4th Circuit: Muslim Inmate's Free Exercise Claim Rejected; Establishment Clause Claim Remanded

In Firewalker-Fields v. Lee, (4th Cir., Jan. 17, 2023), the U.S. 4th Circuit Court of Appeals affirmed the dismissal of a Muslim inmate's 1st Amendment Free Exercise claim. Plaintiff alleged that he did not have access in jail to Friday Islamic prayers. The court said in part:

Middle River had three rules in place that kept Firewalker-Fields from attending in-person Friday Prayer: no inmate led groups; no maximum-security prisoners allowed in any in-person groups; and prisoner services and classes by volunteer or donation only. Those rules are reasonably related to justifiable prison goals and therefore do not offend the Free Exercise Clause....

... [E]ach of Middle River’s policies is reasonably related to the legitimate penological purposes of security and resource-allocation; despite the jail’s policies, Firewalker-Fields still had other ways to practice his religion, even if they were not perfect; Firewalker-Fields’s preferred solutions would have impaired the jail’s safety and its efficient operation; and Firewalker-Fields failed to propose easy and obvious alternative policies that would have solved those issues while allowing more room for his religious practice. Taken together, this shows that each challenged policy is reasonably related to legitimate penological goals and are justifiable under Turner.

The court also vacated and remanded plaintiff's Establishment Clause challenge to the jail's broadcast of Christian services every Sunday on televisions throughout the facility.  Noting the Supreme Court's recent repudiation of the Lemon test and adoption of a test based on historical practice and understanding, the court said in part:

The district court should have the initial responsibility of working through Firewalker-Fields’s Establishment Clause challenge under Kennedy.

Dismissal of Title VII Suit By Teacher Fired By Catholic School Is Denied

In Ference v. Roman Catholic Diocese of Greensburg, (WD PA, Jan. 18, 2022), a Pennsylvania federal magistrate judge recommended denying a motion to dismiss filed by the Catholic Diocese in a Title VII sex-discrimination lawsuit by a Lutheran 6th-grade teacher in a Catholic school who was fired shortly after being hired when the school discovered that he was in a same-sex marriage. The Diocese had raised defenses based on Title VII's exemption for religious discrimination, the church autonomy doctrine, the ministerial exception and RFRA.

Title IX Religious Exemption Survives Constitutional Challenge

In Hunter v. United States Department of Education, (D OR, Jan. 12, 2023), an Oregon federal district court dismissed a suit brought by students who have attended a religious college or university challenging the application of the religious exemption in Title IX in a manner that allows religious colleges and universities to discriminate against LGBTQ students. Rejecting plaintiffs' equal protection claim, the court said in part:

Plaintiffs have not alleged how the religious exemption fails intermediate scrutiny. Defendants point out that the Ninth Circuit has recognized “that free exercise of religion and conscience is undoubtedly, fundamentally important.”... Exempting religiously controlled educational institutions from Title IX—and only to the extent that a particular application of Title IX would not be consistent with a specific tenet of the controlling religious organization, see 20 U.S.C. § 1681(a)(3)—is substantially related to the government’s objective of accommodating religious exercise.

The court rejected plaintiffs' Establishment Clause challenge applying the Lemon test. The court also rejected various other constitutional challenges to the exemption.

Cert. Granted To Review Title VII "Undue Hardship" Test For Religious Accommodation

The U.S. Supreme Court yesterday granted review in Groff v. DeJoy, (Docket No. 22-174, certiorari granted, 1/13/2023). (Order list). In the case, the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, held that accommodating a Sunday sabbath observer by allowing him not to report for work on Sunday would cause an "undue hardship" to the U.S. Postal Service.  Thus, failure to grant that accommodation did not violate Title VII. (See prior posting.)In the case, petitioners are asking the Supreme Court to revisit and reject the test for "undue hardship" announced in TWA v. Hardison. (cert. petition). Here is SCOTUSblog's case page for the case.

New Report on Antisemitism In U.S.

The ADL yesterday issued its annual report on Antisemitic Attitudes in America (full text).  According to the Executive Summary:

Over three-quarters of Americans (85 percent) believe at least one anti-Jewish trope, as opposed to 61 percent found in 2019. Twenty percent of Americans believe six or more tropes, which is significantly more than the 11 percent that ADL found in 2019 and is the highest level measured in decades....

Many Americans believe in Israel-oriented antisemitic positions – from 40 percent who at least slightly believe that Israel treats Palestinians like Nazis treated the Jews, to 18 percent who are uncomfortable spending time with a person who supports Israel.

New Michigan City Ordinance Permits Animal Sacrifice

 As reported by the Detroit Free Press, the Hamtramck, Michigan City Council on Tuesday by a vote of 3-2 voted to amend the city's Animal Ordinance to permit animal sacrifices on residential property. The new Ordinance (full text) provides in part:

Any person wishing to conduct an animal sacrifice for religious purposes must notify the City by reporting such intention to the Clerk’s Office at least one week prior to the date of animal sacrifice;

(1) Such person shall provide the exact date and time of animal sacrifice to the City and shall schedule a time for the City to conduct post sacrifice inspection of the site to ensure, in the opinion of the inspector, that the area was properly cleaned and sanitized after the sacrifice was concluded.

(2) Such person shall pay the City a fee, as set by city council annually, for the sanitation inspection. Such fee shall be paid at the time when such person informs the City of the sacrifice as required above.

(B) Any and all actions necessary to restrict the act of sacrifice from public viewing must be taken without exception. The public, for the purposes of this subsection, shall be defined as any individual who has not formally indicated their intention to view the animal sacrifice.

Hamtramck has a large Muslim population and all members of City Council are Muslim.  Some Muslims sacrifice animals for Eid al-Adha.

Catholic Hospital's Denial of Gender Dysphoria Procedure Is Illegal Sex Discrimination

In Hammons v. University of Maryland Medical System Corp., (D MD, Jan. 6, 2023), a Maryland federal district court held that a hospital's refusal to allow plaintiff to have a hysterectomy performed at the hospital to treat gender dysphoria was sex discrimination in violation of the Affordable Care Act's discrimination ban. The hospital was originally a Catholic hospital, and when the University of Maryland System acquired it, the purchase agreement required it to continue to abide by the Ethical and Religious Directives for Catholic Health Services promulgated by the United States Conference of Catholic Bishops. In finding discrimination, the court said in part:

It may be true that St. Joseph prohibits medical personnel from performing hysterectomies on all individuals, regardless of sex, who do not have a medical need for that surgery—i.e., individuals who seek a hysterectomy solely for the purpose of elective sterilization. However, Mr. Hammons did have a medical need for his requested hysterectomy; he was not seeking a hysterectomy for the purpose of elective sterilization.

The court also concluded that since defendant is a wholly owned subsidiary of a state actor, a RFRA defense is not available to it. It added that even if defendant is considered a private actor, a RFRA defense is not available because RFRA only applies to burdens on free exercise imposed by the government. Daily Citizen reports on the decision.

Publication Schedule

From January 9 to 22, posts on Religion Clause will be more sporadic than usual. The regular publication schedule will resume on January 23.

Recent Articles of Interest

 From SSRN:

• Joanna Wuest & Briana Last, Church Against State: How Industry Groups Lead the Religious Liberty Assault on Civil Rights, Healthcare Policy, and the Administrative State, (Journal of Law, Medicine & Ethics, Forthcoming).
• 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)).
• Tal Zarsky & Nadav S. Berman, What Is the Juxtaposition between Silicon Valley and Mount Sinai? Covenantal Principles and the Conceptualization of Platform-User Relations, (Journal of Law and Religion, Vol. 37, No. 3, 2022).
• Craig A. Stern, Just As We Imagine, (12 J. Christian Legal Thought, no. 2, 2022, at 7).
• Ido Katri, Trans Bodies, Gay Sexuality, Dysphoria, (Enticements: Queer Legal Studies (Brenda Cossman and Joseph Fischel Eds.) (NYU Press, 2024)).
• June Carbone & Naomi R. Cahn, The Court’s Morality Play: The Punishment Lens, Sex, and Abortion, (Southern California Law Review, Forthcoming).

From SmartCILP:

• Michelle LeBaron & Mage Senbel, Conflicts with Religious or Worldview Dimensions: Why They Matter and How to Engage Them, 23 Cardozo Journal of Conflict Resolution 301-332 (2022).

Idaho Supreme Court Upholds Abortion Ban

 In Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky v. State of Idaho, (ID Sup. Ct., Jan. 5, 2023), the Idaho Supreme Court in a 3-2 decision upheld three Idaho statutes banning abortions.  The majority summarized its decision in part as follows:

The Idaho Constitution does not contain an explicit right to abortion. Nevertheless, Petitioners argue that certain provisions implicitly enshrine abortion as a right entitled to heightened protection from the legislature’s broad power to regulate conduct.....

For the reasons discussed below, we cannot read a fundamental right to abortion into the text of the Idaho Constitution. 

The Inalienable Rights Clause in Article I, section 1 of the Idaho Constitution, which lists the rights to life, liberty, and property, provides the textual basis for the recognition of implicit fundamental rights. Indeed, Article I, section 21, while not purporting to be a repository of implicit rights, provides that the listing of rights in the Idaho Constitution “shall not be construed to impair or deny other rights retained by the people.” The Inalienable Rights Clause was framed at Idaho’s constitutional convention in 1889 and ratified by the people of Idaho later that same year. Thus, for us to read a fundamental right into the Idaho Constitution, we must examine whether the alleged right is so “deeply rooted” in the traditions and history of Idaho at the time of statehood that we can fairly conclude that the framers and adopters of the Inalienable Rights Clause intended to implicitly protect that right.

When we apply that test to this dispute, there simply is no support for a conclusion that aright to abortion was “deeply rooted” at the time the Inalienable Rights Clause was adopted....

Importantly, nothing about this decision prevents the voters of Idaho from answering the deeply moral and  political question of abortion at the polls....

Additionally, as explained below, we conclude that the Total Abortion Ban, 6-Week Ban, and Civil Liability Law each pass the familiar test for determining the constitutionality of most legislation: “rational-basis” review. Under that form of review, each of these laws is constitutional because it is rationally related to the government’s legitimate interest in protecting prenatal fetal life at all stages of development, and in protecting the health and safety of the mother.

Justice Zahn and Justice Stegner each filed a dissenting opinion. [Thanks to Dusty Hoesly for the lead.]

South Carolina Supreme Court Invalidates Fetal Heartbeat Abortion Ban

In Planned Parenthood South Atlantic v. State of South Carolina, (SC Sup. Ct., Jan. 5, 2023), the South Carolina Supreme Court in a 3-2 decision held that the state's Fetal Heartbeat and Protection from Abortion Act violates a woman's right to privacy protected by Art. I, Sec. 10 of the South Carolina Constitution. Each Justice wrote a separate opinion in the case. The opinions span 147 pages.  Justice Hearn, holding the law unconstitutional, said in part:

We hold that the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable, and implicates a woman's right to privacy. While this right is not absolute, and must be balanced against the State's interest in protecting unborn life, this Act, which severely limits—and in many instances completely forecloses—abortion, is an unreasonable restriction upon a woman's right to privacy and is therefore unconstitutional....

The State unquestionably has the authority to limit the right of privacy that protects women from state interference with her decision, but any such limitation must be reasonable and it must be meaningful in that the time frames imposed must afford a woman sufficient time to determine she is pregnant and to take reasonable steps to terminate that pregnancy. Six weeks is, quite simply, not a reasonable period of time for these two things to occur, and therefore the Act violates our state Constitution's prohibition against unreasonable invasions of privacy.

Chief Justice Beatty concurred in a separate opinion, saying in part:

Although our determination turns on the right to privacy, I believe the Act is also void ab initio and denies state constitutional rights to equal protection, procedural due process, and substantive due process. Therefore, the Act violates our state constitution beyond a reasonable doubt. For the foregoing reasons, I concur with Justice Hearn's lead opinion regarding the right to privacy, and I write separately to address all of Petitioners' issues because our decision today will likely not be the final resolution of the quandary....

When life begins is a theoretical and religious question upon which there is no universal agreement among various religious faiths. In fact, because there are differing views on abortion and when life begins among religious faiths, challenges are already being made to some abortion laws on the basis they violate religious freedom by elevating one faith's views over the views of others. The question of when life begins is distinguishable from the constitutional questions raised here regarding whether a woman has the right to make her own medical decisions regarding her reproductive health (in consultation with her medical provider and based on scientific evidence). At its core, the question the Court faces today is can the government—by force of law—force a woman to give birth without her consent? As will be discussed, for a reasonable period of time, a woman, rather than the government, retains this important right to choose whether to become a mother.

Justice Few filed an opinion concurring only in the result, saying in part:

Political questions surrounding abortion have produced as much impassioned disagreement as any issue of our time. When those political questions intersect with questions of law, advocates on both sides of the political questions seem to believe that the more fervently they hold their political views, the more likely those views will become someone else's legal views. We have been asked in this case to ignore well-established principles of law in order to uphold the Fetal Heartbeat Act, and to create new and novel principles of law to strike down the Act. The parties who made these requests derive their positions not from sound legal reasoning, but from fervent political advocacy. These well-intentioned parties act on the basis of their politics. The Court must act on the basis of law. The article I, section 10 prohibition on "unreasonable invasions of privacy" is a principle of law. The six-week ban in the Fetal Heartbeat Act violates the provision because—as a matter of law—it is an unreasonable intrusion into a pregnant woman's right of privacy. The Fetal Heartbeat Act is, therefore, unconstitutional.

Justice Kittredge filed a dissenting opinion, saying in part:

Petitioners' due process claim fails. Abortion is not "deeply rooted" in our state's history, and it could not be reasonably suggested that abortion is "implicit in the concept of ordered liberty." To the contrary, it is the regulation and restriction of abortion that is deeply rooted in our state's history....

Justice Few and I have a fundamental difference of opinion on the reach and meaning of the state constitutional privacy provision. Justice Few views the privacy provision expansively; I view the privacy provision in line with its understood meaning at the time it was adopted, along with caselaw interpreting the provision. Yet Justice Few and I agree on a person's general privacy interest in his or her medical autonomy. It is the source of that privacy interest where we part company. Justice Few finds the source of the privacy interest in article I, section 10—the privacy provision. I believe this privacy interest in healthcare decisions is embedded in the due process concept of liberty from our nation's and state's foundings. That is why I find the source of that interest in article I, section 3—due process. This position aligns with my view that the most basic forms of privacy arise from natural law....

Justice James filed a dissenting opinion, agreeing in part with Justice Kittredge, saying in part:

Like Justice Kittredge, I would uphold the Act. However, I disagree with Justice Kittredge on one point: I would hold the privacy provision in article I, section 10 provides citizens with heightened Fourth Amendment protections, especially protection from unreasonable law enforcement use of electronic devices to search and seize information and communications. It goes no further.

CNN reports on the decision.

"Ministerial Exception" Doctrine Applies to Claims by Kosher Wine Supervisor

In Markel v. Union of Orthodox Jewish Congregations of America, (CD CA, Jan. 3, 2023), a California federal district court held that the "ministerial exception" doctrine bars claims rooted in the California Labor Code brought against a synagogue organization by a mashgiach (kosher food supervisor) formerly employed by it. The court found that the Orthodox Union meets the requirements for a religious organization and that Markel should be categorized as a "minister", saying in part:

[T]he OU designated Markel as a head mashgiach at the Delano winery, and he was tasked with overseeing the kosher production of wine. Although a mashgiach may not be a "minister in the usual sense of the term—[he] was not a pastor or deacon, did not lead a congregation, and did not regularly conduct religious services"—Markel's title and assigned duties as mashgiach satisfy the first Hosanna-Tabor factor.... As mashgiach, Markel was integral to the koshering of wine for use by Orthodox Jews and the greater Jewish community, and his efforts were necessary in fulfilling an important function of the Jewish faith.

Second, Markel's position "reflected a significant degree of religious training followed by a formal process of commissioning." ...

Third, Markel's duties as a head mashgiach reflected the religious mission of the OU and the importance of supervising the kosher production of wine for the Orthodox Jewish faith.

Vaccine Mandate Without Religious Exemption Is Upheld

In Spivack v. City of Philadelphia, (ED PA, Jan. 4, 2023), a Pennsylvania federal district court held that Philadelphia's District Attorney Lawrence Krasner did not violate the religious rights of an Orthodox Jewish Assistant District Attorney when he refused to grant her an exemption from the Office's COVID vaccine mandate. The mandate, in its final form, offered no religious exemptions and only limited medical exemptions. According to the court, in seeking a religious exemption plaintiff submitted a letter from her rabbi that explained:

congregation members are forbidden from (1) benefitting from the live dissection of animals; (2) using hybridization technologies; (3) "self-flagellating"; (4) exposing themselves to unnecessary risk (Spivack's "natural immunity" to the virus made vaccination unnecessary); and (5) injecting a product whose precise ingredients are undisclosed.... Neither Krasner nor the City disputes that Spivack's sincerely holds her religious beliefs.

Rejecting plaintiff's First Amendment challenge, the court said in part:

Spivack offers no evidence that Krasner's exemption changes "stemmed from religious intolerance, rather than an intent to more fully ensure that employees [at the DAO] receive the vaccine in furtherance of the State's public health goal."...

[T]he medical exemption Krasner finally approved was for an objectively and narrowly defined category of persons: non-union DAO employees for whom a vaccination could be life-threatening. This is not the kind of exemption that undermines the Policy's general applicability....

The DAO ... "seriously considered substantially less restrictive alternatives" in the hope that they could achieve the Office's compelling interest-- "trying to keep people as safe as we can."... Concluding that these alternatives were inadequate, the Office required vaccinations for all non-union employees save one.

In these circumstances, the DAO Vaccine Policy survives strict scrutiny review.

NY Governor Vetoes Bill on Notifying Defendants of Right to Secular 12-Step Programs

On Dec. 23, New York Governor Kathy Hochul vetoed New York Senate Bill 7313A which would have required courts, in imposing alcohol or substance abuse treatment on a defendant, to inquire if the defendant has religious objections to the program, and if the defendant does, to identify an alternative nonreligious treatment program for the defendant.  As reported by Only Sky, the veto was met with substantial criticism.  In her Veto Memo, Governor Hochul explained her veto in part as follows:

While I support the right to a substance use treatment program that will be most effective, codifying the right to object to mandated attendance at a religious substance use treatment program sets an uncomfortable precedent in that it may invite future selective legislative efforts to inject a similar burden upon judges to inform litigants of their rights to opt out of other court mandates. This process may raise questions whether litigants enjoy rights to opt out of other mandates on religious grounds where the underlying statutes have not been amended to codify those rights. Given that defendants already have the right to request nonreligious treatment, this bill is unnecessary and imposes an overly rigid burden on courts and judges.

Court Says Idiosyncratic Personal Religious Beliefs May Not Support Religious Accommodation

In In re Moscatelli v. New York City Police Department, (NY Cnty. Sup. Ct., Dec. 22, 2022), a New York trial court annulled an administrative determination that denied a New York City Detective a religious exemption from the city's COVID vaccine mandate. The court held that the administrative determination was arbitrary and capricious, saying that "the NYPD EEOD’s determination is a prime example of a determination that sets forth only the most perfunctory discussion of reasons for administrative action." The court went on, however, to say:

The court’s conclusion in this regard should not be construed as a ruling that, had the petitioner’s stated reasons for his request for an exemption, and his discussion of religious doctrine, properly been analyzed and explained by the Panel or the NYPD EEOD in the challenged decisions, those contentions would have constituted a proper basis for an exemption. That would have required a forthright engagement by those agencies with the religious contentions and arguments raised by the petitioner.... It would also have required some actual inquiry ... into the petitioner’s prior behavior concerning vaccines and medications. Had those agencies taken that approach, their determinations might have survived judicial scrutiny, as the petitioner provided scanty proof that the rejection of vaccinations or medications that have been developed, improved, or tested using fetal stem cells is an accepted tenet of Catholic doctrine, as opposed to a personal interpretation of doctrine by a lay person or even a few members of the clergy....

[T]he petitioner ... has not demonstrated that his conclusions about sin, the use of embryonic stem cells in the development and improvement of various vaccinations and medications, and the alleged proscription of desecrating the human body via any genetic manipulation that mRNA vaccinations might generate, are established Catholic doctrine, or merely his personal interpretation of his obligations as a practicing Catholic....  Nor has he demonstrated that he had previously declined to be treated with [other] drugs ... which were either developed, improved, or recently tested by their manufacturers for adverse side effects using stem cells from aborted fetuses.

Survey Shows Religious Affiliations of Members of New Congress

Pew Research Center has released its survey of the religious affiliations of members of the incoming 118th Congress. Titled Faith on the Hill, among the findings are that of the 469 total members of the House and Senate, 303 are Protestant, 148 are Catholic, 33 are Jewish, 9 are Mormon, 8 are Orthodox Christian. Among the faiths that have 3 or fewer members, 3 identify as Muslim, 2 as Hindu, and 1 as Messianic Jewish.  The full report has additional specifics.

Biden Renominates Persons To Be Commissioner and General Counsel of EEOC

With the convening of the 118th Congress yesterday, President Biden resubmitted a large number of nominations that had not been acted upon by the Senate last year. Among them were the nomination of Kalpana Kotagao to be a Member of the Equal Employment Opportunity Commission for a term expiring July 1, 2027, and Karla Ann Gilbride to be General Counsel of the EEOC for a four-year term. The EEOC enforces federal laws barring employment discrimination on the basis of race, color, religion, national origin, sex (including pregnancy, gender identity, and sexual orientation), age, disability or genetic information.

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.