Suit Challenging School's Scheduling of Revival As An Assembly May Move Ahead

In Mays v. Cabell County Board of Education, (SD WV, Dec. 13, 2022), a West Virginia federal district court refused to dismiss a suit against a school, its principal and a substitute teacher for scheduling and hosting an evangelical Christian revival as an assembly in the school auditorium during homeroom period in violation of the Establishment Clause.  The court said in part:

At the very least, the allegations against Principal Gleason and Mr. Jones are that they organized and scheduled a revival that was initiated and sponsored by adults, not students. The revival also was given preferential treatment as it was scheduled during a time and in a location that was unavailable to other groups who wanted to bring in outside speakers. Moreover, Mr. Jones’ entire class and another class were taken to the revival without being told what it was, and Mr. Jones would not let S.F. leave once he was there.... 

Here, Principal Gleason and Mr. Jones encourage the Court to simply accept their version of events and conclude that the Nik Walker Ministries was sponsored by the FCA, and the FCA was allowed to hold an assembly during non-instructional time pursuant to a neutral policy in a limited public forum. Mr. Jones also states he did not require the students in his classroom to attend the revival. However, as this Court previously expressed, the Amended Complaint directly contradicts Defendants’ narrative, creating factual issues that should be explored through discovery, not resolved on a motion to dismiss.

WOWKTV reports on the decision.

Catholic Charities Is Not Exempt from Unemployment Compensation Statute

In Catholic Charities Bureau, Inc. v. State of Wisconsin Labor and Industry Review Commission, (WI App., Dec. 13, 2022), a Wisconsin state appellate court held that Catholic Charities and its sub-entities are not exempt from the Wisconsin Unemployment Compensation Act as organizations "operated primarily for religious purposes." It emphasized that the statute should be "liberally construed to effect unemployment compensation coverage for workers who are economically dependent upon others in respect to their wage-earning status." The court said that it must look to the work of Catholic Charities, not the Catholic Church itself, to determine whether there is an exemption.  Deciding that the court should look both to motives and activities, the court concluded that while Catholic Charities has a religious motivation for its work, the nature of its activities is not religious.  The court said in part:

[T]he activities of CCB and its sub-entities are the provision of charitable social services that are neither inherently or primarily religious activities. CCB and its sub-entities do not operate to inculcate the Catholic faith; they are not engaged in teaching the Catholic religion, evangelizing, or participating in religious rituals or worship services with the social service participants; they do not require their employees, participants, or board members to be of the Catholic faith; participants are not required to attend any religious training, orientation, or services; their funding comes almost entirely from government contracts or private companies, not from the Diocese of Superior; and they do not disseminate any religious material to participants. Nor do CCB and its sub-entities provide program participants with an “education in the doctrine and discipline of the church.”...

UPDATE: On Feb. 9, 2023, the original opinion was withdrawn and was replaced by this opinion on Feb. 14, 2023.

Teacher Sues Over School's Policy on Transgender Students

Suit was filed this week in an Ohio federal district court by a middle school teacher who resigned after refusing on religious grounds to comply with the school's policy regarding transgender students.  The school required teachers to address students by their preferred names and pronouns. The complaint (full text) in Geraghty v. Jackson Local School District Board of Education, (ND OH, filed 12/12/20222), alleges in part:

2. The Constitution guarantees a freedom of thought that includes a freedom to differ.... 

3. The Constitution protects this freedom to differ, in part, by prohibiting the government from adopting and enforcing a set of approved views on these matters in America’s public schools.... 

4. Defendants have abandoned this guiding light and adopted one particular view on this subject: that a person’s subjective identity determines whether a person is male or female, not a person’s sex. Compounding their unlawful adoption of an orthodoxy in this area, they have created and implemented a Policy requiring teachers, including Plaintiff Vivian Geraghty, to mouth her own support of Defendants’ views by forcing her, as a condition of keeping her job as a public school teacher, to participate in the “social transition” of children in her class.

5. Ms. Geraghty has a different view of this fundamental matter, informed by her scientific understanding and her Christian faith....

7. Because no interest justifies the state’s treatment of Ms. Geraghty—indeed, the very nature of free speech, free exercise of religion, and freedom from state-enforced orthodoxy on fundamental matters condemns the state’s attempt to purge contrary views from its schools—she brings this Complaint for injunctive, declaratory, and compensatory relief.

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

Ministerial Exception Doctrine Applies Categorically to Hostile Work Environment Claims

In Rivera v. Diocese of Venice in Florida, Inc., (SD FL., Dec. 12, 2022), a Florida federal district court dismissed under the ministerial exception doctrine a suit by the former principal of a Catholic elementary/ middle school who alleged that a racially motivated hostile work environment led him to resign his position. Plaintiff, who is black, was repeatedly the subject of racial harassment by the priest of the school's parish. The court said in part:

The principal question presented is whether the ministerial exception categorically bars hostile work environment claims under Title VII and FCRA. As further explored below, this is an issue of constitutional interpretation not yet specifically addressed by the Eleventh Circuit....

[T]he Court concludes that the ministerial exception categorically bars Plaintiff's hostile work environment claims....

To determine whether a minister's claim of hostile work environment proceeds based on the degree to which a court believes the fact-specific allegations require excessive entanglement with a church's internal governance is itself to promote and risk excessive entanglement and interference with a church's authority to supervise and manage its ministers. Put another way, the reason why a functional approach is necessary to resolve the threshold question of "minister status" is also one of the reasons why applying the ministerial exception to claims of hostile work environment is necessary to respect the First Amendment. The opposite rule would thrust courts into examining the inner workings of a church's supervision and management of its clergy—the precise harm the ministerial exception seeks to protect. Therefore, Court declines Plaintiff's "nuanced" invitation to treat "non-terminal employment claims" of hostile work environment differently than "tangible" claims of employment discrimination brought by ministers....

[S]hould the Eleventh Circuit disagree with the Court's "categorical" determination or otherwise decide that no such ruling is necessary on these facts, the Court concludes in the alternative that Plaintiff's Amended Complaint merits dismissal because it clearly contains allegations that trigger excessive entanglement into the church's internal governance and supervision of its ministers.

White House Creates Inter-Agency Group to Counter Anitsemitism

White House Press Secretary Karine Jean-Pierre yesterday announced the formation of an inter-agency anti-bias task force whose first priority is developing a national strategy to combat antisemitism.  Her Statement (full text) said in part:

The President is establishing an inter-agency group led by Domestic Policy Council staff and National Security Council staff to increase and better coordinate U.S. Government efforts to counter antisemitism, Islamophobia, and related forms of bias and discrimination within the United States. The President has tasked the inter-agency group, as its first order of business, to develop a national strategy to counter antisemitism. This strategy will raise understanding about antisemitism and the threat it poses to the Jewish community and all Americans, address antisemitic harassment and abuse both online and offline, seek to prevent antisemitic attacks and incidents, and encourage whole-of-society efforts to counter antisemitism and build a more inclusive nation.

The Hill reports on this development.

French Catholic Bishops Set Up National Canonical Penal Court

On December 5, the Conference of Bishops of France in a lengthy press release (full text in French) announced the creation of a National Canonical Penal Court.  According to National Catholic Reporter:

[The Bishops' statement] said the 20-member court, approved by the Vatican in September, would be tasked with judging "canonical offenses committed by clergy and laity" nationwide, such as acts of sacrilege, apostasy, schism, misuse of sacraments and teachings against the church's magisterium. The court aimed to "strengthen and harmonize" procedures formerly followed by diocesan and archdiocesan tribunals....

Establishment of the court, partly staffed by lay experts, was one of 45 recommendations by an Independent Commission on Sexual Abuse in the Church in its 2,500-page report released in October 2021.... 

However, while the new court would hear accusations involving adults, claims of sexual offenses by clergy against minors and canonical complaints against bishops would continue to be referred to the Vatican, the statement said.

The bishops' statement said church courts were "specific to the church's religious purposes," and complied with the country's 1905 church-state separation law.

Canadian Court Says School Demonstration of Indigenous Rituals Did Not Violate Religious Freedom

In Servatius v. Alberni School District No. 70, (BC CA, Dec. 12, 2022), the Court of Appeal for the Canadian province of British Columbia held that a public elementary school did not violate the religious freedom rights of an evangelical Protestant mother when her daughters' classes were made to view a demonstration of indigenous cultural practices. A Nuu-chah-nulth elder demonstrated a smudging ceremony and at a later time a hoop dancer performed at a school assembly and said a prayer during his performance. The appeals court agreed with the trial judge's conclusion that there was no violation of the Charter of Rights and Freedoms because the children merely viewed, and did not participate in the smudging or the prayer. The court said: "religious freedom is not compromised when students are taught about other beliefs." CTV News reports on the decision.

Texas Sues HHS To Invalidate Rule on LGBTQ Discrimination by Adoption Agencies

Suit was filed yesterday in a Texas federal district court challenging a rule adopted by the Department of Health and Human Services that prohibits adoption and foster care agencies receiving federal funds from discriminating on the basis of sexual orientation or gender identity.  It also requires them to recognize same-sex marriages.  In 2019, amidst other litigation, the government previously issued a Notice of Nonenforcement of this rule. (See prior posting.) However, that Notice is being challenged in other litigation.  The complaint (full text) in State of Texas v. Becerra, (SD TX, filed 12/12/22), contends that the rule by its terms does not apply to child placing agencies that contract with state agencies that initially receive federal grants, and that the rule, for numerous reasons, is an invalid exercise of agency authority. Texas Attorney General Ken Paxton issued a press release announcing the filing of the lawsuit.

Recent Articles of Intrerest

 From SSRN:

• David Grenardo, How A Person of Faith Can Address Imposter Syndrome in Law School, (Notre Dame Journal of Law, Ethics and Public Policy, Considerations, Forthcoming 2023).
• Hilary Hogan, The Right to Life and The State’s Investigative Obligations: Fox v Minister for Justice, (November 15, 2022).
• Andrew Coan, What Is the Matter with Dobbs?, (Arizona Legal Studies Discussion Paper No. 22-24 (2022)).
• I. Glenn Cohen, Reproductive Technologies and Embryo Destruction After Dobbs, (in Roe v. Dobbs: The Past, Present and Future of a Constitutional Right of Abortion, (Geoffrey R. Stone and Lee Bolinger eds., 2023, Forthcoming)).
• Gabrielle Dohmen, Academic Freedom and Misgendered Honorifics in the Classroom, (89 U. Chi. L. Rev. 1557 (2022)).
• Liam Concannon, Gay Men as Adoptive Fathers, Hegemonic Heteronormativity, and the Advent of the Queer Family, (October 24, 2022).

HHS Must Assure Parental Consent in Grantee Programs That Distribute Contraceptives to Minors

In Deanda v. Becerra, (ND TX, Dec, 8, 20222), a Texas federal district court held that a Texas statute which protects parental rights to consent to a minor's medical care applies to all Title X grantees in Texas.  Title X of the Public Health Service Act provides for grants to entities offering family planning services.  Plaintiff, a Christian raising his daughters in accordance with Christian teachings that require unmarried children to refrain from sexual intercourse until marriage, contends that the Department of Health and Human Services is not monitoring grantees to ensure that they obtain parental consent to providing contraceptives to minors. The court rejected defendant's claim that Title X pre-empts Texas law on parental rights. It went on to hold that parents have a federal constitutional right to control the medical care of their minor children, and this includes the right to consent to contraception.  The court said in part:

Contraception is a serious matter - both medically and for parents' rights to control the upbringing and education of their children. Several popular methods of birth control carry serious side effects. The courts that have denied parental consent rights apparently presume contraceptive drugs are "no big deal." ... 

[O]mitting parental consent gives insufficient weight to the undesirability of teenage promiscuity.

9th Circuit: Native American Student's Suit Over Wearing Eagle Feather at Graduation Should Move Ahead

 In Waln v. Dysart School District, (9th Cir., Dec. 9, 2022), the U.S. 9th Circuit Court of Appeals held that a free speech and free exercise suit against an Arizona school district should not have been dismissed by the district court.  The school district refused to allow a Native American student to wear an eagle feather in her cap during graduation ceremonies. Wearing the eagle feather, which had been blessed and is considered a sacred object, was a religious practice. Sustaining plaintiff's Free Exercise claim, a majority of the court said in part:

Plaintiff has carried her burden, at the motion-to-dismiss stage, to show that the District’s policy [prohibiting decoration of graduation caps] is not generally applicable because it was enforced in a selective manner.

The court also held that plaintiff should be able to move ahead on her free speech claim, saying in part:

Here, the complaint plausibly alleges that the District enforced its facially neutral policy in a selective way.

The majority rejected the school district's contention that it had a compelling interest in complying with the Establishment Clause. 

Judge Baker filed an opinion dissenting in part, contending that plaintiff had not adequately alleged that the school district selectively enforced its policy against decorating graduation caps. However, he believed that the district court erred in not permitting plaintiff to amend her complaint to provide more factual content.

Human Rights Day/ Week

Yesterday was Human Rights Day and this week is Human Rights Week.  On Friday, President Biden issued a Presidential Proclamation (full text) recognizing the dates. December 10 is the anniversary of the U.N.'s adoption of the Universal Declaration of Human Rights. The Presidential Proclamation reads in part:

Around the world — from China to Burma, Afghanistan to Iran, Ethiopia to Ukraine, and beyond — courageous people are standing up to abuses of power, staying strong amid threats to their lives, and speaking out against violations of their fundamental freedoms. 

The United States stands fully with these brave women and men fighting for their basic human rights in the face of oppression and injustice — and we always will.  That is why we moved to rejoin the United Nations Human Rights Council in 2021 and reassert our moral leadership on the global stage.  It is why my Administration is amplifying the voices of religious, racial, and ethnic minorities; women and girls; LGBTQI+ communities; persons with disabilities; and pro-democracy activists and defenders, who are too often targeted by violence or denied equal protection under the law.

8th Circuit Affirms RFRA Rights of Catholic Health Care Organizations to Refuse Gender Transition Services

In Religious Sisters of Mercy v. Becerra, (8th Cir., Dec. 9, 2022), the U.S. 8th Circuit Court of Appeals affirmed a district court decision that enjoined the federal government from requiring various Catholic health care organizations to perform or provide insurance coverage for gender transition procedures. The district court concluded that plaintiffs' rights under the Religious Freedom Restoration Act were violated by the requirements imposed by the government's interpretation of the Affordable Care Act and Title VII.  On appeal, the government raised only jurisdictional challenges-- standing, ripeness and lack of irreparable harm.  The 8th Circuit rejected the government's challenges, except as to standing of one organizational plaintiff.

4th Annual Religious Freedom Index Released

Becket Fund for Religious Liberty this week released its fourth annual Religious Freedom Index. The 99-page Report (full text) (summary) is described in its Executive Summary:

The Index is designed to give a holistic view of American attitudes toward religious freedom by surveying a nationally representative sample of approximately 1,000 American adults each year. The survey consists of 21 annually repeating questions that cover a broad range of topics, from the rights of religious people to practice their respective faiths to the role of government in protecting and promoting religious beliefs. The responses to these questions break down into six dimensions: 1) Religious Pluralism, 2) Religion and Policy, 3) Religious Sharing, 4) Religion in Society, 5) Church and State, and 6) Religion in Action.

According to Becket's press release:

When asked about religious pluralism, more respondents than ever said that they think people should be free to choose a religion, to worship without fear of persecution, and to practice religion in daily life. Since 2020, this dimension of religious freedom increased by over 10 points, with over 90 percent of respondents completely or mostly agreeing to protect these freedoms.  

Americans’ support for religious minorities was also high. New questions on the Index asked respondents about protections for Native American sacred sites on federal land. Overall, 89 percent of respondents supported these protections, with strong support for these protections (57 percent) dwarfing strong opposition (three percent) by nearly 20 to 1.

European Commission Appoints Special Envoy for Promoting Religious Freedom

The European Commission announced this week that it has appointed Belgian diplomat Frans van Daele as Special Envoy for the Promotion of Freedom of Religion or Belief Outside the EU. (EC News Release [scroll down to "Appointments"]). The announcement describes the Special Envoy's duties:

The Special Envoy will establish a dialogue with national authorities and other stakeholders in countries suffering from discrimination on the grounds of religion or belief. He will support for intercultural and interreligious dialogue processes, including encouraging dialogue between representatives of different faiths and the setting up of joint initiatives. He will put in place measures to target de-radicalisation and prevention of extremism on grounds of religion or belief in third countries. In cooperation with authorities from third countries, he will promote religious diversity and tolerance within educational programmes and curricula. The Special Envoy will coordinate his activities closely with the EU Special Representative on Human Rights.

Among his prior diplomatic position, van Daele served as Belgian Ambassador to the United States from 2002 to 2006. ADF International issued a press release commenting on the appointment.

Congress Gives Final Passage To Respect For Marriage Act

 Yesterday the U.S. House of Representatives gave final passage to HR 8404 the Respect for Marriage Act (full text). By a vote of 258- 169, the House accepted the amendments added to the original bill by the Senate. The bill now goes to President Biden for his signature. Biden issued a statement yesterday praising Congress' passage of the bill. The bill assures federal recognition of same-sex and interracial marriages between two individuals and requires states to recognize same-sex and interracial marriages from other states. The bill goes on to provide:

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....

 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.

Fox4 reports on contents of the bill.

UPDATE: On Sept. 13, President Biden signed the bill into law. (White House press release.)

House Hearing Explores Lobbying of Supreme Court by Religious Conservatives

Yesterday, the House Judiciary Committee held a hearing titled Undue Influence: Operation Higher Court and Politicking at SCOTUS. One of the witnesses was Rev. Robert Schenck who, in his written testimony, expanded on his previously published interview with the New York Times.  Schenck recounts his organization's attempts to gain access to Supreme Court Justices through donors to the Supreme Court Historical Society. He said in part:

My purpose was to develop relationships with the Justices who held positions sympathetic to religious conservatives' general concerns. In this way, I could gain insights into their thinking regarding the questions and cases that come before them and, perhaps, read their disposition toward the topics of most significant interest to me and my cohorts. Over time, I also thought my associates and supporters might be able to shore up the resolve of the conservative members. Our concern was for cases we adjudged beneficial to the country's culture, such as those restricting or banning abortion, euthanasia and assisted suicide, as well as same-sex relationships, especially marriage, and those expanding religious liberty, predominantly Christian practice, and public displays of Christian belief. The Historical Society was also a place where my cohorts and I could learn more about the customs, traditions, mores, and protocols of the Court, easing our entry into their social circles.

His testimony went on to describe his learning in advance about the outcome of the Hobby Lobby case. 

Another witness before the Committee, Mark R. Paoletta, in his written testimony sharply criticized Schenck's account, saying that Schenck has "built his career on deception and deceit."  NPR reports on the hearing.

UK Supreme Court Upholds Northern Ireland Abortion Clinic Buffer Zone Law

In Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill, (UK SC, Dec. 7, 2022), the United Kingdom Supreme Court held that Northern Ireland legislation creating a safe access zone of 100 meters from abortion clinic entrances that is off limits to abortion protesters does not violate the European Convention on Human Rights. The Court said in part:

156. The right of women in Northern Ireland to access abortion services has now been established in law through the processes of democracy. That legal right should not be obstructed or impaired by the accommodation of claims by opponents of the legislation based, some might think ironically, on the liberal values protected by the Convention. A legal system which enabled those who had lost the political debate to undermine the legislation permitting abortion, by relying on freedom of conscience, freedom of expression and freedom of assembly, would in practice align the law with the values of the opponents of reform and deprive women of the protection of rights which have been legislatively enacted.

A press release by the Court summarizes the 56-page opinion.  Catholic World Report discusses the decision.

Jewish Congregation Sues for Return of Deeds To 5000 Burial Plots

 An unusual suit was filed this week in a New York state trial court by a Bukharian Jewish religious organization which is seeking to recover nearly 5,000 burial plot deeds that the organization says belong to it. The complaint (full text) in Bukharian Jewish Community Center v. Nektalova, (NY County Sup. Ct., filed 12/6/2022) alleges that United Bukharian Congregation holds cemetery documents in trust for members of the Bukharian Jewish community in New York. One of its members, 92-year old Roman Nektalov, was in charge of providing the relevant deeds to cemeteries and families when funerals of members were being arranged.  During COVID, Nektalov took the deeds to his home so he could distribute them from there. A domestic dispute arose between Nektalov and his wife. His wife obtained a protective order which prevents Nektalov from accessing the deeds in his home. She later filed for divorce and refuses to turn the deeds over to the religious organizations, claiming that they are marital property. The Jewish organizations ask the court to hold that they are the rightful owners of the deeds, and to order them turned over to them or to a receiver. AMNY reports on the lawsuit. [Names in post corrected]

Oklahoma Attorney General's Opinion Says Ban on Sectarian Charter Schools Is Unconstitutional

 In Attorney General Opinion 2022-7, (Dec. 1, 2022), Oklahoma Attorney General John M. O'Connor concluded that the ban in Oklahoma law on publicly funded charter schools being sectarian or religiously affiliated is unconstitutional. He said in part:

You ask what effect, if any, the Trinity Lutheran, Espinoza, and Carson decisions have on the validity of the non-sectarian restrictions found in Section 3-136(A)(2) of the Oklahoma Charter School Act. That passage states as follows:

A charter school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations. A sponsor may not authorize a charter school or program that is affiliated with a nonpublic sectarian school or religious institution....

We believe, based on the First Amendment and the Trinity Lutheran, Espinoza, and Carson line of decisions, that the U.S. Supreme Court would likely hold these restrictions unconstitutional....

It is important to emphasize, however, that to the extent that neutral and generally applicable limitations may be found elsewhere in the Act, those limitations can likely be applied to religious charter schools, so long as they are truly neutral and applied equally to all charter schools alike.... The constitutional problem is singling out religion, not necessarily the provisions found elsewhere regulating various aspects of charter schools.

The Oklahoman reports on the Attorney General's Opinion.

North Carolina Methodist Churches Sue to Disaffiliate from Parent Body

Suit was filed last month in a North Carolina state trial court by 38 United Methodist Churches in North Carolina which are seeking to disaffiliate from the United Methodist Church and retain their buildings and property.  The complaint (full text) in Mount Carmel United Methodist Church v. Western North Carolina Conference of the United Methodist Church, (NC Super. Ct., filed 11/10/2022), alleges in part:

Plaintiff Churches wish to disaffiliate from the United Methodist Church ("UMC") to pursue their deeply held religious beliefs. Defendants want to force Plaintiff Churches to stay affiliated with the UMC, and violate those beliefs by holding their church buildings and property hostage. Defendants claim Plaintiffs' Churches property is encumbered by an irrevocable trust for the benefit of the UMC and the only way for Plaintiff Churches to disaffiliate without surrendering the buildings and property that are central to their congregations is by the permission of the UMC and payment of a financial ransom.

Plaintiffs ask the court to declare that the UMC trust is terminated or is revocable and to quiet title to the Churches properties. Religion News Service reports on the lawsuit, saying in part:

Legal action — or the threat of legal action — represents a new strategy on behalf of churches that want to leave the 6.4 million-member United Methodist Church. The denomination is undergoing a wholesale splinter after decades of rancorous debate over the ordination and marriage of LGBTQ members.

The denomination allows churches to leave through the end of 2023. The exit plan allows them to take their properties with them after paying two years of apportionments and pension liabilities.

State Department Updates List of Countries Violating Religious Freedom; USCIRF Reacts

Last week (Dec. 2) the U.S. State Department, as required by the International Religious Freedom Act, announced its annual list of countries and entities that violate or tolerate severe violations of religious freedom.  In a press statement, Secretary Blinken said in part:

Today, I am announcing designations against Burma, the People’s Republic of China, Cuba, Eritrea, Iran, Nicaragua, the DPRK, Pakistan, Russia, Saudi Arabia, Tajikistan, and Turkmenistan as Countries of Particular Concern under the International Religious Freedom Act of 1998 for having engaged in or tolerated particularly severe violations of religious freedom.  I am also placing Algeria, the Central African Republic, Comoros, and Vietnam on the Special Watch List for engaging in or tolerating severe violations of religious freedom.  Finally, I am designating al-Shabab, Boko Haram, Hayat Tahrir al-Sham, the Houthis, ISIS-Greater Sahara, ISIS-West Africa, Jama’at Nusrat al-Islam wal-Muslimin, the Taliban, and the Wagner Group based on its actions in the Central African Republic as Entities of Particular Concern.

Responding to the State Department's action, the U.S. Commission on International Religious Freedom issued a press release stating in part:

The U.S. Commission on International Religious Freedom (USCIRF) finds it inexplicable that the U.S. Department of State did not include Nigeria or India in its latest designations of “Countries of Particular Concern”....

Religion News Service has posted an opinion piece on the State Department's actions by a former State Department adviser.

Catholic Parish Sues Michigan Over Expansion of Its Civil Rights Act

Suit was filed this week in a Michigan federal district court by a Catholic parish which operates an elementary school claiming that the Michigan Supreme Court's interpretation of the state's anti-discrimination law violates the parish's First Amendment rights.  The complaint (full text) in St. Joseph Parish St. Johns v. Nessel, (WD MI, filed 12/5/2022), alleges in part:

5. In a series of actions culminating in a Michigan Supreme Court decision from July 2022, the Michigan Attorney General, the Michigan Department of Civil Rights, and the Michigan Civil Rights Commission ... reinterpreted the Elliott-Larsen Civil Rights Act (“ELCRA”) such that provisions which previously prohibited conduct based only on biological sex now also apply to distinctions made based on sexual orientation and gender identity....

10. As a result, Michigan’s new understanding of “sex” discrimination deems it unlawful for St. Joseph’s to follow the 2,000-year-old teachings of the Catholic Church, including its teaching that marriage is a lifelong commitment between one man and one woman, that sexual relations are limited to marriage, and that human beings are created as either male or female....

11. Michigan’s reinterpretation poses an imminent threat to St. Joseph. St. Joseph needs to hire new employees and to publicize its job openings. St. Joseph’s advertisements would note, as they have in the past, that applicants must be “practicing Catholic[s] with the ability to infuse Catholic faith and teaching throughout the curriculum.”... 

12. St. Joseph is also reviewing applications for new families seeking to send their children to its school. And families at St. Joseph Catholic School enter a “Family – School Agreement.” This agreement requires, among other things, that parents and students agree “to live their lives in a way that supports, rather than opposes, the mission of our school and our faith beliefs.”

13. Also at stake is St. Joseph’s ability to rent its facilities—like its gymnasium and soccer fields—and whether it can carry out its parish activities open to all, like attending Mass, without being held liable as a public accommodation....

15. St. Joseph’s religious decisions regarding how to advance its mission and ministry are protected by the First and Fourteenth Amendments to the U.S. Constitution. Michigan cannot force the Catholic Church to compromise its religious character simply as a function of its doors being open to all.

Becket has a case page with more details on the case.

Street Preacher Loses His Free Speech Lawsuit

In Sessler v. City of Davenport, (SD IA, Nov. 22, 2022), an Iowa federal district court dismissed a suit for damages and injunctive relief brought by a street preacher who claimed that his free speech rights were violated when he and others with him were required to move from the location at which they were preaching during the city's Street Fest and continue their preaching from another location. According to the court:

Sessler and his group carried signs on extendable poles with messages including: "Hell is enlarged for adulterers . . . homosexuals . . . abortionists" and "Warning! If you are involved in sex out of marriage[,] homosexuality[,] drunkenness[,] night clubbing . . . you are destined for a burning hell[.]" 

The court concluded that Street Fest was a limited public forum, and plaintiff's removal was reasonable and viewpoint neutral.  It went on to say in part:

Sessler has failed to carry his burden of showing Behning, Smith, and Alcala violated a clearly established right, even if Street Fest is considered a traditional public forum. The case law discussed by Sessler does not show a member of the public has a right to continue preaching at a permitted event open to the public after event organizers requested his removal due to complaints that his preaching was driving customers away from fee-paying vendors. Rather, the case law on point suggests a reasonable officer could have concluded Sessler had no constitutional right to continue preaching within the boundaries of Street Fest following such complaints, as long as he was permitted to continue preaching across the street from an entrance to Street Fest. The Officers violated no clearly established right, so they are entitled to qualified immunity from Sessler's claims against them.

New Zealand Court OK's Hate Speech Law That Does Not Cover LGBTQ Victims

In Hoban v. Attorney General, (NZ HC, Dec. 5, 2022), a New Zealand High Court, reviewing a decision of the Human Rights Review Tribunal, held that New Zealand's hate speech law (Human Rights Act Sec. 61) that covers incitement of racial disharmony but not hate speech aimed at sexual orientation does not violate the Bill of Rights Act. The court held that while the hate speech provisions of the Human Rights Act have a discriminatory effect on victims of hate speech based on sexual orientation, the discriminatory effect is permitted by Sec. 5 of the Bill of Rights Act that allows "demonstrably justified" limits. The court said in part:

We consider it significant that there is no human rights obligation, in either domestic or international law, to make hate speech on the basis of sexual orientation unlawful. By contrast there is such an obligation in relation to racial hate speech, both in ICERD [International Convention on the Elimination of All Forms of Racial Discrimination] and the ICCPR [International Convention on Civil and Political Rights]....

Section 61 only has apparently discriminatory effect because it is a targeted remedial measure. We consider that the existence of the international obligations in ICERD and the ICCPR in of themselves provide the s 5 justification for s 61 of the HRA being in the targeted terms that it is. The New Zealand legislation is limited, but the limit corresponds to the international obligations.

Stuff discussed the case when it was argued before the court. [Thanks to Jane Norton for the lead.]

En Banc rehearing Denied in Challenge to Courtroom Invocations

In Freedom From Religion Foundation, Inc. v. Mack, (5th Cir., Dec. 2, 2022), the U.S. 5th Circuit Court of Appeals by a vote of 12-3 denied an en banc rehearing in a case decided by a 3-judge panel in September. (See prior posting.) The panel held that a program devised by a Texas Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain does not violate the Establishment Clause.  Judge Higginson, joined by Judge Graves, filed an opinion dissenting from the denial of an en banc rehearing. They said in part:

None of the history cited by our court contemplates a judicial command “to stand and bow” for prayer, much less under threat of retaliation. At best, our court digs up “scattered evidence” that some nineteenth- and twentieth-century courts started with a prayer. Along with other evidence that prayers have been said and God invoked in courtrooms, our court thinks this is enough to prove that “courtroom prayer is consistent with a broader tradition of public, government-sponsored prayer.” I agree with the dissenting panel opinion that this history is too thin to justify that conclusion, but I would add that our court’s answer is pitched at the wrong level of generality....  [T]he question is whether “history shows that the specific practice is permitted,” not whether a general practice is permitted.

New Resource on Abortion Litigation

The Brennan Center for Justice at NYU Law and the Center for Reproductive Rights today announced its State Court Abortion Litigation Tracker, a website that tracks pending and completed state court litigation against abortion bans that were, or would have been, unconstitutional under Roe. v. Wade. The site has been added to the Religion Clause sidebar.  Information on the site will be updated monthly.  This site supplements the Center's Abortion Laws By State website that tracks the current status of abortion laws in each state.

Recent Articles of Interest

From SSRN:

• Aaron Tang, Who's Afraid of Carson v. Makin?,  (132 Yale L. J. Forum 504 (2022)).
• Nicolas Graber-Mitchell, All Rise for God: Toleration, Secularism, and the Role of Religion in Legal Adjudication, (April 14, 2022).
• Reva B. Siegel & Linda Greenhouse, Abortion: Rights in Motion - Global Constitutionalism 2022, (Yale Law School, Public Law Research Paper Forthcoming).
• Melvin Otey, Jesus’s Objections During His Preliminary Examination and Modern Notions of Due Process, (Regent University Law Review, Vol. 35, No. 91, 2022).
• Adam MacLeod, The First Amendment, Discrimination, and Public Accommodations at Common Law, (November 9, 2022).
• Richard M. Re, Should Gradualism Have Prevailed in Dobbs?, (November 16, 2022).
• Phil Lord, Trumping Dobbs, (October 26, 2022).

From elsewhere:

• Steven H. Sholk, A Guide to the Substantiation Rules for Deductible Charitable Contributions, (Journal of Taxation, Dec. 2022).

Supreme Court Hears Arguments Today on Wedding Website Designer Who Opposes Same-Sex Marriage

Today the U.S. Supreme Court will hear oral arguments in 303 Creative v. Elenis. 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. The Court granted certiorari only on the question of "Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment." Over 75 amicus briefs have been filed in the case.  The SCOTUSblog case page has links to them and to other filings in the case. The arguments will be broadcast live beginning at 10:00 AM at this link. SCOTUSblog has a preview of the arguments. I will update this post with links to the recording and transcript of the arguments when they become available later today.

UPDATE: Here are links to the transcript and audio of this morning's oral arguments.

Indiana Court Enjoins Abortion Restrictions as Violating State's RFRA

In Anonymous Plaintiff 1 v. Individual Members of the Medical Licensing Board of Indiana, (IN Super. Ct., Dec. 2, 2022), an Indiana state trial court preliminarily enjoined the state from enforcing Indiana's law restricting abortions against plaintiffs whose religious beliefs permit or require abortions in situations not allowed under Indiana law.  Plaintiffs were Jewish and Muslim, and one plaintiff of no specific denomination. The court, invoking Indiana's Religious Freedom Restoration Act, said in part:

26. This Court finds that the Plaintiffs practices regarding abortion are religious in nature: they have established that, under circumstances that would be prohibited by S.E.A. 1, their religious beliefs would compel them to have abortions....

43. The undisputed evidence establishes that the Plaintiffs do not share the State’s belief that life begins at fertilization or that abortion constitutes the intentional taking of a human life. To the contrary, they have different religious beliefs about when life begins, and they believe that under certain circumstances not permitted by S.E.A. 1, they would be required to receive abortions. Under the law, the Court finds these are sincere religious beliefs.

44. The State has not asserted a compelling interest in refusing to provide an exception to the Plaintiffs if the law were otherwise enforceable. Indiana has no interest in violating the sincere religious beliefs and exercise of the Plaintiffs....

49. The Plaintiffs argue that S.E.A. 1 is not narrowly tailored and is underinclusive, in that it provides exceptions for some abortions—though not religious exceptions—in circumstances that directly contravene the State’s purported interest. 

50. The State argues that abortion, regardless of gestational age of the zygote, embryo, or fetus, is the killing of an innocent human being, and its interest is in preventing that killing....

51. However, the statute explicitly allows abortions in circumstances that the State acknowledges constitute the “killing” of an “innocent human being”: for example, where the pregnancy is the result of rape or incest and where the fetus is viable but will not live beyond three months after birth.

A different state trial court has previously enjoined enforcement of the Act on state constitutional grounds. (See prior posting.)

Indianapolis Star reports on the decision. [Thanks to Daniel Conkle via Religionlaw for the lead.]

Suit By Law Prof and Internet Site Challenges NY Statute on Online Hate Speech

 In May, the New York legislature enacted A7685-A requiring social media networks to provide a means for its users to report postings which vilify, humiliate or incite violence group on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.  They must also have a policy on responding to and addressing such postings.  Yesterday-- two days before the law is to go into effect-- suit was filed in a New York federal district court by law professor and blogger Eugene Volokh and the social media platform Rumble challenging the law on free speech as well as overbreadth and vagueness grounds. The complaint (full text) in Volokh v. James, (SD NY, filed 12/1/2022), alleges in part:

New York cannot justify such a sweeping regulation of protected speech. The Online Hate Speech Law violates the First Amendment because it burdens the publication of speech based on its viewpoint, unconstitutionally compels speech, and is overbroad. It is also vague in violation of the Fourteenth Amendment....and preempted by Section 230 of the Communications Decency Act. Given well-settled Supreme Court precedent, the New York’s law must be enjoined and struck down.

Foundation for Individual Rights and Expression issued a press release announcing the filing of the lawsuit.

Establishment Clause Challenge to Pending Abortion and LGBTQ Laws Is Dismissed

 In Pickup v. Biden, (D DC, Nov. 30, 2022), plaintiffs-- including four pastors-- asked the D.C. federal district court to declare two bills pending in Congress unconstitutional and enjoin their passage. At issue are the Women's Health Protection Act which assures the right to abortion and the Equality Act which would add sexual orientation and gender identity to the federal Civil Rights Act. Plaintiffs focused primarily on an Establishment Clause challenge. The court described plaintiffs' claims, saying in part:

In their view, the Supreme Court’s decisions in Roe v. Wade and Planned Parenthood v. Casey undermine the Establishment Clause by promoting the religion of “secular humanism.”...  According to Plaintiffs, secular humanism includes a “pro-abortion” denomination and an “LGBTQ” denomination.... Plaintiffs thus argue that the Government violates the Establishment Clause if it promotes abortion or LGBTQ ideology.

The court held that the Constitution's Speech or Debate Clause bars Plaintiffs’ claims against the congressional Defendants, that it lacks jurisdiction to enjoin a President from performing his official duties, and that plaintiffs lack standing.

Court Rejects Religious Challenges to COVID Mask Requirements

 In Joseph v. Becerra, (WD WI, Nov. 29, 2022), a Wisconsin federal district court rejected a pro se plaintiff's claims that VA and Postal Service COVID masking requirements violated his free exercise and Establishment Clause rights as well as various other rights. The court said in part:

Joseph refuses to wear a mask, which he views as a medical device and religious symbol. A Christian, Joseph claims to practice his faith in part by “taking a stance against what he sees and understands to be evil or unlawful,” such as the masking requirements.... Specifically, Joseph alleges that the masking requirements violate several of the tenets of his faith and promotes “Collectivism” over his individual rights. By promulgating a masking policy, Joseph further alleges that the federal government is seeking to establish “a nameless and covert religion/religious order” that “is a type of scientism ... discriminatory and divisive in nature and in practice.”...

[P]laintiff’s Establishment Clause claim is not only based on a Bivens claim not yet recognized by the Supreme Court, but also on the “faulty premise” that “scienticsm” is a religion. .... Admittedly, the governing case law does not precisely define the contours of what constitutes “religion,” but “courts are well-equipped to weed out spurious Establishment Clause ‘religions’ on grounds of common sense.”...

[E]ven if wearing a mask has substantially impaired plaintiff’s ability to exercise his faith while receiving in-person medical treatment, working, traveling in public spaces, or attending public events, rules that have only an “incidental effect of burdening a religious practice” will pass muster under the Free Exercise Clause provided they are applied neutrally and generally applicable.

Police Officer Sues Over Denial of COVID Vaccine Religious Exemption

This week, a former Boston police officer who is a Jehovah's Witness filed suit in a Massachusetts state trial court seeking $2 million in damages for the actions of the Boston Police Department in denying his request for a religious exemption from the Department's COVID vaccine mandate. He was placed on administrative leave and subsequently terminated. The complaint (full text) in Colon v. City of Boston, (MA Super. Ct., filed 11/28/2022), also alleges that he was ridiculed because of his religious beliefs. Boston.com reports on the lawsuit.

6th Circuit Affirms Preliminary Injunction Protecting Air Force Personnel Who Have Religious Objections to COVID Vaccine

 In Doster v. Kendall, (6th Cir., Nov. 29, 2022), the U.S. 6th Circuit Court of Appeals affirmed a district court's grant of a class-wide preliminary injunction barring the Air Force from disciplining Air Force personnel who have sought religious exemptions from the military's COVID vaccine mandate. The injunction however did not interfere with the Air Force’s operational decisions over the Plaintiffs’ duties. The 6th Circuit concluded that plaintiffs' RFRA claim was likely to succeed on the merits, saying in part:

Some 10,000 members with a wide array of duties have requested religious exemptions from this mandate. The Air Force has granted only about 135 of these requests.... Yet it has granted thousands of other exemptions for medical reasons (such as a pregnancy or allergy) or administrative reasons (such as a looming retirement)....

Under RFRA, the Air Force wrongly relied on its “broadly formulated” reasons for the vaccine mandate to deny specific exemptions to the Plaintiffs, especially since it has granted secular exemptions to their colleagues.... The Air Force’s treatment of their exemption requests also reveals common questions for the class: Does the Air Force have a uniform policy of relying on its generalized interests in the vaccine mandate to deny religious exemptions regardless of a service member’s individual circumstances? And does it have a discriminatory policy of broadly denying religious exemptions but broadly granting secular ones? A district court can answer these questions in a “yes” or “no” fashion for the entire class.....

In the abstract, the Air Force may well have a compelling interest in requiring its 501,000 members to get vaccinated. It has also largely achieved this general interest, as evidenced by its ability to vaccinate over 97% of its force.... Under RFRA, however, the Air Force must show that it has a compelling interest in refusing a “specific” exemption to, say, Lieutenant Doster or Airman Colantonio.... To succeed ..., the Air Force must identify the duties of each Plaintiff and offer evidence as to why it has a compelling interest in forcing someone with those duties to take the vaccine or face a sanction....

If the Air Force can permanently retain those who cannot deploy because of their religious objections to a war, it must explain why it cannot permanently retain those who cannot deploy because of their religious objections to a vaccine.

(See prior related posting.) Courthouse News Service reports on the decision.

7th Circuit: Law on Disposal of Fetal Remains Does Not Violate 1st Amendment

In Doe v. Rokita, (7th Cir., Nov. 28, 2022), the U.S. 7th Circuit Court of Appeals rejected 1st Amendment challenges to an Indiana statute that requires abortion providers to dispose of fetal remains either by burial or by cremation. The suit was brought both by two women who raise free exercise claims and by two physicians who oppose the requirement that they inform patients of the law's provisions. The court said in part:

[N]either of the two plaintiffs who has had an abortion contends that a third party’s cremation or burial of fetal remains would cause her to violate any religious principle indirectly. What these two plaintiffs contend is that cremation or burial implies a view—the personhood of an unborn fetus—that they do not hold. They maintain that only human beings are cremated or buried. This is questionable. Dogs, cats, and other pets may be cremated or buried, sometimes as a result of legal requirements not to put animals’ bodies in the garbage,,,,. Indiana’s statute about fetal remains therefore need not imply anything about the appropriate characterization of a fetus. At all events, a moral objection to one potential implication of the way medical providers handle fetal remains is some distance from a contention that the state compels any woman to violate her own religious tenets....

As for the requirement that physicians and other providers tell patients about the statutory options: no one contends that the required notice is false or misleading....

The norm that units of government may require physicians (and other professionals) to provide accurate information to their clients long predates Casey and has not been disturbed since...

State Religious Discrimination Claims Against Airline Union Are Pre-empted By Federal Law

In Brown v. Alaska Airlines, Inc., (WD WA, Nov. 23, 2022), a Washington federal district court dismissed state-law religious discrimination claims brought against the flight attendants' union by two of its members.  Alaska Airlines fired plaintiffs because they posted comments on the company's internal intranet opposing the Airline's support for a federal statute that would add sexual orientation and gender identity to federal anti-discrimination laws. Plaintiffs claimed their comments were grounded in their religious beliefs. The Union unsuccessfully represented the flight attendants at a hearing appealing their termination.  Plaintiffs then sued claiming not only that Alaska Airlines discriminated against them because of their Christian faith, but that the Union did not defend them as vigorously as it defends other flight attendants because of the flight attendants' religious beliefs. The court dismissed the flight attendants' claims against the Union that were brought under Washington and Oregon anti-discrimination laws.  It concluded that that the "duty of fair representation" stemming from provisions of the federal Railway Labor Act pre-empts claims brought under state anti-discrimination laws where the charge is that a union did not adequately represent an employee in the grievance process.

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.