11th Circuit En Banc Upholds School Policy Assigning Restrooms on Basis of Biological Sex

In Adams v. School Board of St. Johns County, Florida, (11th Cir., Dec. 30, 2022), the U.S. 11th Circuit Court of Appeals sitting en banc in a 7-4 decision held that separating use of male and female bathrooms in public schools based on students' biological sex does not violate either the Equal Protection Clause or Title IX. The six opinions filed in the case span 150 pages.  A 3-judge panel in a 2-1 decision had previously ruled to the contrary. The majority opinion on en banc review said in part:

The School Board’s bathroom policy is clearly related to—indeed, is almost a mirror of—its objective of protecting the privacy interests of students to use the bathroom away from the opposite sex and to shield their bodies from the opposite sex in the bathroom, which, like a locker room or shower facility, is one of the spaces in a school where such bodily exposure is most likely to occur. Therefore, the School Board’s bathroom policy satisfies intermediate scrutiny.

The district court avoided this conclusion only by misconstruing the privacy interests at issue and the bathroom policy employed.... [T]he bathroom policy does not unlawfully discriminate on the basis of biological sex....

The policy impacts approximately 0.04 percent of the students within the School District—i.e., sixteen transgender students out of 40,000 total students—in a manner unforeseen when the bathroom policy was implemented. And to accommodate that small percentage, while at the same time taking into account the privacy interests of the other students in the School District, the School Board authorized the use of sex-neutral bathrooms as part of its Best Practices Guidelines for LGBTQ issues....

Contrary to the dissent’s claim, the School Board, through the Best Practices Guidelines, did not discriminatorily “single[] out transgender students.” ... The School Board sought to accommodate transgender students by providing them with an alternative—i.e., sex-neutral bathrooms—and not requiring them to use the bathrooms that match their biological sex— i.e., the bathroom policy Adams challenges.... Ultimately, there is no evidence of purposeful discrimination against transgender students by the School Board, and any disparate impact that the bathroom policy has on those students does not violate the Constitution.

Judge Lagoa filed an opinion Specially Concurring, saying in part:

 I write separately to discuss the effect that a departure from a biological understanding of “sex” under Title IX—i.e., equating “sex” to “gender identity” or “transgender status”—would have on girls’ and women’s rights and sports.

Judge Wilson dissented, saying in part:

Underlying this sex-assigned-at-matriculation bathroom policy ... is the presumption that biological sex is accurately determinable at birth and that it is a static or permanent biological determination. In other words, the policy presumes it does not need to accept amended documentation because a student’s sex does not change. This presumption is both medically and scientifically flawed....

The case of intersex students therefore proves that a privacy concern rooted in a thin conception of biological sex is untenable.

Judge Jordan filed a dissenting opinion, joined by Judges Wilson and Rosenbaum, saying in part:

[T]he School Board’s policy allows a transgender student just like Drew to use the boys’ bathroom if he enrolls after transition with documents listing him as male. Because such a student poses the same claimed safety and privacy concerns as Drew, the School Board’s bathroom policy can only be justified by administrative convenience.

Judge Rosenbaum filed a dissenting opinion, saying in part:

I join Judge Jordan’s dissent in its entirety and Judge Jill Pryor’s dissent’s equal-protection analysis. I write separately only to emphasize one point ...: the Majority Opinion’s misplaced suggestions that affirming the district court’s order on equal-protection grounds would require courts in this Circuit to find that all challenges involving restrooms, locker rooms, and changing facilities must necessarily be upheld are wrong.

Judge Jill Pryor filed a dissenting opinion (which Judge Rosenbaum joined as to her equal protection analysis) saying said in part:

In contrast to transgender students, all cisgender students are permitted to use the restroom matching their gender identity. The policy, therefore, facially discriminates against transgender students by depriving them of a benefit that is provided to all cisgender students. It places all transgender students on one side of a line, and all cisgender students on the other side. The School District cannot hide beyond facially neutral-sounding terms like “biological sex.” As the Supreme Court has observed, “neutral terms can mask discrimination that is unlawful.”...

[T]he bathroom policy’s assignment of Adams to the girls’ restrooms would actually undermine the abstract privacy interest the School District wished to promote. While he attended Nease and was excluded from the boys’ bathrooms, Adams had “facial hair,” “typical male muscle development,” a deep voice, and a short haircut.... He had no visible breast tissue; his chest appeared flat. He wore masculine clothing. Any occupant of the girls’ restroom would have seen a boy entering the restroom when Adams walked in. Thus, the district court found, “permitting him to use the girls’ restroom would be unsettling for all the same reasons the School District does not want any other boy in the girls’ restroom.”...

The School District’s policy categorically assigned transgender students, including Adams, to bathrooms based on only one biological marker: their sex assigned at birth. Adams’s claim that the School District’s notion of what “sex” means is discriminatory is not foreclosed by the Title IX carveouts....

Law & Crime reports on the decision. 

European Court Again Holds That Flying Spaghetti Monster Church Is Not a Protected "Religion"

In two recent Chamber Judgments, the European Court of Human Rights reaffirmed its prior holding in a 2021 case that the Church of the Flying Spaghetti Monster, whose adherents are also known as Pastafarians, does not qualify as a "religion" or "belief" protected by Article 9 of the European Convention on Human Rights. In Sager v. Austria, (ECHR, Dec. 15, 2022), Austria's Office for Religious Affairs refused to recognize the Church as a religious community. The European Court rejected petitioner's challenge to that decision, saying in part:

[B]y holding that Pastafarianism perceived itself as an ironical and critical movement with educational, scientific and political aims, and lacked religious rites, duties and an active following in Austria, the Office for Religious Affairs and the Federal Administrative Court duly applied the above‑mentioned standards requiring a certain level of cogency, seriousness, cohesion and importance.

In ALM v. Austria, (ECHR, Dec. 15, 2022), Austrian authorities refused to issue petitioner an identity card with a photograph showing him wearing a crown made of pasta.  Again, the European Court rejected petitioner's challenge to that decision. Law & Religion UK reports on the decisions.

Refusal To Approve Athletic Field Lights for Catholic School Did Not Violate RLUIPA

In Edgewood High School of the Sacred Heart, Inc. v. City of Madison, Wisconsin, a Wisconsin federal district court rejected RLUIPA, free speech and other challenges by a Catholic high school to the city's denial of a permit for outdoor lighting at its athletic fields. The surrounding residential neighborhood association objected to the proposal.  The court said in part:

The initial question is whether putting lights on an athletic field is a religious exercise for plaintiff Edgewood at all....  Edgewood suggests that athletics have long been a part of Edgewood, consistent with the Sinisawa Dominican tradition of educating the whole person. Yet this case is not about athletics in general; it is about Edgewood’s ability to install lights in order to use its athletic field at night.... [U]se of the field at night has never been a part of Sinisawa’s Dominican strategy, which largely takes place during regular school hours.

In fairness, plaintiff also suggests that the field could be used for liturgies and other religious ceremonies, but there is nothing in the record indicating that Edgewood ever uses the field for such purposes, much less that it has a need to do so at night....

Even if the court were to assume that night football (as opposed to a variety of sports conducted in gym classes and at practices) is an important element of Edgewood’s religious exercise, which is certainly not a given, plaintiff offers no evidence that it is substantially burdened by having to play night home games at a different field....

[I]t would be a misreading of [two prior cases cited by plaintiffs] to hold that public outcry is sufficient to show unequal treatment under RLUIPA absent proof of a substantial burden on religious exercise, something simply lacking in this case.

Recent Articles of Interest

From SSRN:

• Serap Güneş, De-Europeanisation as Counter-conduct: The Case of Non-Muslim Religious Minorities in Turkey, Romanian Journal of European Affairs (22(2), 5-29 (2022)).
• Nicholas Aroney, Economics, Law, Education, and Religion - Contributions to the Composition of a Good Society, (in Michael Welker, John Witte, Piet Naudè and Stephen Pickard (eds), "The Impact of the Political Economy on Character Formation, Ethical Education and the Communication of Values in Late Modern Pluralistic Societies" (Leipzig: Evangelische Verlagsanstalt, 2020).
• Susan Frelich Appleton, Out of Bounds?: Abortion, Choice of Law, and a Modest Role for Congress,  (Forthcoming, 35 American Academy of Matrimonial Lawyers Journal ___ (2023)).
• James Cleith Phillips, The Respect for Marriage Act's Polygamy Problem (December 22, 2022).
• Matthew Goldammer, A Defense of the Compulsory Deference Approach for Church Property Litigation, (Forthcoming in the Notre Dame Journal of Law, Ethics & Public Policy).
• Gabriella Kamran, Off-White: Al-Khazraji and Shaare Tefila's Potential to De-Essentialize Antidiscrimination Law, (17 Fla. A&M U. L. Rev. 129 (2022)).
• Zainuddin Zainuddin & Rosmini Rosmini, Distribution of Zakat for Communities Affected by COVID-19 in the Perspective of Socio-Economic Justice, (November 30, 2022).
• Nancy C. Marcus, Bendita Malakia, Ann E. Tweedy & Mya Reid, Bridging the Gap in LGBTQ Rights Litigation: A Community Discussion on Bisexual Visibility in the Law, (Hastings Women's Law Journal, Vol. 34, No. 1, 2023).

From SmartCILP:

• Corey Brettschneider, Praying for America: The Anti-Theocracy and Equal Status Principles of the Free Exercise, Equal Protection and Establishment Clauses, 47 BYU Law Review 1127-1170 (2022).
• Mark Satta, Political Partisanship and Sincere Religious Conviction, 47 BYU Law Review 1221-1274 (2022).
• Josh Blackman, The "Essential" Free Exercise Clause, 44 Harvard Journal of Law & Public Policy 637-762 (2021).

Happy New Year 2023!

Dear Religion Clause Readers:

Happy New Year 2023! I hope that you continue to find Religion Clause a valuable source of information on the intersection of law, religion and public policy. In this past year, we have seen important First Amendment doctrinal developments. Free exercise concerns have loomed larger in the view of the Supreme Court and the Establishment Clause has become a weaker limit on governmental actions. Cases which on their surface were not religion cases have nevertheless sharpened cultural and political divisions along religious lines.  And antisemitism has become a growing concern.

In reporting on these and other developments, I have attempted to retain Religion Clause's objectivity and its policy of linking to extensive primary source material. I hope that the blog continues to have a reputation for reliability at a time when the objectivity of social media is increasingly called into question.  

Religion Clause is a niche blog whose readership includes lawyers, social scientists, advocacy organization personnel, law school faculty, journalists, clergy, legislative and executive branch staff, students and others working professionally dealing with church-state relations and religious liberty concerns in the U.S. and around the world. I attempt to avoid excessively technical matters in my posts in order to make the blog accessible as well to non-lawyers with a general interest in the area.

Thank you to all of you who are loyal readers of Religion Clause-- both those who have followed it for years and those who have only recently discovered it. I hope you will continue to follow Religion Clause in 2023. Please recommend the blog to colleagues, students and friends who may find it useful and interesting.

Best wishes as we all face the challenges that 2023 brings to us.  I hope that we are able to deal with these challenges by respecting divergent viewpoints and coming together with solutions to at least some of the many problems that we face.

Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions. Best wishes for 2023.

Howard Friedman

New York Ban on Firearms at Churches Violates 1st and 2nd Amendments

In Spencer v. Nigrelli, (WD NY, Dec. 29, 2022), a New York federal district court issued a preliminary injunction barring enforcement against plaintiffs-- a pastor and his church-- of New York state's ban on concealed-carry license holders possessing a firearm at any place of worship or religious observation. The court concluded that the ban violates the Free Exercise Clause, Establishment Clause and Second Amendment rights of plaintiffs, saying in part:

Pastor Spencer believes that he has "a moral and religious duty to take reasonable measures to protect the safety of those who enter the Church."... He explained that the "Bible often refers to religious leaders as 'shepherds' and tasks them with caring for and protecting their 'flocks."'... He therefore believes that "providing for the physical safety of the Church tin body of Christ—is [his] religious act and duty as a pastor."...

Pastor Spencer testified that members of the Church's security team of congregants protect the congregation pursuant to a calling from God. Hired outside security, Spencer believes, is not an adequate substitute because such individuals would be working for a paycheck—not acting pursuant to a spiritual calling.... Pastor Spencer and Church members have a religious belief that they, themselves, must protect the flock. Indeed, religious beliefs "need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection." ...

In sum, on this record, Plaintiffs have demonstrated that the State permits countless other private actors hosting secular activities to do what a house of worship may not. The houses of worship exclusion is not a neutral law of general applicability....

The new law, in effect, forces them to disregard this spiritual calling and, notably, dictates that protection of the Church may only be provided by a different group of people—i.e., individuals fitting into a statutory exemption. The Supreme Court instructs that "a component" of a church's "autonomy is the selection of the individuals who play certain key roles."... [T]he place of worship exclusion encroaches on matters "closely linked" with the Church's right to determine how best to conduct its own affairs.

However, the court issued a stay pending appeal allowing the church to designate individuals who have concealed carry licenses to carry firearms on church premises to keep the peace. This is consistent with stays issued by the Second Circuit in other cases now on appeal challenging the New York ban on firearms at places of worship. The Reload reports on the decision. Reason has more on the Second Amendment aspects of the case.

HHS Issues Notice of Proposed Rulemaking on Conscience Protections For Healthcare Providers

The U.S. Department of Health and Human Services released yesterday a Notice of Proposed Rulemaking (full text) titled Safeguarding the Rights of Conscience as Protected by Federal Statutes. In 2019, the Trump Administration HHS adopted final rules on protecting the conscience rights of health care providers. The rules were criticized as possibly imperiling care for persons seeking reproductive health care, weakening childhood vaccination efforts and potentially leading to discrimination against gay and transgender patients. (See prior posting.) Several courts enjoined enforcement of the 2019 rules. (See prior posting.) Yesterday's Notice of Proposed Rulemaking says in part:

The Department also proposes to retain, with some modifications, certain provisions of the 2019 Final Rule regarding federal conscience protections but eliminate others because they are redundant or confusing, because they undermine the balance Congress struck between safeguarding conscience rights and protecting access to health care access, or because significant questions have been raised as to their legal authorization. Further, the Department seeks to determine what additional regulations, if any, are necessary to implement certain conscience protection laws. The Department is seeking public comment on the proposal to retain certain provisions of the 2019 Final Rule, including on any alternative approaches for ensuring compliance with the conscience protection laws....

The ACLU issued a press release calling the HHS Notice "an important first step toward repealing the most harmful aspects of this dangerous rule."

Court Approves Bankruptcy Reorganization Plan for Santa Fe Archdiocese

The Catholic Archdiocese of Santa Fe, New Mexico announced yesterday that a U.S. Bankruptcy Court has confirmed a Plan of Reorganization that has been agreed to by the Committee representing victims of clergy abuse and by the Archdiocese. According to an Open Letter from the Official Committee of Unsecured Creditors recommending that abuse victims vote to accept the plan:

Under the Plan, the Debtor, its affiliates and their insurers will create a settlement fund of approximately $121.5 million (the “Settlement Amount”) upon the effective date of the Plan. The Plan also includes measures to enhance child protection, including the first-ever publication of abuse related documents through an archive administered by the University of New Mexico.

All the Chapter 11 Plan Documents are available on the Archdiocese's website. In announcing the court's confirmation of the plan, Archbishop Wester said in part:

While I hope and pray that the bankruptcy outcome will bring a measure of justice and relief to the victims of clergy sexual abuse, I realize that nothing can ever compensate them for the criminal and horrendous abuse they endured. I pledge that the Archdiocese of Santa Fe will remain vigilant in protecting children and young people from clergy sexual abuse, doing all we can to assure them of a safe and protective environment in the Catholic Church. We will continue to monitor the safeguards we have put in place and implement the non-monetary agreements....

Once again, I express my most profound sorrow and contrition for those who have endured clergy sexual abuse. This is a sin that cries to heaven for vengeance and which has no place in the Catholic Church: not now, not ever.

AP reports on the court's action and has additional background on the proceedings. 

Christian School Teacher Fired for Acceptance of LGBT Students Files Suit

Suit was filed this week in an Arizona federal district court by Adam McDorman, an English teacher who was fired by Valley Christian School for urging the school's principal, Josh LeSage, to show acceptance and understanding of a student who identifies as pansexual.  The complaint (full text) in McDorman v. Valley Christian Schools, (D AZ, filed 12/27/2022), alleges in part:

15. McDorman’s Christian faith and beliefs include acceptance and equality for all LGBT persons and do not tolerate discrimination or hostility against them....

19.  On November 1, 2021, during a staff meeting at which McDorman was present, LeSage said that all of VCS staff should have the same religious belief in the sinfulness of LGBT sexual orientation, and that anyone who did not agree was like a cancer that needed to be removed from the (VCS) organization....

The complaint alleges that McDorman's firing amounted to religious discrimination and retaliation for opposing discriminatory practices in violation of provisions of Title VII and Title IX. AZFamily News reports on the lawsuit.

6th Circuit: Healthcare Buffer Zone Law Violates Pro-Lifer's Free Speech Rights

In Sisters for Life, Inc. v. Louisville-Jefferson County, KY Metro Government, (6th Cir., Dec. 21, 2022), the U.S. 6th Circuit Court of Appeals held that an ordinance imposing a 10-foot buffer zone around the entrance of any healthcare facility abridges the free speech rights of pro-life groups and individuals who wish to hand out leaflets and speak with women entering abortion clinics. The court said in part:

Even though caselaw permits a city to enact access laws focused on abortion facilities, ... the County sought to advance its interests by imposing a buffer zone on all medical facilities in Louisville. And why? The record does not reveal access problems beyond EMW.... Yet the ordinance covers every single hospital, clinic, and dentist’s office in the area.... Because the County may not “burden substantially more speech than is necessary” to further the County’s order and access interests,..., and because the County has not made any showing that all medical facilities need this kind of regulation, the ordinance lacks any tailoring, to say nothing of narrow tailoring.... 

The second problem is that the County has not shown that it “seriously undertook to address” its concerns “with less intrusive tools.”... [T]he County offers no tenable... explanation why the first prohibition in the law—that no one shall “knowingly obstruct, detain, hinder, impede, or block another person’s entry to or exit from a healthcare facility,”... will not work.

Rejection of Foster Parent Applicants Over Their Views on Homosexuality Violates Australian Equal Opportunity Law

In Hordyk v. Wanslea Family Services, Inc., (WA SAT, Dec. 23, 2022), the State Administrative Tribunal of Western Australia held that a non-profit family services agency that contracts with the state to arrange foster care for children placed in custody of the state violated Section 62 of the Western Australia Equal Opportunity Act 1984 when it rejected a couple who are members of the Free Reformed Church of Australia as foster parents. According to the court:

4, During the assessment process, the Hordyks revealed, in answer to specific questions asked of them, that they held the view that the Seventh Commandment in the Old Testament of the Bible requires sexual relationships to take place only between a man and woman who are married and that other expressions of human sexuality are sinful. The Hordyks believe that same-sex relationships are sinful and that people who feel same-sex attraction must fight the sin in order to live in conformity with the Commandments. They informed Wanslea that, as a result of their beliefs, in the event that a foster child who had been placed in their care was found kissing a child of the same sex at school, they would tell the child that they were loved but that the behaviour was sinful and needed to be resisted. The Hordyks said they would have to end the placement of a foster child who continued to behave in that way. They qualified that statement by saying that they would not terminate the placement immediately but could not foster that child in the long term.

5.  Following the Hordyks' expression of those views, Wanslea's staff decided not to proceed to a final assessment of the Hordyks' application and instead terminated the assessment process....

Law and Religion Australia reports at greater length on the decision.

6th Circuit: Temporary Shortening of Prison Worship Time Upheld

In Dykes-Bey v. Schroeder, (6th Cir., Dec. 27, 2022), the U.S. 6th Circuit Court of Appeals affirmed the dismissal of a suit brought under the 1st Amendment and RLUIPA by a Michigan inmate, concluding that the Michigan prison system had not imposed a "substantial burden" on the inmate's free exercise of religion. According to the court:

[D]efendants reduced the worship time for all religious groups from one hour to 30 minutes. As a result of this reduction in worship time, Dykes-Bey, a Moorish American Moslem, was unable to read the proclamation or conduct the closing prayer at four weekly meetings of the Moorish Science Temple of America....

Finding no 1st Amendment violation, the court said in part: 

Dykes-Bey sufficiently alleged a sincerely held religious belief or practice—reading the proclamation and conducting the closing prayer at meetings of the Moorish Science Temple of America. But the defendants' conduct did not rise to the level of a substantial burden on his religious exercise....

Focusing on plaintiff's RLUIPA claim, the court said in part:

Dykes-Bey sought only monetary relief from the defendants, which is not authorized by RLUIPA.

State Department Gets Broader Authority to Pay Rewards in War Crimes, Crimes Against Humanity and Genocide Cases

Yesterday President Biden signed into law H.R.4250 (full text) which expands the Department of State War Crimes Rewards Program that allows the State Department to pay rewards to persons who furnish information leading to the arrest or conviction in any country, or by an international criminal tribunal, of any foreign national accused of war crimes, crimes against humanity, or genocide. Previously 22 USC §2708(b)(10) had a seemingly artificial limitation on when a reward could be paid.  It was authorized only when the defendant was convicted of these crimes as defined by the statute setting up the international criminal tribunal involved.  The new law expands this to allow rewards when the defendant is convicted in another country or by an international tribunal of war crimes, crimes against humanity or genocide as defined by "(A) the statute of such country or tribunal, as the case may be; or (B) United States law".

EEOC Sues For Rastafarian Who Was Denied Grocery Manager Position

The EEOC has announced that yesterday it filed a Title VII religious discrimination suit against a Williamsburg, Kentucky IGA grocery store.  The suit, filed in a Kentucky federal district court, alleges that the grocery refused to hire Spiritualist Rastafarian Matthew Barnett as an assistant manager after he refused to cut his dreadlocks which he wears for religious reasons. The EEOC says that employers must consider reasonable accommodations for religious beliefs.

New Ohio Law Focuses on Zoom-Bombing and Other Disruptions of Religious Services

As reported by JTA, the Ohio legislature in its final session earlier this month gave final passage to H.B. 504 (full text) amending the ban on disturbing a lawful meeting to increase penalties and to focus specifically on disturbing religious services.  The Act now provides in part:

Disturbing a lawful meeting is a misdemeanor of the first degree if either of the following applies:

(1) The violation is committed with the intent to disturb or disquiet any assemblage of people met for religious worship at a tax-exempt place of worship, regardless of whether the conduct is within the place at which the assemblage is held or is on the property on which that place is located and disturbs the order and solemnity of the assemblage.

(2) The violation is committed with the intent to prevent, disrupt, or interfere with a virtual meeting or gathering of people for religious worship, through use of a computer, computer system, telecommunications device, or other electronic device or system, or in any other manner.

Clause (2) of this section is particularly aimed at the practice of Zoom-bombing religious services that are being held online. Zoom-bombing has especially been used during the COVID pandemic to create antisemitic disruptions of online synagogue services.  In Ohio, a first-degree misdemeanor is punishable by up to 6 months in jail and a fine of up to $1000.

Utah Supreme Court Says Order in Divorce Proceeding on Children's Religious Teaching Is Too Broad

Kingston v. Kingston, (UT Sup. Ct., Dec. 22, 2022), is a challenge by Ryan Kingston to a trial court's order in a divorce proceeding that barred him from encouraging his children to adopt the teachings of any religion without the consent of his former wife, Jessica. According to the Court:

At the time of their marriage, Ryan and Jessica were both members of the Order, also known as the Kingston Group, a polygamous religious community. Ryan remains a member of the Order today, but Jessica left the Order before the divorce.

During the divorce proceedings, the teachings and practices of the Order became a key issue as both Ryan and Jessica sought custody of their four children.

In a 3-2 decision, the Court remanded the case to the trial court for it to "craft a more narrowly tailored remedy." The majority said in part:

 [W]e agree with Jessica that the State has a compelling interest in shielding the children from psychological harm. The district court found that "[t]he Order's religious teachings jeopardize the health or safety of the children, and will cause harm to the children's welfare." Specifically, the court identified two potentially substantial harms to the children associated with Ryan's religious beliefs: (1) grooming of the children for early marriage; and (2) exposure to Order teachings that ostracize outsiders and demonize those who have left the group, including Jessica. Protecting the children from these harms is a compelling state interest....

The district court's prohibition is broader than necessary to prevent the identified potential harms to the children. The court prohibited Ryan from "encourag[ing] [the children] to adopt the teachings of any religion" without Jessica's consent. This prohibition applies broadly to "the teachings of any religion," but the court only identified specific harms associated with the Order. As written, the prohibition would prevent Ryan from teaching the children the Lord's Prayer or encouraging them to adopt the teachings of Islam. Based on a plain language reading of the prohibition, Ryan would have to seek Jessica's consent before engaging in either of these activities. The prohibition cannot be described as "narrowly tailored" when it reaches far beyond the compelling interest it is meant to address....

 Associate Chief Justice Pearce filed a dissenting opinion, joined by Justice Peterson.  They said in part:

[S]trict scrutiny is the wrong test to apply.... I would follow the Utah Code and analyze whether the district court found, by a preponderance of the evidence, real or substantiated potential harm to the child if the parent is allowed to participate in the child's religious upbringing.....

There is absolutely no evidence in the record that Ryan's objection to the district court's order is fueled by a desire to read the Quran to his children or to lead them in the Lord's Prayer....

... I respectfully dissent and would affirm the district court's order.

Top 10 Religious Liberty and Church-State Developments of 2022

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year.  My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention. The selection of top stories obviously involves a good deal of subjective judgment. Here is a somewhat different list of top stories and newsmakers from the Religion News Association, the professional association of religion journalists. I welcome e-mail comment at religionclause@gmail.com on my choices. Here are my Top Ten picks:

1. In the Dobbs decision, the Supreme Court overrules Roe v. Wade after premature leak of Court's opinion. Newly imposed abortion restrictions are challenged on Free Exercise grounds by clergy and religious organizations with pro-choice beliefs. Some states act to ensure abortion rights.

2. In Kennedy v. Bremerton School District, Supreme Court repudiates the Lemon test for Establishment Clause violations.

3. In Carson v. Makin, Supreme Court says exclusion of sectarian schools from tuition reimbursement program violates Free Exercise clause.

4. Antisemitic incidents in the U.S. increase. White House creates inter-agency group to counter antisemitism.

5. Numerous lawsuits seek religious exemptions from COVID vaccine mandates. Congress in National Defense Authorization Act orders military to rescind its mandate.

6. Congress enacts Respect for Marriage Act, codifying recognition of same-sex and interracial marriages.

7. Accommodation of transgender students and treatment of minors with gender dysphoria remain highly charged political and legal issues.

8. Battles continue over whether anti-discrimination provisions of Title IX, the Affordable Care Act, and some state laws cover discrimination on the basis of sexual orientation and gender identity, and scope of exemptions from those provisions for religious institutions.

9. In Ramirez v. Collier, Supreme Court recognizes rights of pastor to lay hands on the prisoner and audibly pray with him during his execution.

10. In Shurtleff v. City of Boston, Supreme Court holds that group's free speech rights were violated by refusing to allow it to briefly fly its Christian flag from City Hall flagpole which is open to other groups for their ceremonies.

Recent Articles of Interest

From SSRN:

• Christopher C. Lund, Second-Best Free Exercise, (Fordham Law Review, Vol. 91, p. 843 (2022)).
• Mohammad Omar Farooq, Future of Islamic Finance as an Islam-Compliant and not just a Sharia-Compliant Phenomenon, (Global Islamic Finance Report: GIFR 2022 - Futurism in Islamic Finance, Cambridge Institute of Islamic Finance, London, UK, 68-79).
• Assaf Likhovski, Top-Hatted Halakhah: Discussion of The Invention of Jewish Theocracy,  (Jerusalem Review of Legal Studies 25 (2022): 159–72).
• John Banister, On Performativity and Compelled Commercial Speech: Toward a Workable Standard,,  (Communication Law Review 2022).
• Derek W. Black, Religion, Discrimination, and the Future of Public Education, (UC Irvine Law Review, Forthcoming).
• Husnu Al Suood, An Overview of the Development of Maldivian Contract Law and its Sources, (December 13, 2022).
• Tarun Jain, Tax Exemptions for Charities: Indian Supreme Court Expounds the Law, (November 3, 2022).
• A. K. M. Raquibul Hasan, Prospects and Challenges of Issuance of Sukuk in Bangladesh: Lessons from Malaysia for Developing a Comprehensive Legal Framework for Bangladesh, (Dhaka University Law Journal, Vol: 33, Issue:1, June 2022, pp.163-184).

From SmartCILP:

• Ronit Levine-Schnur, Political Divide, Weak Property Rights, and Infrastructure Provision: An Empirical Examination of Takings Decisions in Jerusalem, 47 Law & Social Inquiry 821-856 (2022).
• Mark Fathi Massoud, Book Review. The Search for Universal Laws. The Universal Enemy: Jihad, Empire, and the Challenge of Solidarity, by Darryl Li, 47 Law & Social Inquiry 1069-1074 (2022).
• Nafay Choudhury, Book Review. Shari'a, Inshallah: Finding God in Somali Legal Politics, by Mark F. Massoud, 56 Law & Society Review 500-501 (2022).
• Anthony Paul Farley, Critical Race Theory & the Gospels, 66 St. Louis University Law Journal 721-738 (2022).

FDA Approves Label Change for Plan B Emergency Contraceptive: Not an Abortifacient

The U.S. Food and Drug Administration announced on Friday that it has approved a labeling change for the emergency contraceptive Plan B One-Step, sometimes known as the morning-after pill.  The labeling change states clearly that the medication is not an abortifacient.  The FDA says in part:

Plan B One-Step will not work if a person is already pregnant, meaning it will not affect an existing pregnancy. Plan B One-Step prevents pregnancy by acting on ovulation, which occurs well before implantation. Evidence does not support that the drug affects implantation or maintenance of a pregnancy after implantation, therefore it does not terminate a pregnancy.

The original label had been required to say in part: "this product works mainly by preventing ovulation (egg release). It may also prevent fertilization of a released egg (joining of sperm and egg) or attachment of a fertilized egg to the uterus (implantation)."

The FDA supports its conclusion that it does not affect implantation with a detailed Decisional Memorandum discussing more recent studies of the drug.

In the extensive litigation challenging rules under the Affordable Care Act that mandated health insurance policies cover contraceptive methods for women, religious objectors had pointed to Plan B as one of the medications that they considered an abortifacient because it could prevent implantation of a fertilized egg.  Also, since the Supreme Court's Dobbs case, abortion bans in some states might possibly be broad enough to cover medication that prevents implantation.

In a 2015 Memorandum, relying on research available at that time, the Catholic Medical Association rejected the use of Plan B even after a rape. AP reports on the FDA's approval of the labeling change.

DC Circuit: Marines Must Accommodate Sikh Recruits in Boot Camp

In Singh v. Berger, (DC Cir., Dec. 23, 2022), the D.C. Circuit Court of Appeals granted a preliminary injunction to two Sikh Marine Corps recruits who seek an accommodation to wear unshorn hair, beards and certain articles of faith during boot camp training. The court, relying on RFRA, said in part:

So the Plaintiffs’ likelihood of success comes down to whether the Marine Corps has demonstrated a compelling interest accomplished by the least restrictive means in refusing to accommodate their faith for the thirteen weeks of boot camp. The Marine Corps has failed to meet its burden on both fronts....

[T]he Marine Corps argues that excepting the Plaintiffs from the repeated ritual of shaving their faces and heads alongside fellow recruits, and permitting them to wear a head covering, will impede its compelling interest in forging unit cohesion and a uniform mindset during boot camp....

... Colonel Jeppe’s claimed compelling need for inflexible grooming uniformity does not stand up against the “system of exceptions” to boot camp grooming rules that the Corps has already created and that seriously “undermine[]” the Corps’ contention that it “can brook no departures” for Plaintiffs....

To sum up, Plaintiffs have demonstrated not just a likely, but an overwhelming, prospect of success on the merits of their RFRA claim. At a general level, the Government has certainly articulated a compelling national security interest in training Marine Corps recruits to strip away their individuality and adopt a team-oriented mindset committed to the military mission and defense of the Nation. But RFRA requires more than pointing to interests at such a broad level.... The Marine Corps has to show that its substantial burdening of these Plaintiffs’ religion furthers that compelling interest by the least restrictive means. That is where the Marine Corps has come up very short.... 

Becket issued a press release announcing the decision.

Court Dismisses Hindu Organization's Defamation Suit

In Hindu American Foundation v. Viswanath, (D DC, Dec. 20, 2022), the D.C. federal district court dismissed a defamation suit brought by a Hindu advocacy organization against five individuals who are critics of the current Indian government's alleged treatment of Muslims and other religious minorities. In the case, Hindu American Foundation alleged that its reputation was damaged, and it lost donations, after the publication of articles in Al Jazeera in which defendants described HAF as being sympathetic to Hindu supremacist ideology.  Defendants also criticized HAF's receipt of federal COVID relief funds. The court held that it lacks jurisdiction over four of the defendants because they failed to have sufficient connections to meet the jurisdictional requirements of the D.C. long-arm statute. As to the fifth defendant, the court held that as a limited purpose public figure, HAF needed to plead actual malice. It failed to do so.  It also concluded that defendant's statements were expressions of opinion or rhetorical hyperbole, not verifiably false statements of fact. American Bazaar reports on the decision.

President Biden Delivers Christmas Address

Yesterday President Biden delivered his Christmas Address to the Nation (full text). He said in part:

And we look to the sky, to a lone star, shining brighter than all the rest, guiding us to the birth of a child — a child Christians believe to be the son of God; miraculously now, here among us on Earth, bringing hope, love and peace and joy to the world....

The Christmas story is at the heart of the Christmas — Christian faith.  But the message of hope, love, peace, and joy, they’re also universal.

It speaks to all of us, whether we’re Christian, Jewish, Hindu, Muslim, Buddhist, or any other faith, or no faith at all.  It speaks to all of us as human beings who are here on this Earth to care for one another, to look out for one another, to love one another....

I sincerely hope ... this holiday season will drain the poison that has infected our politics and set us against one another.

I hope this Christmas season marks a fresh start for our nation, because there is so much that unites us as Americans, so much more that unites us than divides us.

Court Remands Question of Accommodating Religious Objection to COVID Testing

In In re Whitehead, (NJ App,, Dec. 22, 2022), a New Jersey state appellate court remanded to the state Civil Service Commission for further findings an appeal by a city zoning officer whose employment was terminated after she refused to be tested for COVID in order to return to work.  Plaintiff's refusal of testing was based on her religious beliefs which the court described:

She explained her refusal to undergo the test is founded on her belief the testing is required because of a fear she may be infected with COVID-19, and that fear is inconsistent with her religious belief that "God has not given us the spirit of fear." Thus, according to Whitehead, she could not, based on her religious beliefs, succumb to the fear she had COVID-19 upon which the City based its testing requirement.

The court explained its remand decision:

The ALJ determined the termination of Whitehead's employment did not violate the City's obligation under Title VII to reasonably accommodate Whitehead's religious belief because returning Whitehead to work without COVID-19 testing created an undue hardship — the risk of infecting the City's other on-site employees with COVID-19. That determination, which Whitehead does not challenge on appeal, applies solely to an accommodation — returning Whitehead to on-site work without testing — she no longer claims is reasonable, required, or appropriate...  

Whitehead, however, correctly argues the ALJ did not decide her claim the City should have allowed her to work from home as a reasonable accommodation based on her asserted religious belief.

Army Enjoined from Disciplining Plaintiffs Who Refuse COVID Vaccine on Religious Grounds

A Texas federal district court this week issued a preliminary injunction preventing the military from taking disciplinary action against ten members of the Army who object on religious grounds to complying with the Army's COVID vaccine mandate.  However, the injunction does not prevent the military from taking their vaccination status into account in making deployment, assignment and other operational decisions.  In the case, Schelske v. Austin, (ND TX, Dec. 21, 2022), the court said in part:

The Army has a valid interest in vaccinating its soldiers, and it has made the COVID-19 vaccine mandatory. But its soldiers have a right to religious freedom, which in this case includes a sincere religious objection to the COVID-19 vaccine. Which side must yield? The answer lies in the Religious Freedom Restoration Act, which applies to the military: The Army must accommodate religious freedom unless it can prove that the vaccine mandate furthers a compelling interest in the least restrictive means. The Army attempts to meet that burden by pointing to the need for military readiness and the health of its force. But ... these generalized interests are insufficient. Rather, the Army must justify denying these particular plaintiffs’ religious exemptions under current conditions. Here, with 97% of active forces vaccinated and operating successfully in a post-pandemic world, the Army falls short of its burden....

The parties’ dispute centers on whether the Army can prove that application of the vaccine mandate to these plaintiffs furthers a compelling government interest through the least restrictive means possible. At every turn, however, the evidence before the Court weighs against the Army and in favor of the plaintiffs....

Finally, the Court recognizes that much of this litigation may soon be moot. Congress recently passed the National Defense Authorization Act for Fiscal Year 2023.... If signed by the President into law, the NDAA would require the Secretary of Defense to “rescind the mandate that members of the Armed Forces be vaccinated against COVID-19” within 30 days of enactment.... Despite these developments, the Army has refused to commit to halting separation proceedings against the plaintiffs by way of any agreement that this Court can enforce.

Another Catholic Parish Sues Michigan Over Expanded Interpretation of State's Anti-Discrimination Laws

 As previously reported, in August the Michigan Supreme Court interpreted the state's civil rights law which bans sex discrimination to cover discrimination on the basis of sexual orientation or gender identity. Yesterday, a Catholic parish, including its school, as well as several parents of students in the school filed suit in a Michigan federal district court alleging that, interpreted in this manner, the employment, education and public accommodation provisions of the Elliott-Larsen Civil Rights Act violate plaintiffs' First and 14th Amendment rights.  The complaint (full text) in Sacred Heart of Jesus Parish v. Nessel, (WD MI, filed 12/22/22), alleges in part:

To comply with Michigan’s re-understood laws, Sacred Heart Parish and its school, Sacred Heart Academy, would be forced to hire faculty and staff who lead lives in direct opposition to the Catholic faith, speak messages that violate Church doctrine, and refrain from articulating Catholic beliefs in teaching its students and when advertising the school to prospective students or job applicants. All of this violates Sacred Heart’s free speech and free exercise rights. Rather than defy Catholic doctrine in these ways, Sacred Heart would shut down. 

But if Sacred Heart cannot operate consistent with its Catholic faith, the parental and free exercise rights of its families are also implicated. Parents have explicitly opted out of public schools in favor of sending their children to Sacred Heart for an authentic Catholic education where their children would never be exposed to harmful ideas and ideologies that contradict the Catholic faith. When Michigan prevents Sacred Heart from operating its school consistent with its Catholic beliefs, it also necessarily violates the fundamental parental and free exercise rights of Sacred Heart families.

ADF issued a press release announcing the filing of the lawsuit.  Earlier this month, a different Catholic parish filed a similar lawsuit.

President Speaks at White House Hanukkah Reception

On Monday, President Biden and First Lady Jill Biden hosted a Hanukkah Holiday Reception at the White House. The White House released a transcript of remarks at the reception by the Bidens and by Rabbi Charlie Cytron-Walker who last January was held as a hostage by a gunman in his Temple in Colleyville, Texas. President Biden said in part:

Tonight, we’re honored to mark another new tradition we’re establishing tonight. And that is the lighting of what will be the first-ever permanent White House menorah. (Applause.) It will also be the first Jewish artifact in the entire White House collection. (Applause.)...

This year’s Hanukkah ... arrives in the midst of rising emboldenment of antisemitism at home and, quite frankly, around the world.

I recognize your fear, your hurt, your worry that this vile and venom is becoming too normal.

As your President, I want to make this clear — as my dad would say, and many of you have said: Silence is complicity. We must not remain silent. (Applause.)

And I made no bones about it from the very beginning: I will not be silent. America will not be silent. (Applause.) I mean it....

Like this White House menorah, our commitment to the safety of the Jewish people and to the vibrancy of Jewish life that’s tightly woven into every fabric of America, it’s permanent. Permanent.

The menorah was made from historic wood beams rescued during a White House renovation by President Truman.

Creche Displays in State Capitols Are Widespread This Year

According to the Thomas More Society, nativity scenes are being displayed in most state Capitol buildings this year.  The organization's press release says in part:

Celebrations of the Savior’s birth are scheduled with 43 State Capitol Nativity Scenes across America this Christmas. The Thomas More Society and the American Nativity Scene are helping a growing number of private citizen groups across the nation to display Biblical manger scenes on government property this Christmas. State Capitols in Alaska, New York, Utah, and Virginia are scheduled to feature the traditional display of the Holy Family with Baby Jesus in the manger for the first time this year....

 “Many erroneously assume that government entities are prohibited from allowing a religious display,” explained Thomas More Society Vice President and Senior Counsel Thomas Olp. “The law is clear. Government entities may erect and maintain celebrations of the Christmas holiday – or allow citizens to do so on government property, including nativity scenes, as long as a crèche’s sole purpose is not to promote its religious content, and it is placed in context with other symbols of the season as part of an effort to celebrate the public Christmas holiday through traditional symbols. We pray that the nativity scenes of the Christmas season will help to foster a sense of unity and peace on earth.”

Tom Brejcha, Thomas More Society President and Chief Counsel, echoes the importance of displaying the nativity scenes, especially in times of social or political controversy. He stated, “The Christmas message highlights the inherent dignity of each and every human being.”

American Nativity Scene's website lists which state capitols feature creche displays, and which do not. It also contends that in addition to their religious significance, Nativity Scenes convey many secular messages:

These manger scenes are celebrations of birth, new life, and renewal and hope bound up with succeeding generations.  As well, they celebrate the beauty of the family, of mother, father and child.  That the shepherds attended the event with their animals bespeaks the natural bonds that unite all men and women, within the larger human community, and together with all other living beings, our fellow creatures. 

Massachusetts Supreme Judicial Court Says No State Constitutional Right to Physician Assisted Suicide

In Kligler v. Attorney General, (MA Sup. Jud. Ct., Dec. 19, 2022), the Massachusetts Supreme Judicial Court held that the Massachusetts state constitution does not protect a right to physician-assisted suicide.  The court said in part:

[G]iven our long-standing opposition to suicide in all its forms, and the absence of modern precedent supporting an affirmative right to medical intervention that causes death, we cannot conclude that physician-assisted suicide ranks among those fundamental rights protected by the Massachusetts Declaration of Rights. Thus, application of the law of manslaughter to physician-assisted suicide would not impinge on an individual's right to substantive due process....

Application of the law of manslaughter to physician-assisted suicide passes constitutional muster because the law is reasonably related to the State's legitimate interests in preserving life; preventing suicide; protecting the integrity of the medical profession; ensuring that all end-of-life decisions are informed, voluntary, and rational; and "protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives."

Justice Cypher filed a concurring opinion, saying in part:

I concur with the court that the plaintiffs' proposed physician-assisted suicide schema is, as a matter of right, too procedurally complex for us to adopt whole cloth..... In addition, I fully support the court's thoughtful and timely primer on substantive due process, which preserves the comprehensive approach as the proper test for identifying fundamental rights under our State Constitution.... I therefore concur in the judgment. 

However, based on the strength of our existing case law concerning end-of-life patient autonomy, in conjunction with current palliative treatments that are commensurate with physician-assisted suicide, I do "not foreclose the possibility that some applications" of our criminal statutes "may impose an intolerable intrusion on" patient freedom.... When that appropriate challenge (or challenger) does come forward, we must be ready to extend our State constitutional protections to terminally ill patients seeking to exercise what remains of their bodily autonomy.

Justice Wendlandt, joined in part by Chief Justice Budd, filed an opinion concurring in part and dissenting in part.  He said in part:

Because I agree with the court that there is no fundamental right to prescribe, or to receive a prescription for, medication to assist a terminally ill, mentally competent patient's suicide (physician-assisted suicide), I concur in the judgment as it concerns Steinbach. I also agree with the court that application of the criminal laws to physician-assisted suicide generally survives rational basis review. I write separately because, when a terminally ill, mentally competent patient approaches the final stage of the dying process, the Commonwealth's interest in criminalizing physician-assisted suicide reduces to a nullity, such that even under rational basis review, the State Constitution protects the nonfundamental right to physician-assisted suicide from application of the State's criminal laws.

WBUR News reports on the decision.

European Court Upholds France's Conviction of Journalist for Inciting Anti-Muslim Hatred

In Zemmour v. France, (EDHR, Dec. 20, 2022) (full text of decision in French), the European Court of Human Rights upheld France's conviction of a journalist for inciting discrimination and religious hatred against the French Muslim community through anti-Muslim remarks he made on a 2016 television talk show.  According to the Court's English language press release summarizing the decision, the Court found no violation of Article 10 of the European Convention on Human Rights protecting freedom of expression.  The press release says in part:

The Court was of the opinion that his remarks had not been confined to criticism of Islam but had, in view of the context of terrorist violence in which they had occurred, been made with discriminatory intent such as to call on viewers to reject and exclude the Muslim community. The Court concluded that the grounds on which the domestic courts had convicted the applicant and sentenced him to a fine, the amount of which was not excessive, had been sufficient and relevant. In conclusion the Court held that the interference with the applicant’s right to freedom of expression had been necessary in a democratic society to protect the rights of others which had been at stake in the case, and therefore there had been no violation of Article 10 of the Convention.

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.