum on statute that states infants born alive at any stage of development are legal persons, and requires medical care for infants born alive after an induced labor, cesarean section, or attempted abortion. Losing 48%- 52% with 85% of precincts reporting.

Nevada Question 1: Constitutional amendment to prohibit the denial or abridgment of rights on account of an individual's race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin. Winning 57%- 43% with 77% of precincts reporting.

Tennessee Constitutional Amendment 4: Amendment to repeal section of the Tennessee Constitution that disqualifies religious ministers from being elected to the state General Assembly. Passed 63%- 37%.

Vermont Proposal 5: Constitution amendment that would protect the right to personal reproductive autonomy and prohibit government infringement unless justified by a compelling state interest. Passed 77%- 23%.

West Virginia Amendment 3: Amendment to remove the state constitution's prohibition on incorporating religious denominations and churches and to authorize the state legislature to pass laws providing for such incorporations. Defeated 45%- 55%.

Suit Challenges Refusal to Grant Religious Exemption from Covid Vaccine Mandate

Suit was filed last week in a New Jersey state trial court by a Behavioral Support Technician at a state-operated group home who was fired after refusing on religious grounds to comply with the facility's Covid vaccine mandate. The facility refused to grant a religious exemption to plaintiff.  The complaint (full text) in Bowleg v. New Jersey Department of Human Services, (NJ Super. Ct., filed 11/3/2022), alleges that the New Jersey Law Against Discrimination was violated by failing to accommodate plaintiff's religious objections, and by wrongful termination and retaliation that constitute religious discrimination. Thomas More Society issued a press release announcing the filing of the lawsuit.

Airline Settles EEOC Suit on Behalf of Buddhist Pilot

The EEOC announced this week that United Airlines has settled a religious discrimination lawsuit filed by the agency on behalf of a Buddhist airline pilot.  According to the EEOC:

[T]he pilot was diagnosed with alcohol dependency and lost the medical certificate issued by the Federal Aviation Administration (FAA). One of the requirements of United’s HIMS program ... to obtain new medical certificates from the FAA is that pilots regularly attend Alcoholics Anonymous (AA). The pilot, who is Buddhist, objected to the religious content of AA and sought to substitute regular attendance at a Buddhism-based peer support group. United refused to accommodate his religious objection and, as a result, the pilot was unable to obtain a new FAA medical certificate permitting him to fly again, the agency charged....

Under the consent decree that resolves the lawsuit, United will pay the pilot $305,000 in back pay and damages and will reinstate him into its HIMS Program while allowing him to attend a non-12-step peer recovery program. The company will also accept religious accommo­dation requests in its HIMS Program going forward, institute a new policy on religious accom­modations, and train its employees.

Community College Vaccine Mandates Upheld

In George v. Grossmont Cuyamaca Community College District Board of Governors, (SD CA, Nov. 3, 2022), a California federal district court, in a 41-page opinion, rejected a variety of constitutional challenges and a religious discrimination challenge under Title VII to the Covid vaccine mandates of three community college districts. Plaintiffs were six employees and a student.  The mandates provided for medical and religious exemptions and accommodations. In evaluating plaintiffs' free exercise claims, the court concluded that both the mandates and the accommodation frameworks are neutral and generally applicable. In rejecting the Title VII claim, the court concluded that plaintiffs had shown no adverse employment action against them because they had all received religious exemptions.

Prisoner's RLUIPA Suit Remanded for Consideration of Statute's "Safe harbor" Provision

 In Richardson v. Clarke, (4th Cir., Nov. 7, 2022), the U.S. 4th Circuit Court of Appeals held that a prison's former policy that required inmates to remove head coverings, including religious head coverings, in certain areas of the prison imposed a substantial burden on plaintiff's religious exercise. The court remanded the case to the district court for consideration of the applicability of RLUIPA's safe harbor that allows prisons to avoid liability under RLUIPA by changing the policy or practice that imposes a substantial burden or by providing exemptions from it.

Student Statement Opposing Reproductive Rights Issue Must Be Read During School Announcements

 In Nielson v. Ann Arbor Public Schools, (ED MI, Nov. 4, 2022), a Michigan federal district court issued a temporary restraining order requiring a public high school to read an announcement from the school's Republican Club in opposition to the Reproductive Rights constitutional amendment on the Nov. 8 ballot.  The school contended that reading it would violate the Michigan Campaign Finance Act which bars the school from advocating for ballot issues.  However, the school was permitting students who favor the ballot proposal to take part in a walkout sponsored by the National Organization for Women.  The court said in part:

Plaintiffs have shown a likelihood of success on the merits of their First Amendment claim....

The Court finds that Defendants seek to silence Plaintiffs’ appropriate speech as to Proposal 3 by refusing to broadcast it with their morning announcements, while permitting students in favor of Proposal 3 to cut classes, and to demonstrate on school property in favor of Proposal 3.

Thomas More Law Center issued a press release announcing the decision (with links to pleadings in the case as well).

Tennessee AG: Abortion Ban Does Not Bar Disposal of Excess Embryos Created During IVF Process

Tennessee's Attorney General last month issued Opinion No. 22-12 (Oct. 20, 2022) clarifying that the abortion ban in Tennessee's Human Life Protection Act does not apply to the disposal of embryos which have not been transferred to a woman's uterus. Thus the law would not bar disposal of excess embryos created during the in vitro fertilization procedure. Tennessee Lookout reports on the AG's opinion. [Thanks to Scott Mange for the lead.]

Ten Issues of Interest Are on Today's Ballots Across the Country

Today voters in ten states will be voting on ballot measures that relate to religious institutions, reproductive rights, clergy, religious freedom or religious and LGBTQ discrimination.  Here are summaries of each measure with links to fuller explanations on Ballotpedia:

Arkansas Issue 3: Constitutional amendment that would provide "government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability."

California Proposition 1: Right to Reproductive Freedom Amendment.

Colorado Amendment F: Constitutional amendment to allow operators of charitable gaming activities to be paid and authorize the legislature to determine how long an organization must exist to obtain a charitable gaming license.

Kentucky Constitutional Amendment 2:  Amendment to the Kentucky Constitution to provide that nothing in the state constitution creates a right to abortion or requires government funding for abortion.

Michigan Proposal 3: Constitutional amendment to provide a right to reproductive freedom.

Montana LR-131: Referendum on statute that states infants born alive at any stage of development are legal persons, and requires medical care for infants born alive after an induced labor, cesarean section, or attempted abortion.

Nevada Question 1: Constitutional amendment to prohibit the denial or abridgment of rights on account of an individual's race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin.

Tennessee Constitutional Amendment 4: Amendment to repeal section of the Tennessee Constitution that disqualifies religious ministers from being elected to the state General Assembly.

Vermont Proposal 5: Constitution amendment that would protect the right to personal reproductive autonomy and prohibit government infringement unless justified by a compelling state interest.

West Virginia Amendment 3: Amendment to remove the state constitution's prohibition on incorporating religious denominations and churches and to authorize the state legislature to pass laws providing for such incorporations.

Actor's Disparate-Impact Religious Discrimination Claim Is Dismissed

 In Dunbar v. Disney, (CD CA, Nov. 3, 2022), a California federal district court dismissed an amended complaint filed by "9-1-1" actor Rockmond Dunbar in his Title VII disparate-impact religious discrimination claim against Walt Disney Company. Dunbar was denied a religious exemption from Disney's Covid vaccine mandate and was fired when he refused to be vaccinated. He claimed that according to beliefs of his Universal Wisdom Church it is a sacrilege to ingest medication, chemicals, or other foreign matters that defy natural law. His disparate impact claim failed originally because he was unable to identify other Universal Wisdom Church members who were similarly impacted. He then amended the complaint to allege that three other employees of other religious denominations were impacted. The court held, however, that this was insufficient to identify a "protected group" that was impacted because the group he points to is identified solely by the existence of the alleged discriminatory business practices. Hollywood Reporter reports on the decision.

Recent Articles of Interest

From SSRN:

• H. Justin Pace, The Utility of Originalism in Mitigating Judicial Elite Bias: Evidence from the 2021-2022 Supreme Court Term, (October 26, 2022).
• Richard Schragger & Micah Schwartzman, Religious Freedom and Abortion, (Iowa Law Review, Forthcoming).
• Micah Schwartzman & Richard Schragger, Slipping from Secularism, (Virginia Public Law and Legal Theory Research Paper No. 2022-75 (2022).
• Stijn Smet, The Impossibility of Neutrality? How Courts Engage with the Neutrality Argument, (Forthcoming, Oxford Journal of Law and Religion (2023)).
• Phil Lord, Echoes of Responsibility, 4 International Journal of Coercion, Abuse, and Manipulation __ (Forthcoming 2023).
• Martha F. Davis, The State of Abortion Rights in the US, (International Journal of Gynecology & Obstetrics 159.1 (October 2022): 324-329).

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

• Akshat Agarwal, Marriage Equality in India: Thinking Beyond Judicial Challenges to Secular Marriage Law, Indian Law Review, 6:2, 170-188 (2022).
• Prakash Shah, Book Review: Religious Offences in Common Law Asia, (Australian Journal of Asian Law, Vol. 23, No. 1, Article 9: 141-142, 2022).
• Shayna Sharim, Esq., Veiled, (October 16, 2022).
• Shayna Sharim, Esq., Childhood Marriages in Iran: Stolen Lives, Empty Classrooms, and Lost Dreams, (October 16, 2022).
• Mehdi J. Hakimi, The Genocide of Hazaras, (Virginia Journal of International Law Online, Vol. 63 (Forthcoming 2022-23)).

From SmartCILP and elsewhere:

• Susan Pace Hamill, Moral Reflections on Twenty-First Century Tax Policy Trends, 52 Cumberland Law Review 1-78 (2022).
• David M. Smolin, Kids Are Not Cakes: A Children's Rights Perspective on Fulton v. City of Philadelphia, 52 Cumberland Law Review 79-162 (2022).
• John Inazu, COVID-19, Churches, and Culture Wars,18 University of St. Thomas Law Journal 307-329 (2022).
• Charles J. Reid Jr., Thomas Aquinas on Tyrannicide, 18 University of St. Thomas Law Journal 330-358 (2022).
• Robin Fretwell Wilson, The COVID-19 Worship Cases Lessons for Governors in Democratic Governance and Transparency over "Edicts", 18 University of St. Thomas Law Journal 422-509 (2022).
• Journal of Law and Religion, Volume 37, Issue 3 (September 2022).

European Court: Human Rights Convention Violated When French Authorities Failed to Assure Respect for Foster Child's Birth Religion

In Loste v. France, (ECHR, Nov. 3, 2022) (full text in French) (Press Release summary in English), the European Court of Human Rights in a Chamber judgment held that France's child welfare service violated Article 9 of the European Convention on Human Rights when it failed to assure that a Jehovah's Witness foster family was respecting the Muslim beliefs of its foster child's birth family. The Court's decision also dealt with a separate issue--French authorities' failure to protect the foster child from sexual abuse by her foster father. Law & Religion UK has more on the decision.

Suit Challenges New York Ban on Firearms in Houses of Worship

Suit was filed this week in a New York federal district court challenging the constitutionality of New York's ban on carrying firearms in houses of worship. The complaint (full text) in His Tabernacle Family Church, Inc. v. Nigrelli, (WD NY, filed 11/3/2022) alleges that the ban violates the free exercise, Establishment Clause, Second Amendment, and equal protection rights of a church and its pastor.  The complaint says in part:

S51001 forbids Pastor Spencer and the Church’s members, under threat of criminal penalties, from exercising their religious conviction to carry firearms into the Church to protect themselves and other congregants.....

[S51101]  subjects houses of worship to disfavored treatment while treating comparable secular organizations, such as retail stores or restaurants, more favorably than those offering religious exercise....

A church’s authority over who may enter the sanctuary and under what circumstances lies at the very heart of “the general principle of church autonomy” protected by the Establishment Clause.....

First Liberty issued a press release announcing the filing of the lawsuit. Last month, in another case, the same court issued a temporary restraining order barring enforcement of this statutory provision. (See prior posting.)

Emergency Injunction Against NYC City-Worker Vaccine Mandates Sought from Supreme Court

An Emergency Application for an Injunction Pending Appellate Review (full text) was filed with the U.S. Supreme Court yesterday in New Yorkers for Religious Liberty v. City of New York.  The petition seeks an injunction against enforcing New York City's Covid vaccine mandates for city workers against those with religious objections to the vaccine. Petitioners argue in part:

Because the City’s Mandates provide for individualized exemptions, play denominational favorites, grant the government substantial discretion, and treat religious objectors less favorably than secular (e.g., economic) objectors, the Mandates violate Applicants’ free-exercise rights.

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

Challenges To School COVID Mitigation Requirements Are Dismissed

 In Tracy v. Stephens, (D UT, Nov. 1, 2022), a Utah federal district court dismissed claims that plaintiffs' rights were violated by school district COVID orders requiring the wearing of masks and social distancing.  The court said in part:

Plaintiffs have not identified what speech or type of speech was suppressed, meaning the court cannot apply the correct test to determine whether a regulation of it was permissible.... Plaintiffs have also not pleaded facts allowing for a plausible inference that by declining to wear masks or face coverings, or to participate in social distancing or isolation measures, they were engaged in inherently expressive conduct protected by the First Amendment....

Plaintiffs assert the Free Exercise Clause is implicated because they “hold a deeply held religious belief against the covering of their faces as this would violate their religious conscience,” and that they have a “God-given right to refuse unwanted medical treatment.”... But the Amended Complaint does not contain sufficient facts for the court to engage in the required analysis. Plaintiffs neither sufficiently identify the religious practices targeted and suppressed by Defendants, nor the provision(s) of the regulation(s) used by Defendants to target these practices. But Plaintiffs do identify an exemption process that would seemingly have allowed them to avoid the regulations’ requirements....

The court also dismissed plaintiffs' freedom of association, due process, equal protection, 4th, 9th and 13th Amendment, Civil Rights Act, conspiracy and state constitutional claims. 

Disciplinary Warning to Justice of the Peace Who Would Not Perform Same-Sex Weddings Is Upheld

In Hensley v. State Commission on Judicial Conduct, (TX App., Nov. 3, 2022), a Texas state appellate court affirmed the dismissal of a suit challenging a public warning issued by the Commission on Judicial Conduct that concluded plaintiff, a justice of the peace, has cast doubt on her ability to act impartially toward LGBTQ litigants. Plaintiff refused to perform same-sex weddings, while continuing to perform weddings for heterosexual couples. Instead of appealing the Commission's public warning to a special court of review, as provided by Texas statutes, plaintiff filed suit in state trial court arguing that the Commission had violated her rights under the Texas Religious Freedom Act and that her conduct had not violated the Code of Judicial Conduct.  She sought damages and additional declaratory relief. The appeals court said in part:

The trial court correctly dismissed this impermissible collateral attack on the Commission’s order....

Because the evidence establishes that the Commission has in fact not threatened further disciplinary action against Hensley, she has failed to carry her burden of demonstrating that the TRFRA waives the Commission’s immunity for her claim that threats of further discipline by the Commission have burdened her free exercise of religion.

Justice Goodwin filed a concurring opinion saying in part:

I would decide Hensley’s TRFRA claims on the ground that she did not comply with its notice provisions.... I do not agree with the Court’s analysis..., particularly the Court making an implicit finding by the Commission that its investigation and disciplinary action did not substantially violate Hensley’s free exercise of religion and that this implied finding foreclosed any future claims.

KWTX News reports on the decision. 

9th Circuit: Requiring Beauty Pageant to Include Transgender Female Violates Its Free Speech Rights

In Green v. Miss United States of America, LLC, (9th Cir., Nov. 2, 2022), the U.S. 9th Circuit Court of Appeals held that it violates the free speech rights of the Miss USA Pageant to require it under Oregon's Public Accommodations Act to include a transgender female in the Pageant. The court's majority, in an opinion by Judge VanDyke joined by Judge Bea, said in part:

Requiring Miss United States of America to allow Green to compete in its pageants would be to explicitly require Miss United States of America to remove its “natural born female” rule from its entry requirements. This in turn would directly affect the message that is conveyed by every single contestant in a Miss United States of America pageant. With the Pageant’s “natural born female” rule, every viewer of a Miss United States of America pageant receives the Pageant’s message that the “ideal woman” is a biological female, because every contestant is a “natural born female.” If the Pageant were no longer able to enforce its “natural born female” rule, even if a given transgender contestant or contestants never openly communicated to anyone outside of the Pageant their transgender status and were otherwise fully indistinguishable from the “natural born female” contestants (at least as presented in the Pageant)—and more fundamentally, even if no transgender contestants were to enter a Miss United States of America pageant—the Pageant’s expression would nonetheless be fundamentally altered. Without the “natural born female” rule, viewers would be viewing a fundamentally different pageant from that which presently obtains: one which could contain contestants who are not “natural born female[s].” Thus, the Pageant’s desired expression of who can be an “ideal woman” would be suppressed and thereby transformed through the coercive power of the law if the OPAA were to be applied to it....

Application of the OPAA would force the Pageant to include Green and therefore alter its speech. Such compulsion is a content-based regulation under our caselaw, and as such warrants strict scrutiny.

Judge VanDyke also filed a concurring opinion speaking only for himself, saying that forced inclusion of a transgender female in the Pageant infringes the Pageant's freedom of association as well as its freedom of speech.

Judge Graber dissented, contending that the court should not reach the constitutional question until it is determined whether the Oregon Public Accommodations Act even applies to the Miss USA Pageant.  Reuters reports on the decision.

Religious Parties Winning 33 Seats In Israel's Knesset Election

Haaretz reports that as of 4:07 PM Nov. 2 (Israeli time), with 85.9% of the vote in yesterday's election counted, three Jewish religious parties appear to have won seats in the Knesset: Religious Zionism- 14 seats; Shas- 11 seats; United Torah Judaism- 8 seats.  Benjamin Netanyahu's Likud Party appears to have won 32 seats, so that in coalition with the religious parties, they will have a majority of the 120 seats in the Knesset. There could be some change in these numbers as Meretz has won 3.19% of the vote so far. If this increases to 3.25% in the final tabulation, it will take a seat.

Suit Challenges Law Limiting Employer Right to Force Employees to Listen to Religious Presentations

 A number of business organizations filed suit yesterday in a Connecticut federal district court challenging on free speech grounds a Connecticut statute that protects employees from being made into captive audiences. The statute imposes liability on employers that discipline employees who refuse to attend employer-sponsored meetings or listen to employer communications whose primary purpose is to express the employer's views on religious or political matters. The complaint (full text) in Chamber of Commerce of the USA v. Bartolemo, (D CT, filed 11/1/2022), also contends that the state law is pre-empted by the National Labor Relations Act. Ct  Mirror reports on the lawsuit.

New Survey Covers Attitudes About Religion, Christianity and Christian Nationalism in Public Life

The Pew Research Center last week (Oct. 27) released an extensive poll on the attitudes of the American public about religion's role in public life.  It asked questions about whether the U.S. should be a Christian nation, whether respondents have heard of Christian nationalism, and much more. The 65-page report (full text) on the poll says in part: 

Overall, six-in-ten U.S. adults – including nearly seven-in-ten Christians – say they believe the founders “originally intended” for the U.S. to be a Christian nation. And 45% of U.S. adults – including about six-in-ten Christians – say they think the country “should be” a Christian nation. A third say the U.S. “is now” a Christian nation. 

At the same time, a large majority of the public expresses some reservations about intermingling religion and government. For example, about three-quarters of U.S. adults (77%) say that churches and other houses of worship should not endorse candidates for political offices. Two-thirds (67%) say that religious institutions should keep out of political matters rather than expressing their views on day-to-day social or political questions. And the new survey – along with other recent Center research – makes clear that there is far more support for the idea of separation of church and state than opposition to it among Americans overall.

Student and Coach Sue After Being Disciplined for Criticizing Transgender Student's Use of Girl's Locker Room

Suit was filed last week in a Vermont federal district court by a 14-year old student and her father, a school soccer coach, contending that their free speech and due process rights were violated when the school disciplined them for remarks they made criticizing a transgender female's use of the girl's locker room. The daughter's remarks were made to friends in a French class.  The father made his remarks in a Facebook post.  The controversy escalated and was covered by a local TV station.  The complaint (full text) in Allen v. Millington, (D VT, filed 10/27/2022), alleges in part:

The First Amendment does not countenance this kind of government censorship, where a public school mandates that students and coaches refrain from expressing any view that offends its prescribed views....This case presents a textbook example of unconstitutional viewpoint discrimination, and Plaintiffs are entitled to all appropriate relief.

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

Legal Changes to Promote Religious Harmony Come into Effect in Singapore

A press release from the Singapore Ministry of Home Affairs points out that 2019 amendments to the Maintenance of Religious Harmony Act and 2021 amendments to the Criminal Law go into effect today. According to the press release:

Key administrative leadership positions in religious groups are to be held only by Singapore Citizens (SC) or Permanent Residents (PR), and the majority of the governing body has to be SCs....

Religious groups must declare single monetary donations of S$10,000 or more from foreign sources...

Religious groups must declare any affiliations to foreign persons or organisations which are in a position of control or power over the local religious group....

 ... [W]e will introduce the CRI [Community Remedial Initiative], to be offered by the Minister for Home Affairs, as an opportunity for a person to take remedial actions to soothe communal tensions and repair disrupted ties.

(a)   Examples of such remedial actions include a public or private apology to the aggrieved parties, or participation in inter-religious events. This will provide an opportunity for the person to make amends to the affected community, and better understand the sensitivities of Singapore’s multi-religious society....

... [A]mendments will update the RO [Restraining Order] regime to enable us to swiftly and effectively respond to offensive online content that might cause widespread harm to religious harmony. The updated RO regime will also allow us to safeguard against foreign influences on our local religious groups that may undermine our religious harmony....