Religion Clause

Thursday, February 16, 2023

DOJ Enters Consent Decree with Lansing, MI In Suit Over Firing of 7th Day Adventist Employee

The U.S. Department of Justice announced yesterday that it has entered into a consent decree with the city of Lansing, Michigan to settle a Title VII religious accommodation and retaliation lawsuit that alleged the city fired a Seventh Day Adventist police officer rather than accommodating her Sabbath observance. Under the terms of the consent decree, which must still be approved by the court, Lansing will develop religious accommodation and retaliation policies, and trainings on them. It will also pay the former employee $50,000 in back pay and compensatory damages. UPI reports on the settlement.

Church Can Move Ahead Against County in Suit on Covid Restrictions

In Abiding Place Ministries v. Newsom, (SD CA, Feb. 14, 2023), a California federal district court allowed a church to move ahead with certain of its claims against San Diego County for enforcing Covid restrictions against public gatherings. The court held that the county's public health officer had qualified immunity against the damage claims because "there was no clear precedent in March or April 2020 that would have put every reasonable official on notice that promulgating orders restricting in person religious gatherings to slow the spread of the COVID-19 virus was clearly and definitively unconstitutional."

The court however allowed plaintiff to move ahead with Free Exercise, Freedom of Assembly, Establishment Clause, Free Speech and Equal Protection claims against the County. The court said in part:

The County threatened enforcement, penalties, and fines if Plaintiff did not comply with the County Order.... Plaintiff alleges this action by the County “forced the Church’s members to remain away from church against their will, under threat of punishment,,,,” [T]he allegations of the FAC regarding the County’s alleged unconstitutional policy is sufficient overcome the County Defendants’ argument that it cannot be liable under Monell. Accordingly, the County Defendants’ motion to dismiss is DENIED on this ground.....

[The FAC] alleges the County’s Orders and Defendants’ enforcement “had the primary effect of inhibiting religious activity” and caused “excessive government entanglement with religion.” ... Plaintiff contends its religious services exempted from gatherings were treated differently than other public gatherings.... At this stage of the pleadings, the County Defendants’ motion to dismiss the second cause of action is DENIED....

Whatever level of scrutiny is applied, Plaintiff has alleged they were prohibited from engaging in protected speech and assembling in person for the purpose of worship while other gatherings promoting non-religious speech were permissible.... Taking those allegations as true, Plaintiff has plausibly alleged claims for violations of the First Amendment’s freedom of speech and freedom of assembly clauses....

Plaintiff contends Defendants “intentionally and arbitrarily categorized individuals and conduct as either ‘essential’ or ‘non-essential.’”... At the pleading stage, Plaintiff has alleged sufficient facts to state a claim for violation of the Equal Protection clause....

Ministerial Exception Bars Disability Discrimination Suit Against Zen Center

In Behrend v. San Francisco Zen Center, Inc., (ND CA, Feb. 14, 2023), a California federal district court dismissed on ministerial exception grounds a disability discrimination suit brought against a Zen Center by plaintiff who was participating in the Center's Zen Buddhism practice program. The program included both a "formal practice" (meditations, services, educational programs) and a "work practice" (cooking, dishwashing, bathroom and guest room cleaning, ringing bells) component. Finding that the ministerial exception applied, the court said in part:

[B]oth the formal practice and the work practice, “lie[s] at the very core of the mission of” SF Zen Center. Guadalupe, 140 S. Ct. at 2064. And so, drawing all reasonable inferences in Mr. Behrend’s favor, every reasonable trier of fact would be compelled to find his position implicates the fundamental purpose of the ministerial exception. The Work Practice Apprentice position was undisputedly a residential religious training program, and work practice was undisputedly a part of that religious training. Work as part of learning to practice the faith and work as part of training to lead the faith implicate the same fundamental purpose of the exception.

Wednesday, February 15, 2023

New York's Hateful Conduct Law Violates 1st Amendment

In Volokh v. James, (SD NY, Feb. 14, 2023), a New York federal district court issued a preliminary injunction barring enforcement of New York's Hateful Conduct Law against social media platforms that are plaintiffs in the case. The court found that plaintiffs were likely to succeed in both their facial and their "as applied" free speech challenges. The law defines hateful conduct as:

the use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.

It goes on to provide:

A social media network that conducts business in the state, shall provide and maintain a clear and easily accessible mechanism for individual users to report incidents of hateful conduct. Such mechanism shall be clearly accessible to users of such network and easily accessed from both a social media networks' application and website, and shall allow the social media network to provide a direct response to any individual reporting hateful conduct informing them of how the matter is being handled.

Each social media network shall have a clear and concise policy readily available and accessible on their website and application which includes how such social media network will respond and address the reports of incidents of hateful conduct on their platform.

The court concluded in part:

The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal....

[T]he law requires that social media networks devise and implement a written policy—i.e., speech....

Similarly, the Hateful Conduct Law requires a social media network to endorse the state’s message about “hateful conduct”.... To be in compliance ..., a social media network must make a “concise policy readily available and accessible on their website and application” detailing how the network will “respond and address the reports of incidents of hateful conduct on their platform.”... Implicit in this language is that each social media network’s definition of “hateful conduct” must be at least as inclusive as the definition set forth in the law itself....

[Thanks to Volokh Conspiracy for the lead.]

Canadian Church Not in Contempt for Violating Covid Restrictions

In New Brunswick v. His Tabernacle Family Church Inc., (KB NB, Feb. 3, 2023), a trial court in the Canadian province of New Brunswick refused to hold a church in contempt for a violation of Covid restrictions because it was not unequivocally clear that the church knew it was in violation of a previous consent decree. The church, after signing a consent decree, moved its services to a commercial tent in order to avoid restrictions on gatherings in "public indoor spaces." Initially the sides of the tent were raised, but as weather became colder, the church lowered the sides. The Province contended that once the sidewalls of the tent were down, the tent became an enclosed space. The court said in part:

The Applicant was aware that initially the Respondents were using the commercial tent with the side walls up. My understanding of the Applicant's position is that such activity would not be in violation of the Mandatory Order as it relates to "public indoor spaces." However, once all four side walls of the tent were down, the Applicant was of the view that the Mandatory Order had been breached. At a minimum, it was incumbent on the Applicant to advise the Respondents at what point they would be in breach of the Mandatory Order.... [T]here is a point at which the use of the commercial tent becomes an "enclosed space". However, as I write this decision, it is unclear to me when that occurs and counsel for the Applicant were unable to provide a clear answer to the question.... [T]he court struggles to understand how the Respondents were to know....

Fox News reports on the decision.

Tuesday, February 14, 2023

Denial of NYPD Officer's Religious Objection to Vaccination Was Arbitrary and Capricious

In Grullon v. City of New York, (NY County Sup. Ct., Feb. 3, 2023), a New York state trial court held that the New York Police Department's denial in internal appeals of a police officer's religious objections to the Department's Covid vaccine mandate was arbitrary and capricious. The court said in part:

[D]espite Petitioner's detailed submission, the Appeals Panel failed to even mention any of Petitioner's arguments, let alone refute them as being non-religious in nature or not sincerely held beliefs. The decision also failed to mention NYPD's underlying decision denying Petitioner's application or the basis of the decision including the reasons listed on the checked boxes. The decision also failed to mention that it was affirming NYPD's denial and that it agreed with any of the reasons for which the underlying denial was based. Simply, the denial of the appeal is devoid of any explanation, reasoning, or support for its determination that Petitioner's request for a reasonable accommodation did not meet criteria. The Appeals Panel failed to state what the criteria was for obtaining a reasonable accommodation, it failed to include which criteria Petitioner's request failed to satisfy, or any details or support for its determination. Without any explanation or details, the purported reason provided that it did not meet criteria is tantamount to no reason at all.

The court concluded that the officer is entitled to employment with a reasonable accommodation of weekly Covid testing.

Monday, February 13, 2023

Saturday, February 11, 2023

South Dakota Passes Law Banning All Gender-Affirming Treatments For Minors

The South Dakota legislature last week gave final passage to House Bill 1080 (full text) which prohibits healthcare professionals from providing either drug, hormonal or surgical treatments to minors for the purpose of altering the appearance of the minor's sex or validating a minor's perception of their sex that is inconsistent with the biological indication of their gender. The bill specifically includes a ban on administering drugs that delay puberty for minors. Minors currently receiving drug or hormonal treatments for gender dysphoria must be weaned off their medication by Dec. 31, 2023. According to CNN, Gov. Noem will sign the bill into law.

Friday, February 10, 2023

National Archives Sued for Requiring Visitors to Remove Pro-Life Apparel

Suit was filed this week in the D.C. federal district court by three anti-abortion proponents who visited the National Archives on the day of the March for Life in Washington. The complaint (full text) in Tamara R. v. National Archives and Records Administration, (D DC, filed 2/8/2023) alleges in part:

5. While in the National Archives, Plaintiffs were subject to a pattern of ongoing misconduct by federal government officials, specifically National Archives security officers, Defendants John Does and Jane Doe, who targeted Plaintiffs and intentionally chilled their religious speech and expression by requiring Plaintiffs to remove or cover their attire because of their pro-life messages.

6. This case seeks to protect and vindicate Plaintiffs’ fundamental and statutory rights under federal law, the First and Fifth Amendments to the United States Constitution, and the Religious Freedom Restoration Act (“RFRA”).

American Center for Law and Justice issued a press release announcing the filing of the lawsuit. A similar suit was filed against the National Air & Space Museum earlier this week. (See prior posting.)

Federal Circuit Hears Arguments By Organization Seeking "Church", But Not Non-Profit, Tax Status

The Court of Appeals for the Federal Circuit heard oral arguments on Wednesday in an unusual appeal, Alearis, Inc. v. United States. (Audio of full oral arguments.) In the case, the U.S. Court of Federal Claims dismissed a challenge by Alearis to the refusal by the Internal Revenue Service to pass on its application to classify it as a "church". (Alearis, Inc. v. United States, (Ct. Fed. Cl., Jan. 11, 2022)). "Church" status would exempt the organization from various restrictions otherwise imposed on "private foundations." IRS forms require organizations seeking classification as a church to first apply on Form 1023 for an exemption as a non-profit organization under Section 501(c)(3). Alearis says it does not seek non-profit status, only "church" status. It contends that completing Form 1023 would violate its religious tenets, presumably because it would require disclosure of elements of the religion that its doctrines require to be kept secret. The Court of Federal Claims opinion described Alearis as follows:

Plaintiff, Alearis, Inc., is an organization incorporated in the state of Delaware. Its sole member, “the Church,” was “founded at time immemorial when the Old Ones placed the Game into ecclesiastical trust for such purpose.” Plaintiff is “organized exclusively for religious purposes to perform or carry out the functions of the Church.”

Student Loses Free Exercise Challenge To University's COVID Vaccine Mandate

In Collins v. City University of New York, (SD NY, Feb. 8, 2023), a New York federal district court rejected a student's claims that his free exercise, equal protection and procedural due process rights were violated when he was denied a religious exemption from City University's COVID vaccine mandate. In rejecting the student's free exercise claim, the court said in part:

As established by recent Second Circuit case law, the Vaccination Policy is neutral, generally applicable, and easily passes rational basis review.

Bishop Must Testify in Divorce Case with Millions of Dollars at Stake

L.M. v. M.A., (NY County Sup. Ct., Feb. 6, 2023), is a decision by a New York state trial court refusing to quash a subpoena that orders a Coptic Orthodox Church Bishop to testify in a divorce action. At issue is whether the parties to the divorce action were ever married. If they were, the wife may share in millions of dollars of assets in her claims for equitable distribution of marital property and spousal support. The court explains:

The parties here disagree about whether they were married in 2017, with plaintiff stating that they were married, and defendant stating that the Bishop "blessed" their relationship, but did not marry them. The parties agree that their infant son was baptized, as planned.... The parties also agree that Plaintiff mother L.M., who had previously been baptized by another church ... was then baptized in front of many witnesses in the church in an unplanned ceremony immediately following the child's baptism. What occurred next is the crux of the parties' dispute. Defendant father M.A. asserts that the Bishop, the subject of the instant subpoena, who had conducted the two baptisms, then proceeded to perform a family blessing. Plaintiff mother, on the other hand, claims that the Bishop offered to marry the parties ... and that he then performed the parties' previously unplanned wedding ceremony.... The Bishop performed the ceremonies in a combination of the English, Arabic and Coptic languages and most of the guests, all of whom had only been invited to the child's baptism, were not sure whether or not the final ceremony was a marriage ceremony....

As the Bishop has refused to testify as to which ceremony he performed, allegedly because his religious conviction prevents him from testifying in a civil action involving church members, and the parties and their witnesses have testified to diametrically conflicting views as to which ceremony took place, the Court and the parties have all asked the Bishop to testify. Defendant served a valid subpoena upon the Bishop and the Bishop ... has moved to quash the subpoena, stating through counsel and an affidavit from a Coptic theologian, that it is contrary to the tenets of the religion for the Bishop to testify in civilian court "brother against brother."

The court however refused to quash the subpoena, saying in part:

[T]he Court does not have a sufficient factual basis to find that either (i) Bishop A.B. personally has a religious belief that he cannot come into a civilian court to testify "brother against brother," or that (ii) even if he had such a belief, that it is applicable here, where he is not being asked to testify against a co-religionist but instead to describe a public factual event, and both parties (the only people who could plausibly be considered to be a person "against" whom he is testifying) are instead asking him to testify about those facts.....

In a lengthy discussion, the court went on to say that even if this did pose a 1st Amendment issue, there was no violation here.

Thursday, February 09, 2023

2nd Circuit Hears Arguments on Religious Objections to NYC Employee Vaccine Mandate

The U.S. 2nd Circuit Court of Appeals heard oral arguments yesterday in New Yorkers For Religious Liberty, Inc. v. The City of New York. (Mp3 audio of full oral arguments.) At issue are 1st and 14th Amendment challenges to New York City's public employee COVID vaccine mandate by employees with religious objections to the vaccines. (See prior posting). ADF has links to some of the pleadings filed in the case.

2nd Circuit Denies En Banc Review in Church Autonomy Case

In Belya v. Kapral, (2d Cir., Feb. 8, 2023), the U.S. 2nd Circuit Court of Appeals denied en banc review of a 3-judge panel decision which held that the collateral order doctrine does not allow appeal of an interlocutory order rejecting a church autonomy defense. The defense was raised in an action in which plaintiff contended that he was defamed when defendants publicly accused him of forging a series of letters regarding his appointment as Bishop of Miami in the Russian Orthodox Church Outside Russia. Judge Lohier, joined by Judges Lee, Robinson, Nathan and Merriam, filed an opinion concurring in the denial of review, saying in part:

[T]he panel’s decision regarding appellate jurisdiction at this stage in the case poses no threat to the church autonomy doctrine, which has thrived without help from the expansion of the collateral order doctrine that the dissent proposes.

Senior Judge Chin filed a statement in support of denying review, saying in part:

While the church autonomy doctrine provides religious associations with "independence in matters of faith and doctrine and in closely linked matters of internal government," ... it does not provide them with "a general immunity from secular laws"...

Judge Cabranes dissented, citing the exceptional importance of the issues involved.

Judge Park, joined by Chief Judge Livingston and Judges Sullivan, Nardini and Menashi, filed a dissenting opinion, saying in part:

This case arises from a minister’s suspension by his church. The church autonomy doctrine, which is rooted in the Religion Clauses of the First Amendment, generally requires courts to stay out of such matters. But the panel decision leaves the church defendants subject to litigation, including discovery and possibly trial, on matters relating to church governance. This imperils the First Amendment rights of religious institutions. Denials of church autonomy defenses should be included in the narrow class of collateral orders that are immediately appealable.

Reuters reports on the decision.

Ministerial Exception Doctrine Requires Dismissal of Jewish Teacher's Defamation Suit

In Hyman v. Rosenbaum Yeshiva of North Jersey, (NJ Super., Feb. 8, 2023), a New Jersey state appellate court held that the ministerial exception doctrine required dismissal of a defamation suit brought by a rabbi who was an elementary school Judaic studies teacher at an Orthodox Jewish school. An investigation by an outside law firm employed by the school concluded that the rabbi had inappropriately touched 5th and 6th grade female students in his classes. The school terminated the rabbi's employment and, after consulting halachic authorities, e-mailed a letter to school parents informing them that the rabbi was terminated because his conduct violated the Orthodox Jewish standards of conduct set out in the school's Staff Handbook. According to the court:

The letter was spread throughout the entire school community and similar Jewish communities. Additionally, plaintiff's picture appeared on Jewish websites such as "Frums Follies" and "Lost Messiah," and the allegations were disseminated by bloggers. As a result, plaintiff was allegedly branded as a pedophile among the Jewish community, which affected any possibility of him obtaining future employment in education.

In affirming the dismissal of the rabbi's defamation suit, the court concluded that the ministerial exception doctrine applies to more than just employment discrimination lawsuits. It said in part:

We ... conclude that the ministerial exception applies to bar tort claims, provided (1) the injured party is a minister formerly employed by a religious institution and (2) the claims are related to the religious institution's employment decision.

Wednesday, February 08, 2023

In Israel, Jerusalem Municipality Places Tax Lien on Vatican-Owned Guest House

Times of Israel reports that the Jerusalem Municipality has placed a lien on the bank accounts of the Vatican-owned Notre Dame of Jerusalem Center. The Center contains a guest house with rooms and suites for travelers, a chapel, restaurants and other facilities. Municipal authorities say that the Center owes $5 million in back taxes, contending that it operates as a regular hotel. The Vatican says it is a non-profit organization serving Christian pilgrims. The paper explains in part:

Religious institutions in Israel, including churches and monasteries, are exempt from paying property tax. However, in recent years, Israel has sought to come to an agreement with the Vatican that would place Church-owned commercial enterprises — like hotels and coffee shops — under taxation.....

The Church’s position is that since the sides have not come to a final agreement, the existing arrangement in which no properties are taxed should remain in force.

The state has not fought this claim, but in 2018, the Jerusalem municipality decided — citing the legal opinion of Gabriel Hallevy, whom it described as an international law expert — that the exemption for churches applies only to properties used “for prayer, for the teaching of religion, or for needs arising from that.”

The church argues that the guest house functions as a religious institution, and should be exempt from the taxes....

Court Tells City to Negotiate Damages After Its Wrongful Arrest of "Psalm Sing" Protesters Against Covid Restrictions

In Rench v. City of Moscow, (D ID, Feb. 1, 2023), an Idaho federal district court refused to dismiss a suit by three plaintiffs who were arrested for violating a COVID Public Health Emergency Order requiring masking or social distancing in public settings. The Order was issued pursuant to an Ordinance that excluded expressive and associative activity protected by the 1st Amendment if the activity was not specifically prohibited in the Public Health Order. Plaintiffs participated in a local church's "psalm sing" to protest the Order. In making the arrests, authorities overlooked the exclusion for 1st Amendment activity. Eventually the city moved to dismiss the case, but not before plaintiffs incurred significant legal expenses, The court said in part:

The City’s Code could not be more clear: Under a plain reading of the Order in conjunction with the Ordinance, all expressive activity was excluded from the mask or distance mandate because such conduct was not explicitly addressed in the Order itself. In other words, during the relevant time period, those participating in expressive or associative conduct were not required to mask or distance. Plaintiffs should never have been arrested in the first place, and the constitutionality of what the City thought it’s Code said is irrelevant.....

Given that Plaintiffs were wrongfully arrested, the City indisputably erred in interpreting its own Code, the City consequently misadvised its officers as to the Code’s application, and Plaintiffs are so far reasonable in their damages requests, this case should not need to see the inside of a courtroom. It would behoove everyone involved to take a step back from their respective positions and prepare to negotiate in good faith.

Christian Post reports on the decision.

Supreme Court Review Sought in Ministerial Exception Case

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in Faith Bible Chapel International v. Tucker, (cert. filed 2/3/2023). In the case, the U.S. 10th Circuit Court of Appeals by a vote of 6-4, denied en banc review of a panel decision which held that interlocutory appeals from the denial of a ministerial exception defense are not permitted. (See prior posting.) In the case, a former high school teacher and administrator/ chaplain contends that he was fired for opposing alleged racial discrimination by a Christian school. The petition for review frames the Questions Presented in part as follows:

Whether the First Amendment’s “ministerial exception” should be understood as an immunity from judicial interference in church employment decisions falling within the exception, or instead as a mere defense against liability.

WORLD reports on the petition. Becket Law has additional background on the case.

Catholic School Students Sue Air & Space Museum for Barring Pro-Life Apparel

Suit was filed this week in the D.C. federal district court by or on behalf of eleven South Carolina Catholic high school students against the National Air and Space Museum and seven members of its staff alleging that the students were required to remove their hats which carried a pro-life message during their visit to the Museum. The students visited the Museum after participating in the D.C. March for Life event. The complaint (full text) in Kristi L. v. National Air and Space Museum, (D DC, filed 2/6/2023), alleging violations of the 1st and 5th Amendments and RFRA, states in part:

Plaintiffs were subjected to a pattern of ongoing misconduct ... which included targeting, harassment, discrimination and, ultimately, eviction from NASM simply because they wore blue hats with the inscription, “Rosary Pro-Life.”...

Defendants’ restriction on Plaintiffs’ speech is content and viewpoint-based and demonstrates a concerted effort to single out, embarrass, intimidate, exclude, and ultimately silence the message expressed by Plaintiffs in wearing their “Rosary Pro-Life” hat....

The disparate treatment of Plaintiffs based on their viewpoints was a result of a discriminatory purpose on the part of Defendants...

Defendants’ restriction on Plaintiffs’ expressive religious activity as set forth in this Complaint imposes a substantial burden on Plaintiffs’ religious exercise in violation of RFRA....

American Center for Law & Justice issued a press release announcing the filing of the lawsuit.

5th Circuit Hears Oral Arguments in Navy SEAL's Suit Seeking COVID Vaccine Exemption

The U.S. 5th Circuit Court of Appeals on Monday heard oral arguments in U.S. Navy SEAL's 1-26 v. Biden, (Docket No. 22-10077, argued 2/6/2022) (audio recording of full oral arguments). In the case, a Texas federal district court issued preliminary injunctions barring the U.S. Navy from imposing its COVID-19 vaccine mandate on Navy service members who sought religious exemptions from the requirement. (See prior postings 1 and 2). Politico reports on the oral arguments.

Tuesday, February 07, 2023

Judge Asks for Briefing on Whether 13th Amendment Protects Abortion Rights

In United States v. Handy, (D DC, Feb. 6, 2023), a D.C. federal district court refused to dismiss a criminal case charging ten defendants with conspiracy to block access to a Washington, D.C. abortion clinic. The court said in part:

In part, Defendant moves to dismiss the Superseding Indictment based on the Supreme Court's statement in Dobbs v. Jackson Women's Health Org. ... that “the Constitution does not confer a right to abortion.”... [I]t appears that Defendant’s constitutional argument is predicated on the false legal premise that the predicate statute at issue in the Superseding Indictment only regulates access to abortion. In fact, it regulates a broad category of “reproductive health services,” including, among other things, “counselling or referral services.” See 18 U.S.C. § 248(5). Nevertheless, to the extent that Defendants seek resolution of this matter via a constitutional holding, the Court will require additional briefing....

Here, the “issue” before the Court in Dobbs was not whether any provision of the Constitution provided a right to abortion. Rather, the question before the Court in Dobbs was whether the Fourteenth Amendment to the Constitution provided such a right.... [I]n consideration of the Supreme Court’s longstanding admonition against overapplying its own precedent, it is entirely possible that the Court might have held in Dobbs that some other provision of the Constitution provided a right to access reproductive services had that issue been raised. However, it was not raised.

Of those provisions that might contain some right to access to such services, the Thirteenth Amendment has received substantial attention among scholars and, briefly, in one federal Court of Appeals decision. E.g., Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480 (1990); Jane L. v. Bangerter, 61 F.3d 1505, 1514-15 (10th Cir. 1995). Therefore, and to ensure the correct and just disposition of this criminal action, the parties shall address in their forthcoming briefing: (1) whether the scope of Dobbs is in fact confined to the Fourteenth Amendment and (2) whether, if so, any other provision of the Constitution could confer a right to abortion as an original matter....

Politico reports on the court's Order.

Monday, February 06, 2023

Pope Francis Again Speaks Out Against Criminalization of Homosexuality

Yesterday Pope Francis returned from his visit to South Sudan. On the flight back, he was joined by the Archbishop of Canterbury and the Moderator of the Church of Scotland for a joint press conference. (Full text). In response to a question from a Radio France reporter, the Pope reiterated his opposition to the criminalization of homosexuality, saying in part:

The criminalization of homosexuality is an issue that must not be allowed to pass by. It is estimated that, more or less, fifty countries, in one way or another, promote this kind of criminalization - they tell me more, but let's say at least fifty - and some of these - I think it's ten, even foresee the death penalty [for homosexual persons]. This is not right, people with homosexual tendencies are children of God, God loves them, God accompanies them. It is true that some are in this state because of various unwanted situations, but to condemn such people is a sin; to criminalize people with homosexual tendencies is an injustice. I am not talking about groups, but about people. Some say: they join in groups that generate noise. I am talking about people; lobbies are something different. I am talking about people. And I believe the Catechism of the Catholic Church says they should not be marginalized. This point, I believe, is clear.

Archbishop Welby indicated agreement with the Pope, saying in part:

[T]he Church of England, the Anglican Communion – has passed resolutions at two Lambeth conferences against criminalization, but it has not really changed many people's mind.

Idaho Legislature Cannot Intervene in Suit by U.S. Challenging Idaho's Abortion Ban In Emergency Situations

In United States v. State of Idaho, (D ID, Feb. 3, 2023), an Idaho federal district court refused to allow the Idaho legislature to intervene as a matter of right in a suit in which the U.S. Department of Justice is suing on a claim that Idaho's total abortion ban is preempted by federal law to the extent that it is contrary to the Emergency Medical Treatment and Labor Act. The court concluded that the legislature has failed to show that the state's attorney general is inadequately representing the state's identical interest in defending the abortion ban. The same court has previously issued a preliminary injunction against enforcing the ban against any medical provider or hospital that performs an abortion that is required as emergency treatment guaranteed by federal law. (See prior posting.) In that suit, the court permitted the legislature to permissively intervene on a limited basis.

Friday, February 03, 2023

20 State AG's Warn Pharmacies Against Mailing Abortion Pills

Missouri Attorney General Andrew Bailey announced on Tuesday that 20 state attorneys general have sent letters to Walgreen's and CVS pharmacies warning that their plan to distribute the abortion pills mifepristone and misoprostol using the mails violates both state and federal law. (Full text of letters to Walgreen's and CVS). The letters contend that distribution of the pills by mail violates 18 USC §1461 and reject an Opinion of the Justice Department's Office of Legal Counsel (full text) to the contrary.

Satanic Temple Opens Reproductive Health Clinic Offering Its Abortion Ritual

In a press release issued this week, The Satanic Temple ("TST") announced that it has set up its first Reproductive Health Clinic in New Mexico. TST has developed an abortion ritual that it claims is protected by the First Amendment. According to the press release:

[A]nyone in New Mexico seeking to perform The Satanic Temple’s abortion ritual will be able to receive free online medical services. Patients undergo a confidential screening and virtual appointment before having their prescriptions sent to the clinic’s pharmacy partner, who will mail the medications in a discreet package. The pharmacy’s fees will fall around $90 USD in order to keep prices at a minimum. TST Health’s licensed medical staff will be available for patient questions and concerns and will initiate follow-up communications with patients. In addition, the clinic has a dedicated patient hotline that is on call 24/7.

The Satanic Temple hopes to expand operations into other states, including those that do not allow clinicians to perform abortions.

TST's press release added that it has named the facility "The Samuel Alito’s Mom's Satanic Abortion Clinic," and went on to elaborate on that choice. Christian Post reports on TST's actions.

Faith-Based Resource Center for Homeless Sues Over Right to Serve Snacks to Its Clients

Suit was filed this week in a California federal district court by a Resource Cener for impoverished and disabled individuals alleging that the city of Santa Ana has violated its rights under RLUIPA and the First Amendment by insisting that it stop serving snacks to its clients in order to receive a Certificate of Occupancy, even though it had been operating without one for 15 years. The complaint (full text) in Micha's Way v. City of Santa Ana, (CD CA, filed 1/30/2023), asks for an injunction and declaratory relief. Voice of OC, reporting on the lawsuit, summarizes the allegations in the 44-page complaint:

For years, homeless people would come by the red roof house on 4th Street in Santa Ana for help with the basics: Personal documents, mail collection, maybe motel vouchers on a good day.

And on their way back out the door, they’d likely take a pastry from the faith-based center called Micah’s Way — a small parting token in the service of Christian ministry, but an unpermitted property use in the eyes of Santa Ana city officials....

On Monday, Micah’s Way attorney Edmond Connor filed a lawsuit against the city, citing federal protections for religious exercises like feeding and sheltering the homeless.

It accuses city officials of scapegoating Micah’s Way for neighborhood impacts from a nearby needle exchange program.

Chabad's Long-Running Suit Over Land Use Dismissed In Part

In Lubavitch of Old Westbury, Inc. v. Incorporated Village of Old Westbury, New York, (ED NY, Jan. 31, 2023), a New York federal magistrate judge recommended that the district court dismiss on various procedural and jurisdictional grounds (including statute of limitations) a number of the claims in a long-running suit by an Orthodox Jewish Chabad organization that has been unable to obtain permission to use some seven acres of property for religious education, worship and related activities. The magistrate judge began his lengthy Report and Recommendation as follows:

Presently before the Court is a motion to partially dismiss this action, which has been pending for more than fourteen years and involves factual allegations going back to 1994. In the years since the initial complaint was filed on December 17, 2008, this case has been assigned (and then reassigned) to four District Judges ... and four Magistrate Judges.... Furthermore, numerous law firms and attorneys have come and gone on behalf of the parties over this lengthy time span. As a reminder to the parties, they have an affirmative obligation under Federal Rule of Civil Procedure ("Rule") 1 "to secure the just, speedy, and inexpensive determination of every action and proceeding."...

A 237-page Second Amended Complaint in the case asserted 17 causes of action under the 1st, 4th, 5th and 14th Amendments, RLUIPA and the state Constitution.

National Prayer Breakfast Held Yesterday

As reported by AP, the National Prayer Breakfast, attended by 450 invitees, was held yesterday in the Capitol's Visitor Center. As reported in an earlier AP article:

The National Prayer Breakfast, one of the most visible and long-standing events that brings religion and politics together in Washington, is splitting from the private religious group that had overseen it for decades, due to concerns the gathering had become too divisive.

The organizer and host for this year’s breakfast ... [was] the National Prayer Breakfast Foundation, headed by former Sen. Mark Pryor, D-Ark.

Sen. Chris Coons, a regular participant and chairman of the Senate ethics committee, said the move was prompted in part by concerns in recent years that members of Congress did not know important details about the larger multiday gathering.

President Biden spoke at this year's Breakfast. (Full text of remarks.) The prior sponsor of Prayer Breakfasts, the International Foundation, held its own gathering at the nearby Washington Hilton hotel at which attendees watched the President's remarks. Some 1300 people attended that event.

Thursday, February 02, 2023

At Religious Freedom Summit, Ambassador Calls for Crimes Against Humanity Statute

The International Religious Freedom Summit was held on Tuesday and Wednesday in Washington, D.C. Among the numerous speakers and panelists was Beth Van Schaack, U.S. Ambassador-at-Large for Global Criminal Justice. In her remarks (full text), she said in part:

Today, several million Muslims are the victims of two contemporary genocides. One such genocide is being committed by authorities of the People’s Republic of China against predominantly Muslim Uyghurs, ethnic Kazakhs, ethnic Kyrgyz, and members of other ethnic and religious minority groups in Xinjiang. The other is being committed by members of the Burmese military against predominantly Muslim Rohingya. The Secretary of State has made a public genocide determination in both cases....

Although victim and survivor groups tend to gravitate toward the genocide label, ... [w]e do a great disservice to victims when crimes against humanity are omitted from our condemnation....

Crimes against humanity encompass a range of acts made criminal under international law when committed as part of a widespread or systematic attack directed against a civilian population. Prohibited acts include murder, torture, sexual violence, and persecution....

This is a crime that can be prosecuted before many national and international tribunals, including the International Criminal Court. The international community is in the process of drafting a crimes against humanity statute—an effort in which my office is actively involved. Unfortunately, however, the United States does not have a crimes against humanity statute, so this is not a crime that we can prosecute domestically. Senator Durbin has worked for years on getting such a statute enacted and we are hopeful that he can build the congressional consensus he needs around this effort this congressional term.

Wednesday, February 01, 2023

Australia Proposes New Antidiscrimination Requirements For Religious Educational Institutions

On January 27, the Australian Law Reform Commission released a 54-page Consultation Paper on Religious Educational Institutions and Anti-Discrimination Laws (full text). The Commission summarized the Paper in a press release:

The Australian Law Reform Commission seeks stakeholder submissions on proposals to change the way Commonwealth anti-discrimination law applies to religious schools and other educational institutions.

The Consultation Paper sets out four general propositions supported by 14 technical proposals for reform. If adopted, these would:

make discrimination against students on the grounds of sexual orientation, gender identity, marital or relationship status, or pregnancy in schools and other religious educational institutions unlawful, by removing exceptions currently available under federal law,

protect teachers and other school staff from discrimination on the grounds of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy, by removing similar exceptions, and

allow religious schools to maintain their religious character by permitting them to:

give preference to prospective staff on religious grounds where the teaching, observance, or practice of religion is a part of their role (and it is not discriminatory on other grounds); and

require all staff to respect the educational institution’s religious ethos.

Law and Religion Australia has more extensive reporting on the proposal.

4th Circuit: Church Loses Challenges to Zoning Restrictions

In Alive Church of the Nazarene, Inc. v. Prince William County, Virginia, (4th Cir., Jan. 31, 2023), the U.S. 4th Circuit Court of Appeals rejected a church's challenges to zoning restrictions that prevented it from using property it purchased for religious services. The church purchased 17 acres of land zoned for agricultural use. The church originally planned to comply with the agricultural use requirements by making non-alcoholic cider from fruit trees on the property. It would then be classified as a farm winery or limited-license brewery, could build any buildings it wished on the property and could hold events in them. However, the church discovered that in order to qualify, it also was required to obtain a license from the state Alcoholic Beverage Control Board. It concluded that doing this would violate its religious beliefs against the promotion of alcohol. Its only other route was to comply with provisions of a Special Use Permit which required construction that it could not afford. The court rejected the church's equal terms, non-discrimination and substantial burden challenges under RLUIPA, as well as its constitutional Equal Protection, Free Exercise and Peaceable Assembly challenges to the restrictions imposed on it. Courthouse News Service reports on the decision.

Tuesday, January 31, 2023

European Court Says Russia Violated Rights of Same Sex Couples Who Were Denied Marriage Registration

In Fedotova and Others v. Russia, (ECHR, Jan. 17, 2023), the Grand Chamber of the European Court of Human Rights held that Russia violated the rights of three same-sex couples when it refused to permit them to marry. The court said in part:

206. The Government argued, firstly, that it was necessary to preserve the traditional institutions of marriage and the family, these being fundamental values of Russian society that were protected by the Constitution....

209. Given that the Convention is a living instrument which must be interpreted in the light of present-day conditions, the State, in its choice of means designed to protect the family and secure respect for family life as required by Article 8, must necessarily take into account developments in society and changes in the perception of social and civil-status issues and relationships, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life....

212. In the present case, there is no basis for considering that affording legal recognition and protection to same-sex couples in a stable and committed relationship could in itself harm families constituted in the traditional way or compromise their future or integrity..... Indeed, the recognition of same-sex couples does not in any way prevent different-sex couples from marrying or founding a family corresponding to their conception of that term. More broadly, securing rights to same-sex couples does not in itself entail weakening the rights secured to other people or other couples. The Government have been unable to prove the contrary.

213. Having regard to the foregoing, the Court considers that the protection of the traditional family cannot justify the absence of any form of legal recognition and protection for same-sex couples in the present case....

219. ... [T]he allegedly negative, or even hostile, attitude on the part of the heterosexual majority in Russia cannot be set against the applicants’ interest in having their respective relationships adequately recognised and protected by law....

Law & Religion UK reports in greater detail on the decision.

HHS Proposes Repeal of Exemption from Contraceptive Mandate for Entities with Nonreligious Moral Objections

Yesterday, the Department of Health and Human Services along with several other federal agencies filed a 147-page release (full text) proposing rule changes to the Trump Administration's exemptive rules under the Affordable Care Act for employers and universities with objections to furnishing employees and students coverage for contraceptive services. The proposed rule changes would eliminate the current exemption for employers and schools that have moral, as opposed to religious objections. The new rules would retain the exemption for employers and universities with religious objections. However, under new arrangements, their employees and students could, in addition to existing options, obtain contraceptive services through an individual contraceptive arrangement with another provider, and without any involvement on the part of the employer or university with religious objections. The Center for Medicare and Medicaid Services issued a press release explaining the proposed rules, and CNN reports on the proposals.

5th Circuit: FFRF's Suit Against Texas Governor Is Moot

In Freedom From Religion Foundation, Inc. v. Abbott, (5th Cir., Jan. 27, 2023), the U.S. 5th Circuit Court of Appeals held that FFRF's suit against the Governor of Texas for wrongfully removing its display from the state Capitol became moot when the Texas State Preservation Board repealed the rule that had allowed private displays in the Capitol. The court said in part:

It is not seriously disputed that the Foundation’s exhibit satisfied the requirements for display or that the Board’s removal of the exhibit violated the First Amendment restrictions concerning speech communicated in a limited public forum. ...

Because the Foundation’s injury is premised on exclusion from expressing its message in a public forum, and because the public forum no longer exists, the permanent injunctive relief ordered by the district court cannot remain.

The court, however, refused to vacate the trial court's order and declaratory judgment, saying that "they might provide important guidance to future disputes." (See prior related posting.)

Monday, January 30, 2023

Sunday, January 29, 2023

Minnesota Passes Law Guaranteeing Right To Abortions

The Minnesota legislature yesterday gave final passage to HF1, the Protect Reproductive Options Act (full text). It provides in part:

Every individual who becomes pregnant has a fundamental right to continue the pregnancy and give birth, or obtain an abortion, and to make autonomous decisions about how to exercise this fundamental right.

According to a CBS News report on the bill:

Abortion rights in Minnesota are already protected because a Doe v. Gomez, a 1995 Minnesota Supreme Court decision. Democrats frame the bill as a "secondary" line of defense to that ruling.

The bill now goes to Gov. Tim Walz for his signature. According to MPR News, Gov. Walz has said he will sign the bill into law. [Thanks to Scott Mange for the lead.]

Friday, January 27, 2023

Today Is International Holocaust Remembrance Day

Today is International Holocaust Remembrance Day marking the 78th anniversary of the liberation of the Auschwitz-Birkenau Nazi concentration camp. The commemorative day was established by United Nations General Assembly Resolution 60/7, adopted by the General Assembly in 2005. A European Union press release describes the EU's commemoration activities. U.S. President Joe Biden issued a Statement (full text) marking the day. He said in part:

Sadly, we have seen over and over again that hate never goes away. It only hides—waiting to reemerge whenever it is given just a little bit of oxygen. And today, across our country, we are seeing swastikas on cars, antisemitic banners on bridges, verbal and physical attacks against Jewish businesses and Jewish Americans – even Holocaust denialism. It’s vile. It goes against everything we value as Americans. And each of us must speak out against this poison. Together, we must affirm, over and over, that hate has no safe harbor in America.

Baker Cannot Refuse to Provide Non-expressive Cake to Transgender Customer

In Scardina v. Masterpiece Cakeshop, Inc., (CO Ct. App., Jan. 26, 2023), a Colorado state appellate court held that Masterpiece Cakeshop and its co-owner Jack Phillips violated the Colorado Anti-Discrimination Act when they refused a transgender woman's order for a pink cake with blue frosting. The woman sought the cake to celebrate her birthday and her gender transition. The court said in part:

[A] proprietor may not refuse to sell a nonexpressive product to a protected person based on that person’s intent to use the product as part of a celebration that the producer considers offensive....

We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker. Thus, CADA does not compel Masterpiece and Phillips to speak through the creation and sale of such a cake to Scardina....

Masterpiece and Phillips argue, requiring them to make a cake that they know will be used to celebrate an occasion that their faith informs them is an affront to God’s design violates their right to freely exercise their religion.

In the context of providing public accommodations, however, a proprietor’s actions based on their religious beliefs must be considered in light of a customer’s right to be free from discrimination based on their protected status. The Supreme Court has long held that the Free Exercise Clause does not relieve a person from the obligation to comply with a neutral law of general applicability.... CADA is a neutral law of general applicability....

The Supreme Court has consistently held that the state has a legitimate, indeed compelling, interest in eliminating discrimination from public accommodations.,,, Thus, CADA is rationally related to a legitimate governmental interest. Accordingly, CADA may be enforced against Masterpiece and Phillips without violating their right to the free exercise of religion.

In a press release, ADF said that it would appeal the decision.

Thursday, January 26, 2023

Prof Sues Hamline University in Dispute Over Muslim Art Slides Shown in Art History Course

A great deal of national attention has been focused on the dispute at Hamline University over the school's refusal to renew the contract of adjunct Art History faculty member Erika Lopez Prater. A Muslim student (who was also president of the Muslim Student Association) complained to University administrators that in an online class on Islamic art Prater displayed slides of two classic paintings of the Prophet Muhammad. Because of the complaint, the University informed Prater that the class she had been scheduled to teach the following semester has been cancelled. Last week, Prater filed suit against the University in a Minnesota trial court. The complaint (full text) in Prater v. Trustees of Hamline University of Minnesota, (MN Dist. Ct., filed 1/17/2023) alleges religious discrimination, defamation, breach of contract as well as several other causes of action. It alleges in part:

Instead of recognizing that López Prater had displayed the images of the Prophet Muhammad for a proper academic purpose, Hamline decided to impose [the Muslim student's] interpretation of Islam on all Hamline employees and students....

[University Vice President] Everett engaged in libel on Hamline’s behalf, publicly defaming López Prater via email to all Hamline employees and students. The email ... states in relevant part:

Several weeks ago, Hamline administration was made aware of an incident that occurred in an online class. Certain actions taken in that class were undeniably inconsiderate, disrespectful and Islamophobic....

In a January 13 statement, the University released a statement saying in part:

In the interest of hearing from and supporting our Muslim students, language was used that does not reflect our sentiments on academic freedom. Based on all that we have learned, we have determined that our usage of the term “Islamophobic” was therefore flawed. We strongly support academic freedom for all members of the Hamline community. We also believe that academic freedom and support for students can and should co-exist. How this duality is exemplified on our campuses, especially in the current multicultural environment in which we live, is an exciting, robust, and honest conversation for academics, intellectuals, students, and the public to have.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Alabama Executive Order Protects Religious Freedom of Licensees, Grantees, Employees and Others

Alabama Governor Kay Ivey has issued Executive Order No. 733 (Jan. 20, 2023) requiring the executive branch of state government to enforce the Alabama Religious Freedom Amendment to the greatest extent practicable. The Order sets out specific religious freedom protections for state licensees, contractors, grant recipients, recipients of government benefits and state employees. Among other non-discrimination and free exercise protections, the Order provides:

A state executive-branch agency shall protect the religious-exercise rights of current or prospective licensees (i.e., any person or entity authorized or seeking to be authorized to engage in any profession, trade, business, or activity that requires state government licensure, certification, permitting, chartering, or other formal permission)...

The agency shall not require a current or prospective contractor or grant recipient to alter aspects of its religious character as a condition of receiving or maintaining a contract or grant unless strictly necessary to further a compelling governmental interest.

The state issued a press release announcing the signing of the Executive Order.

9th Circuit Orders En Banc Review of School's Action Against Fellowship of Christian Athletes

The U.S. 9th Circuit Court of Appeals has granted en banc review in Fellowship of Christian Athletes v. San Jose Unified School District Board of Education. The court's January 18 Order (full text) vacates the decision of a 3-judge panel which ordered reinstatement of the Fellowship of Christian Athletes as an official student club at San Jose high schools. (See prior posting.). At issue is selective enforcement of the San Jose Unified School District's non-discrimination policy. It revoked FCA’s status as an official student club because FCA requires those serving in leadership roles to abide by its Statement of Faith which includes the belief that sexual relations should be limited within the context of a marriage between a man and a woman. CBN News reports on the decision.

Wednesday, January 25, 2023

Indiana Supreme Court Hears Arguments on Constitutionality of State's Abortion Ban

On January 19, the Indiana Supreme Court heard oral arguments in Members of the Medical Licensing Board of Indiana, et al. v. Planned Parenthood Great Northwest, Hawai'i, Alaska, Indiana, Kentucky, Inc. (Video of full oral arguments.) As summarized by the Court:

After a special legislative session, the Indiana General Assembly passed Senate Bill 1 (“S.B. 1”), which criminalizes abortion, with a few limited exceptions. Appellees filed a complaint for declaratory relief and sought a preliminary injunction to enjoin the enforcement of S.B. 1. The trial court granted the preliminary injunction, and Appellants appealed. The Indiana Supreme Court has granted a petition to transfer under Indiana Appellate Rule 56(A) and assumed jurisdiction over the case.

Liberty Counsel issued a press release reporting on the arguments.

South Dakota Will Prosecute Pharmacies That Dispense Abortion Drug

Yesterday, South Dakota Governor Kristi Noem and Attorney General Marty Jackley released a letter (full text) sent to South Dakota pharmacists warning them that despite FDA approval for the abortion drug Mifepristone to be dispensed at pharmacies, it violates South Dakota law to do so. The letter reads in part:

This side-stepping on the part of the FDA permits dangerous, at-home abortions without any medical oversight. It also violates state law that makes dispensing this medication for abortions a felony.

Chemical abortions remain illegal in South Dakota. Under South Dakota law, pharmacies, including chain drug stores, are prohibited from procuring and dispensing abortion-inducing drugs with the intent to induce an abortion, and are subject to felony prosecution under South Dakota law, despite the recent FDA ruling. Their resources should be focused on helping mothers and their babies, both before birth and after.

All abortions, whether surgically or chemically induced, terminate the life of a living human being. South Dakota will continue to enforce all laws including those that respect and protect the lives of the unborn.

Tuesday, January 24, 2023

Biden Issues Memo On Access To Medical Abortion Drug

On January 22, President Biden issued a Memorandum on Further Efforts to Protect Access to Reproductive Healthcare Services (full text). It provides in part:

My Administration remains committed to supporting safe access to mifepristone, consistent with applicable law, and defending women’s fundamental freedoms. Defending and protecting reproductive rights is essential to our Nation’s health, safety, and progress. It is the policy of my Administration to protect against threats to the liberty and autonomy of those who live in this country.

Sec. 2. Continuing to Protect Access to FDA-Approved Medication. In light of recent developments and consistent with Executive Order 14076, within 60 days of the date of this memorandum:

(a) The Secretary of HHS, in consultation with the Attorney General and the Secretary of Homeland Security, shall consider:

(i) issuing guidance for patients seeking legal access to mifepristone, as well as for providers and entities, including pharmacies, that provide reproductive healthcare and seek to legally prescribe and provide mifepristone; and

(ii) any further actions, as appropriate and consistent with applicable law, to educate individuals on their ability to seek legal reproductive care, free from threats or violence.

9th Circuit Denies En Banc Review of Conversion Therapy Ban

In Tingley v. Ferguson, (9th Cir., Jan. 23, 2023), the U.S. 9th Circuit Court of Appeals denied an en banc rehearing of a 3-judge panel's decision rejecting free speech, free exercise and vagueness challenges to Washington state's ban on practicing conversion therapy on minors. Judge O’Scannlain, joined by Judges Ikuta, R. Nelson and VanDyke, filed an opinion dissenting from the denial of en banc review, saying in pat:

Our decision in Pickup [v. Brown] is, I suggest, no longer viable. While Pickup may have seen no distinction between “treatments … implemented through speech” and those implemented “through scalpel,” ... the First Amendment recognizes the obvious difference, and protects therapeutic speech in a way it does not protect physical medical procedures....

[T]he panel majority here entirely ignored the First Amendment’s special solicitude for religious speech. Instead, it commended Washington for concluding “that health care providers should not be able to treat a child by such means as telling him that he is ‘the abomination we had heard about in Sunday school’.”...

Judge Bumatay also filed an opinion dissenting from the denial of review, saying in part:

[W]e also cannot ignore that conversion therapy is often grounded in religious faith. According to plaintiff Brian Tingley, a therapist licensed by the State of Washington, his practice of conversion therapy is an outgrowth of his religious beliefs and his understanding of Christian teachings....

Because the speech underpinning conversion therapy is overwhelmingly—if not exclusively—religious, we should have granted Tingley’s petition for en banc review to evaluate his Free Speech claim under a more exacting standard. It may well be the case that, even under heightened review, Washington’s interest in protecting minors would overcome Tingley’s Free Speech challenge. But our court plainly errs by subjecting the Washington law to mere rational-basis scrutiny.

Monday, January 23, 2023

Federal Agencies Propose Rule Changes to Protect Beneficiaries of Federal Grants from Religious Discrimination

On January 13, nine federal agencies published a Notice of Proposed Rulemaking (full text) in the Federal Register eliminating certain changes made in 2020 by the Trump Administration that loosened restrictions on faith-based organizations' operation of programs and activities funded by federal grants. (See prior posting.) The proposed new rules revert largely to the 2016 version of the agencies' rules. The Notice of Proposed Rulemaking says in part:

[B]oth the 2016 Rule and the 2020 Rule contained provisions prohibiting providers from discriminating against a program beneficiary or prospective beneficiary “on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice.” ...

The 2016 Rule required that, in programs supported by direct Federal financial assistance, beneficiaries and potential beneficiaries also be made aware of these prohibitions on discrimination, but the 2020 Rule removed this notice requirement.

Because the purpose of making providers aware of nondiscrimination requirements is to ensure that beneficiaries can access services free from discrimination, ... all Agencies except USAID therefore propose to reinstate the requirement that organizations providing social services under Agencies’ direct Federal financial assistance programs give written notice to beneficiaries and prospective beneficiaries of certain nondiscrimination protections, and to apply this requirement to all such providers, whether they are faith-based or secular. The Agencies may, as appropriate, require providers to include this notice as part of a broader and more general notice of nondiscrimination on additional grounds.

The 2016 Rule also required the notification to beneficiaries to inform them that, if they were to object to the religious nature of a given provider, the provider would be required to make reasonable efforts to refer them to an alternative provider. The 2020 Rule eliminated that requirement. The Agencies believe, however, that providing assistance to beneficiaries seeking alternative providers would help advance the overarching goal of facilitating access to federally funded programs and services. Without such assistance, it may be challenging for beneficiaries or prospective beneficiaries unfamiliar with Federal grant programs to identify other federally funded providers....

Therefore, with the exception of USAID, the Agencies are proposing a modified version of the 2016 Rule’s referral procedure that would encourage Agencies, when appropriate and feasible, or State agencies and other entities that might be administering a federally funded social service program, to provide notice to beneficiaries or prospective beneficiaries about how to obtain information about other available federally funded service providers.

Finally, with the exception of USAID, the Agencies are proposing to remove language added by the 2020 Rule stating that providers at which beneficiaries choose to expend indirect aid “may require attendance at all activities that are fundamental to the program.”

BJC Online reports on the rule proposals.

Federal Reserve Bank Can Be Sued Under Both Title VII and RFRA

In Gardner-Alfred v. Federal Reserve Bank of New York, (SD NY, Jan. 18, 2023), a New York federal district court held that two former employees of the Federal Reserve Bank of New York may bring Title VII as well as RFRA and Free Exercise claims against FRBNY for denying them a religious exemption from the Bank's COVID vaccine mandate. It distinguished cases holding that other governmental entities can be sued only under Title VII. It held however that New York City and New York state anti-discrimination laws are pre-empted by federal law giving NYFRB the power to dismiss employees.

Recent Articles of Interest

From SSRN:

Ningning Ma, Se Yan & Yuling Zhao, Becoming 'Co-Ed': A Protestant Gift to China, (December 22, 2022).
Stanton D. Krauss, New Light on the History of Free Exercise Exemptions: The Debates in Two Eighteenth-Century State Legislatures, (Catholic University Law Review, Vol. 71, No. 4, 2022).
Luke Boso, Religious Liberty, Discriminatory Intent, and the Status Quo Constitution, (Univ. of San Francisco Law Research Paper , Jan. 2023).
Enrico Bonadio, Krishna Ravi Srinivas, Balaji Parthasarathy Iyengar & Atreya Choudhary, Gandhian Philosophy and Indian Intellectual Property, (in Relevance of Duties in Contemporary World – with Special Emphasis on Gandhian Thought (Edited by Professor Raman Mittal and Dr Kshitij Kumar Singh), Springer, Forthcoming 2023).
Kade Allred, Giving Hardison the Hook: Restoring Title VII’s Undue Hardship Standard, (Brigham Young University Journal of Public Law, Vol. 36, No. 2, 2022).
Cekli Setya Pratiwi, Indonesia’s Legal Policies Amid COVID-19: Balancing Religious Freedom and Public Health, (Journal of Southeast Asian Human Rights, [S.l.], v. 6, n. 2, p. 182-203, Dec. 2022).
Saud M. Alholiby, Saudi Arabian Tax Treaties: What Does Zakat Have to Do with Them?, (December 15, 2022).
Ahmed Altawyan, The Scope of Imposing Zakat and Income Tax in Saudi Law, (Taibah University Journal for Law, Volume 1, Issue 2, December 2022،, 9-24).

From SSRN (Catholic Legal Thought):

Matthew Cavedon, The Man Who Sold the World?: The Enduring Role of Pope Alexander VI’s Inter caetera in Spanish Colonization, (CSLR Research Paper No.1.2023-AFF).
Francis Beckwith, Dignitatis Humanae and the Challenges of the New Modern World, (January 6, 2023).
Jeremy Kessler, The Legal Origins of Catholic Conscientious Objection, (William & Mary Bill of Rights Journal, Vol. 31, No. 2, 2022).

From SSRN (Abortion Rights):

Dinah Aryeh, Dennis Chen, Arianne Juin Raymond & Nara Sandberg, The Economic Impact of Restricting Access to Abortion on Individuals in the United States, (December 16, 2022).
Devpriay Banerjee, The K. S. Puttaswamy Judgement and its Pivotal Role in Reproductive Rights, (January 11, 2023).
Scott D. Gerber, The Leak of the Dobbs Draft, (in Marietta, M. (eds) SCOTUS 2022. Palgrave Macmillan, Cham).
Cary Franklin & Reva B. Siegel, Equality Emerges As a Ground for Abortion Rights, (December 31, 2022).
June Carbone & Naomi R. Cahn, The Court’s Morality Play: The Punishment Lens, Sex, and Abortion, (Southern California Law Review, Forthcoming).

From SmartCILP:

Samuel A. Alito, Jr., Remarks to the 2020 Federalist Society National Lawyers Convention, 45 Harvard Journal of Law & Public Policy 83-102 (2022).
Rene Reyes, Religious Liberty, Racial Justice, and Discriminatory Impacts: Why the Equal Protection Clause Should Be Applied at Least as Strictly as the Free Exercise Clause, 55 Indiana Law Review 275-318 (2022).
Will Smiley, Rebellion, Sovereignty, and Islamic Law in the Ottoman Age of Revolutions, 40 Law & History Review 229-260 (2022).
Alexander Kaye, Religion, Law, and the Dynamics of Intellectual Transmission: Weimar Jurisprudence among Religious Socialists in Israel, [Abstract], 40 Law & History Review 305-334 (2022).
Cochav Elkayam-Levy, Where Is God When We Need Her? Women's Right to Freedom of Religion or Belief as Key to Promoting Gender Equality, 95 Tulane Law Review 1233-1304 (2021).

Friday, January 20, 2023

Suit By Clergy Challenges Missouri Abortion Bans

Suit was filed this week in a Missouri state trial court by 13 clergy from several Christian denominations, as well as from Unitarian Universalist and Jewish traditions challenging a series of Missouri abortion restrictions and bans as violating the state constitution's prohibition on favoring any religion and its protection of free exercise of religion. The 83-page complaint (full text) in Blackmon v. State of Missouri, (MO Cir. Ct., filed 1/19/2023), alleges in part:

8. This open invocation of religion in enacting H.B. 126 marked a departure from earlier legislative efforts to restrict abortion, when the sponsors claimed that their intent was to protect Missouri women. The legislative debate over those provisions reveals that, as with H.B. 126, the true purpose and effect of these laws was to enshrine certain religious beliefs in law. In enacting S.B. 5, for example, legislators spoke repeatedly of their intent to protect “innocent life,” could point as justification for the law only to biased investigations by the Senate “Sanctity of Life” Committee, and ignored the testimony of clergy who warned that targeting providers to limit abortion access impermissibly imposed one religious view on everyone else....

10. Collectively, Plaintiffs, like other clergy and faith communities all across this State, have through their work providing care, counseling, teaching, and preaching, spent decades countering the false but all too common assertion that faith and abortion access are incompatible. Their beliefs and lived experiences stand in stark contrast to the religious dictates that the Total Abortion Ban, Gestational Age Bans, Reason Ban, 72-Hour Delay, Same-Physician Requirement, Medication Abortion Restrictions, and Concurrent Original Jurisdiction Provision (collectively, the “Challenged Provisions”) impose on all Missourians.

NPR reports on the lawsuit.