Court Upholds Conversion Therapy Ban

In Chiles v. Salazar, (D CO, Dec. 19, 2022), a Colorado federal district court rejected constitutional challenges to Colorado's ban on mental health professionals engaging in conversion therapy for minors who identify as gay, lesbian, bisexual, transgender, or gender non-conforming. In a suit brought by a licensed counselor, the court found no violation of plaintiff's free speech rights because the Minor Therapy Conversion Law regulates professional conduct rather than speech. Any speech that is affected is incidental to the professional conduct. The court also found no violation of plaintiff's free exercise rights, saying in part:

According to Ms. Chiles, the Minor Therapy Conversion Law is not neutral because it was “well-known” at the time the Colorado General Assembly enacted the Minor Therapy Conversion Law that conversion therapy was primarily sought for religious reasons.... Therefore, Ms. Chiles’ argument goes, the Minor Therapy Conversion Law impermissibly burdens practitioners who hold particular religious beliefs.... The Court disagrees. The Minor Therapy Conversion Law does not “restrict [therapeutic] practices because of their religious nature.”... [T]he Minor Therapy Conversion Law targets specific “modes of therapy” due to their harmful nature— regardless of the practitioner’s personal religious beliefs or affiliations.... [T]he Minor Therapy Conversion law targets these therapeutic modalities because conversion therapy is ineffective and has the potential to “increase [minors’] isolation, self-hatred, internalized stigma, depression, anxiety, and suicidality”....

Some Charges Against Tree of Life Synagogue Shooter Are Dismissed

United States v. Bowers, (WD PA, Dec. 15, 2022), involves the prosecution of the defendant who is charged with killing 11 people in 2018 at the Tree of Life Synagogue in Pittsburgh. He is charged under a 63 count Superseding Indictment. 25 of those charges allege discharge of a firearm during a crime of violence.  In this decision, the court dismissed charges of violating 18 USC §924(c)-- use of a firearm in a crime of violence-- to the extent that the charges rely on 18 USC §249(a)(1) as being a crime of violence. As described in by the court:

Section 249(a)(1) applies to anyone who “willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person . . . .”...

Relying on Third Circuit precedent, the court concluded that it is possible to "willfully cause bodily injury" without the use of force, for example, deliberate failure to provide food or medical care. The court concluded:

Because Section 249(a)(1) does not require the government to prove, in every case, “the use, attempted use, or threatened use of physical force against the person or property of another,” it does not qualify as a “crime of violence.”

However, to the extent that the 25 charges of violating 18 USC §924(c) rely on a violation of 18 USC Section 247(a)(2)-- willful obstruction, by force or threat of force, of individuals in the enjoyment of their free exercise of religious beliefs-- the charges were not dismissed.  Section 247(a)(2), the court held, is a crime of violence.

European Court: Bulgaria Violated Rights of Evangelical Churches by Warnings Circulated to Schools

In Tonchev v. Bulgaria, (ECHR, Dec. 13, 2022) (full text of decision in French), the European Court of Human Rights in a Chamber Judgment held that municipal officials in Bulgaria violated Article 9 (right to freedom of thought, conscience and religion) of the European Convention on Human Rights when they circulated materials to schools containing hostile information about Christian evangelical churches.  According to the English language press release from the Court on the case:

The Court pointed out that Article 9 of the Convention did not prohibit the public authorities from making critical statements about representatives or members of religious communities. However, in order to be compatible with the Convention, such statements had to be supported by evidence of specific acts liable to pose a threat to public order or to the interests of others. They also had to avoid casting doubt on the legitimacy of the beliefs in question and must remain proportionate to the circumstances of the case.

In the present case, it did not appear from the circular letter and the information notice distributed to schools that the authors had been mindful of the authorities’ duty of neutrality and impartiality. On the contrary, these documents contained unqualified negative judgments, in particular those portraying the Evangelical Churches as “dangerous sects” which “contravene[d] Bulgarian legislation, citizens’ rights and public order” and “create[d] divisions and opposition within the Bulgarian nation on religious grounds”. They also made unfounded references to certain proven cases of improper proselytising as reflecting the usual practice of those Churches. Lastly, they drew comparisons with the dominant Orthodox religion and made remarks linking, in particular, the lack of veneration of “national saints” with the division of the Bulgarian nation. Those remarks could be interpreted as casting doubt on the legitimacy of the beliefs and practices of the Churches concerned.

While the Court regarded as justifiable the intention to warn pupils against possible abusive practices by certain religious groups by informing them about such practices, it was not persuaded that the use of language such as that referred to in the preceding paragraph was necessary for that purpose.

Congress Passes National Defense Authorization Bill with Various Provisions Impacting Religion

A press release from the U.S. Senate Armed Services Committee reports that on Thursday the U.S. Senate passed the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 by a vote of 83-11. The 4408-page bill (full text) now goes to President Biden for his signature. Among the provisions that impact religious concerns are the following:

 SEC. 509D. STUDY OF CHAPLAINS. 

(a) STUDY REQUIRED.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense, in consultation with the Secretaries of the military departments, shall submit to the Committees on Armed Services of the Senate and House of Representatives a study of the roles and responsibilities of chaplains. 

(b) ELEMENTS.—The study under subsection (a) shall include the following: (1) The resources (including funding, administrative support, and personnel) available to support religious programs. (2) Inclusion of chaplains in resiliency, suicide prevention, wellness, and other related programs. (3) The role of chaplains in embedded units, headquarters activities. and military treatment facilities. (4) Recruitment and retention of chaplains. (5) An analysis of the number of hours chaplains spend in roles including pastoral care, religious services, counseling, and administration. (6) The results of any surveys that have assessed the roles, responsibilities and satisfaction of chaplains. (7) A review of the personnel requirements for chaplains during fiscal years 2013 through 2022. (8) Challenges to the abilities of chaplains to offer ministry services.

SEC. 525. RESCISSION OF COVID-19 VACCINATION MANDATE

Not later than 30 days after the date of the enactment of this Act, the Secretary of Defense shall rescind the mandate that members of the Armed Forces be vaccinated against COVID-19 pursuant to the memorandum dated August 24, 2021, regarding ‘‘Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members’’.

SEC. 529. RECURRING REPORT REGARDING COVID-19 MANDATE. 

(a) REPORT REQUIRED.—The Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives a recurring report regarding the requirement that a member of the Armed Forces shall receive a vaccination against COVID-19. 

Each such report may not contain any personally identifiable information, and shall contain the following:  (1) With regard to religious exemptions to such requirement— (A) the number of such exemptions for which members applied; (B) the number of such religious exemptions denied; (C) the reasons for such denials; (D) the number of members denied such a religious exemption who complied with the requirement; and (E) the number of members denied such a religious exemption who did not comply with the requirement who were separated, and with what characterization....

Section 533 requires the Armed Forces to submit to Congress a report on recruiting efforts. Among other things, the Report is to include:  "A comparison of the race, religion, sex, education levels, military occupational specialties, and waivers for enlistment granted to enlistees by geographic region and recruiting battalion, recruiting district, or recruiting region of responsibility."

Title XXIX contains various provisions relating to access, preservation and protection of Native American cultural and religious sites within land used for bombing ranges and training areas.

Section 5576 limits foreign aid funds allocated for Burma, providing that funds may not be made available to "to any individual or organization that has committed a gross violation of human rights or advocates violence against ethnic or religious groups or individuals in Burma."

Section 6416 provides for creation of an Office of Wellness and Workforce Support for CIA personnel. Among other things, the Office is to make available: "A list of chaplains and religious counselors who have experience with the needs of the Agency workforce...."

Congregants of Buddhist Temple Have Standing to Sue in Factional Dispute

 In Bui v. Loc Hoang Bach, (CA App., Dec. 16, 2022), a California state appellate court, reversing the trial court, held that congregants of a Vietnamese Buddhist Temple have standing to sue two directors who took over control of the Temple after the death of its long-time Abbot. The two directors are attempting to force out the deceased Abbot's nephew who appellants claim was chosen by the deceased Abbot to be the new leader of the Temple. The court held that because the Temple's bylaws did not provide for members, plaintiffs cannot rely on the Nonprofit Religious Corporation Law provision that allows members to sue. The court went on to conclude, however:

There are two other causes of action in the complaint, neither of which is dependent on standing under the code. The second cause of action for accounting requires only that the plaintiff has a relationship with the defendant which requires an accounting.... This relationship need not be fiduciary in nature....  As congregants who have paid dues and invested time and energy in the temple, the Buis – like any other congregant – are arguably entitled to an accounting of the Bachs’ use of temple monies.

As for declaratory and injunctive relief, the Buis seek a judicial determination of the parties’ respective rights and obligations. At minimum, this would require a determination of who is legitimately on the board of directors at present. More specifically, the Buis seek to block the eviction of Cao. Given that Cao has been confirmed as the head abbot at the temple, and was the desired successor to Abbot Thanh, his eviction would almost certainly impact worship at the temple, which consequently impacts the religious freedom of congregants. They have a beneficial interest in these affairs.

Head of Priests for Life Defrocked by The Vatican

A letter and statement (full text) from the Apostolic Nuncio to the United States to U.S. Catholic bishops reports:

Rev. Frank Pavone, the founder of the organization, Priests for Life, Inc., was dismissed from the clerical state by the Holy See on 9 November 2022. This action was taken after Father Pavone was found guilty in canonical proceedings of blasphemous communications on social media, and of persistent disobedience of the lawful instructions of his diocesan bishop. 

Father Pavone was given ample opportunity to defend himself in the canonical proceedings, and he was also given multiple opportunities to submit himself to the authority of his diocesan bishop. It was determined that Father Pavone had no reasonable justification for his actions. 

Since Priests for Life, Inc. is not a Catholic organization, Mr. Pavone’s continuing role in it as a lay person would be entirely up to the leadership of that organization.

According to Catholic News Agency:

Pavone has been at odds with Bishop Patrick J. Zurek in Amarillo since the latter became bishop there in 2008. In 2011, Zurek publicly suspended Pavone, though Pavone later had the suspension overruled by the Vatican....

Pavone’s political activism played a role in his problems in Amarillo.

An outspoken supporter of former president Donald Trump, Pavone served on official Trump campaign outreach positions in 2016 and was originally a co-chair of Trump’s 2020 pro-life coalition, as well as an advisory board member of Catholics for Trump. Canon law forbids clerics from having an active role in political parties unless they receive the permission of their bishop. 

In November 2016, Pavone filmed a video at the Priests for Life headquarters, urging support for Trump. The video was staged with the body of an aborted baby laid before Pavone on what appeared to be an altar....

On his website, Pavone details his version of what happened in the video.... "[T]his was a table in our office, not a consecrated altar in a chapel"....

Recent Articles of Interest

From SSRN:

• Timothy D. Lytton, Private Third-Party Verification of Product Claims: Lessons from Kosher Certification, (Forthcoming in Research Handbook on International Food Law, Michael Roberts (ed.), Edward Elgar 2023).
• Marc O. DeGirolami, Mysterizing Religion, (Notre Dame Law Review, Forthcoming).
• Caroline Mala Corbin, When Teachers Misgender: The Free Speech Claims of Public School Teachers, (Journal of Free Speech Law, Vol 1, p. 615, 2022).
• Christopher McCrudden, Alasdair Macintyre’s Critique of Human Dignity: A Response, ((2022) 189 Law and Justice: The Christian Law Review, Forthcoming).
• Marc Spindelman, The 'Dobbs' Promise Gets Tested at the Supreme Court [in 303 Creative v. Elenis], (The American Prospect (December 1, 2022)).
• Benjamin C. Zipursky, Benjamin Cardozo and American Natural Law Theory, (Forthcoming, Yale Journal of Law and the Humanities, 2023).

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

• Anna Lund & Howard Kislowicz, The Oppression Remedy in Religious Organizations, ((2023) UBC Law Review (Forthcoming)).
• Mischa Gureghian-Hall, Can Statutes Save Statues? A Critical Assessment of the Interplay between International Humanitarian and Human Rights Law Protections for Cultural Heritage During Armed Conflict, (The Global Heritage Discourse and Practice in Times of Crises and Conflict, University of Bamberg, December 2022).
• Shubhangi Roy, When Law Defeats its Purpose: How Anti-Dowry Legislations (Fail to) Address the Norms that Motivate Dowry Payments in India, (13 Journal of Indian Law and Society 1 51-66 (2022)).

From SmartCILP and elsewhere:

• Vrinda Narain, Constitutionalizing Women's Equality in India: Assessing the Sabarimala Decision, 42 Columbia Journal of Gender & Law 77-129 (2022).
• Michael Pantazakos, Nietzsche's Sovereign Individual and the Sin of Sodom, 83 University of Pittsburgh Law Review 463-472 (2021)).
• Shaina Trapedo, The Sin of Singularity and the Divine Origins of Human Rights Advocacy, 83 University of Pittsburgh Law Review 473-483 (2021).
• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations, (May 2022).

British Columbia's COVID Restrictions on Worship Services Upheld

In Beaudoin v. Attorney General of British Columbia, (BC Ct. App., Dec. 16, 2022), the highest court in the Canadian province of British Columbia upheld 2020 and 2021 COVID orders of BC's Provincial Health Officer that prohibited in-person worship services.  The court concluded that the Gathering and Events Order did not violate §15 of the Charter of Rights and Freedoms that protects the equality rights of the churches that were plaintiffs in the suit, saying in part:

[T]he G&E orders did not create any distinction based on the religious or non-religious nature of the setting in question. Any distinction between settings permitted to remain open and those required to close was based on epidemiological data and the PHO’s assessment—supported by provincial, national and international data and experience—that the level of risk of viral transmission was unacceptably high in certain types of settings or gatherings involving certain types of activities. The risks associated with retail and other permitted activities—typically involving more transient contact between individuals of a transactional nature—were determined to be different than the risks associated with the activities that form an essential component of in-person religious worship and the celebration of faith.

The court also concluded that plaintiffs' religious freedom rights under §2 of the Charter were not infringed, saying in part:

In my view, the limitation on the religious freedom of the appellants stemming from the G&E orders has been shown to be a proportionate one in light of the unprecedented risk to public health that arose during the second wave of the virus, the need to take precautions to stop preventable deaths from occurring, and the need to protect the capacity of the healthcare system....

[T]here was an ample evidentiary basis upon which the PHO could reasonably conclude that, when faith-based communities gathered for worship, the risk of transmission was unacceptably high.... [O]bservance of the liturgy requires a spiritual communion of faith that involves participation of the congregation in physically intimate acts—sharing communion, prayer, and song. These activities were known to be associated with a heightened risk of transmission.... [T]here is no proper basis upon which a reviewing court could interfere with the scientific determinations underlying the PHO’s orders....

CBC News reports on the decision.

EEOC Sues Over Refusal To Accommodate Religious Objections To Flu Vaccine

The EEOC announced on Friday that it has filed a Title VII religious discrimination lawsuit in a Georgia federal district court against Children’s Healthcare of Atlanta (CHOA), a pediatric healthcare system. According to the EEOC's press release:

... [A] maintenance employee, in accordance with CHOA’s procedures, requested a religious exemption to CHOA’s flu vaccination requirements based on sincerely held religious beliefs. CHOA had previously granted the employee a religious exemption in 2017 and 2018. In 2019, however, CHOA denied the employee’s request for a religious accommodation and fired him, despite the employee’s extremely limited interaction with the public or staff.

... Title VII ... prohibits firing an employee because of his religion and requires that sincerely held religious beliefs be accommodated by employers....

“It would not have been an undue burden for CHOA to continue accommodating its employee as it had in 2017 and 2018,” said Marcus G. Keegan, regional attorney for the EEOC’s Atlanta District Office. “Instead, CHOA inexplicably changed its stance on flu vaccination exemptions for this maintenance employee in 2019 and failed to consider any meaningful reasonable accommodations for his sincerely held religious beliefs.”

Suit Challenges Exclusion of Gender Transition Care From Health Insurance Policies

Suit was filed this week in a Georgia federal district court challenging under Title VII and Title IX the exclusion from certain state of Georgia's employee health care plans coverage for gender transition procedures.  The complaint (full text) in Rich v. Georgia, (ND GA, filed 12/14/2022) alleges in part:

United withdraws coverage for care that would otherwise be covered as medically necessary when it is needed for the purpose of “sex transformation operations and related services.” It lists this exclusion under the heading “Personal Care, Comfort or Convenience,” along with televisions, air conditioners, and barber service.

The complaint alleges that this exclusion, and a similar one by another company, amount to illegal sex discrimination. TLDEF issued a press release announcing the filing of the lawsuit.

Christian Doctors Challenge New Mexico's Assisted Suicide Law

Suit was filed this week in a New Mexico federal district court by a physician and the Christian Medical & Dental Associations challenging the constitutionality of New Mexico's End-of-Life Options Act.  The complaint (full text) in Lacy v, Balderas, (D NM, filed 12/14/2022), alleges in part:

6. The Act purports to protect physicians who object to assisted suicide for reasons of conscience, saying they will not be required to “participate.” But that promise rings hollow. The Act does not define the word “participate,” requires conscientious objectors to facilitate suicide in material ways, and expressly prohibits professional associations like CMDA from taking action to ensure that their members advance—rather than undermine—their mission and message.

7. The Act compels objecting physicians to speak and inform terminally ill patients about the availability of assisted suicide.....

8. The Act forces objecting physicians to refer their patients to physicians or organizations who are “able and willing to carry out” the patient’s assisted suicide.....

9. The Act expressly prohibits professional associations like CMDA from suspending, denying, or revoking membership to physicians who participate in assisted suicide, violating CMDA’s right to associate with members who will present a consistent message. Id. at § 24-7C-7(B).

10. The State of New Mexico thus compels objecting health care professionals to speak a certain message about assisted suicide, and forces them to provide proximate, formal, and material cooperation in an unethical and sinful act.

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

Suit Charges Selective Granting of Religious Exemptions From COVID Vaccine Mandate

A class action lawsuit was filed in a Virginia federal district court this week alleging that the University of Virgina Health System violated free exercise and establishment clause provisions of the federal and state constitutions as well as equal protection rights in the manner in which it administered applications from employees for religious exemptions from its COVID vaccine mandate. The complaint (full text) (memo in support of motion for preliminary injunction) in Phillips v. Rector and Visitors of the University of Virginia, (WD VA, filed 12/14/2022), alleges in part:

2. When UVA Health mandated that employees receive a COVID-19 vaccine, it knew that it was required to accommodate religious beliefs. But it wanted to minimize accommodations, and it believed that most objections were false political beliefs from members of the political right. 

3. So UVA Health drew up a list of churches that its human-resources personnel believed had official doctrines prohibiting vaccination. It then automatically exempted members of these religions from receiving the vaccine. As to employees who were members of other faiths, UVA Health automatically dismissed their religious objections to the COVID-19 vaccine as insincere, as non-religious in nature, as based on “misinformation,” or as a misinterpretation of the objector’s own religious beliefs....

5. The result was blatant—and blatantly unconstitutional—religious discrimination....

The complaint goes on to allege that UVA categorically dismissed as misinformation objections based on the relation of fetal cell lines to the vaccines. [Thanks to Samuel Diehl for the lead.]

NY Appellate Court Says Yeshiva University Must Recognize LGBTQ Student Group

In YU Pride Alliance v. Yeshiva University, (NY App. Div., Dec. 15, 2022), a New York state appellate court affirmed a trial court's decision that New York City's public accommodation law requires Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance. The appellate court said in part:

[The trial court] correctly held that Yeshiva does not meet the definition of "religious corporation incorporated under the education law or the religious corporation law," which would exempt it from the prohibitions against discrimination in public accommodations as an organization "deemed to be . . . distinctly private" (Administrative Code of City of NY §§ 8-102, 8-107[4][a][1][a])....

Turning to defendants' First Amendment arguments, we find that providing the Pride Alliance with full and equal access to public accommodations does not intrude on Yeshiva's asserted right "to decide matters 'of faith and doctrine'" ... The record demonstrates that Yeshiva already recognizes LGBTQ+ student organizations at three of its graduate schools... and made clear as early as 1995 that this recognition did not mean Yeshiva endorsed or accepted the views of those student groups.... [W]e find that denial of recognition for the Pride Alliance is not "essential" to Yeshiva's "central mission"...

Similarly, we find no violation of Yeshiva's free exercise of religion. The City HRL's public accommodations provision is both neutral and generally applicable.... 

Finally, we reject the contention that recognizing the Pride Alliance as a student club violates Yeshiva's freedom of expression and association, as a "school does not endorse or support student speech that it merely permits on a nondiscriminatory basis".... Moreover, there is no violation of Yeshiva's associational rights where plaintiff Pride Alliance members are already enrolled students, Yeshiva already engaged in many discussions with the Pride Alliance about sexual orientation and gender identity issues, Yeshiva continued to express the desire to foster diversity and inclusion in association with Pride Alliance members when denying official recognition, and Yeshiva even explained several actions it was undertaking to bring about "greater awareness and acceptance" and "create a space where students, faculty and Roshei Yeshiva to continue this conversation" about sexual orientation and gender identity....

The Forward reports on the decision.

9th Circuit Reverses Dismissal of Inmate's Complaint Over Exclusion of NOI Texts

In Jones v. Shinn, (9th Cir., Dec.14, 2022), the U.S. 9th Circuit Court of Appeals held that the district court should not have dismissed an inmate's claim that his rights under RLUIPA were violated when prison authorities denied him access to four texts by Elijah Muhammad. The court said in part:

[T]he district court erred in characterizing the religious exercise at issue as whether Jones was denied all Nation of Islam texts rather than whether the exclusion of the specific texts constitutes a substantial burden on his exercise of religion.... 

And because Jones provided evidence that all texts by Elijah Muhammad are “essential religious texts needed to practice the Islamic faith in accordance with the Nation of Islam,” he raised a triable dispute as to whether the exclusion of the texts constitutes a substantial burden on his exercise of religion.

However, the court affirmed the dismissal of plaintiff's 1st Amendment free exercise claims, because defendants showed the exclusion was reasonably related to a legitimate penological interest.

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.