Moving of Confederate Monument Did Not Violate Plaintiffs' Religious Rights

In Edgerton v. City of St. Augustine, (MD FL, March 20, 2023), a Florida federal district court rejected plaintiffs' challenges to the city's moving a monument honoring Confederate Civil War veterans from City Park to a new location.  Among other things, the court rejected Establishment Clause and Free Exercise challenges, saying in part:

Plaintiffs allege that "the message [the monument] conveyed has changed over time[,] which demonstrates why the removal of it. . . appears hostile and offensive to those who use it for moments of respect, prayer, and remembrance of those long gone." ... Plaintiffs do not allege the City considered any of Plaintiffs' religious beliefs when it decided to remove and relocate the monument. Additionally, Plaintiffs provide no allegations of historical practices or understandings of similar instances of a city removing a monument, and such removal amounting to an Establishment Clause violation.

... Mr. Edgerton "expressed his religious beliefs by paying respect to the dead [soldiers] by praying at and protecting the 'empty tomb' of his 'Southern family[.]"... Mr. Ross alleges that he "had participated in prayer at the site" of the monument, but since it has been relocated, his ability to continue doing so is "nearly impossible."... Ms. Pacetti alleges that she "has freely exercised her right to Christian memorial expression of her deceased family member at the Plaza next to the [m]onument[.]"... Mr. Parham alleges that he "continued to visit the [m]onument after his father's death . . . exercising his religious memorial expressions.",,,

Accepting these allegations as true, Plaintiffs do not state a plausible violation of their Free Exercise rights. Plaintiffs can still exercise any and all of the beliefs they have alleged.... Plaintiffs do not allege facts that the City relocated the monument because of Plaintiffs' religious beliefs....

Presidential Proclamation Protects Sacred 500,000+ Acres in Nevada Under Antiquities Act

Yesterday, President Biden issued A Proclamation on Establishment of the Avi Kwa Ame National Monument (full text). The lengthy Proclamation sets aside 506,814 acres in southern Nevada, and items within that area, as protected under the Antiquities Act. The Proclamation reads in part:

The mountain and the surrounding arid valleys and mountain ranges are among the most sacred places for the Mojave, Chemehuevi, and some Southern Paiute people, and are also significant to other Tribal Nations and Indigenous peoples, including the Cocopah, Halchidhoma, Havasupai, Hopi, Hualapai, Kumeyaay, Maricopa, Pai Pai, Quechan, Yavapai, and Zuni....

For the Tribal Nations that trace their creation to Avi Kwa Ame, the power and significance of this place reside not just in the mountain itself, but radiate across the valleys and mountain ranges of the surrounding desert landscape containing the landmarks and spiritually important locations that are linked by oral traditions and beliefs.  Tribal Nations have shared those traditions and beliefs across many generations through ... origin songs, which are central to Tribal members’ knowledge of the landscape, enabling them to navigate across the diverse terrain, find essential resources, and perform healing, funeral, and other rituals....

This entire landscape is an object of historic and scientific interest requiring protection under ... the "Antiquities Act".... As well as being an object itself, the landscape contains innumerable individual geologic features, archaeological sites, and havens for sensitive and threatened species... and it provides habitat for centuries-old Joshua trees and other objects that are independently of historic or scientific interest and require protection under the Antiquities Act.  Some of the objects are also sacred to Tribal Nations; are sensitive, rare, or vulnerable to vandalism and theft; or are dangerous to visit and, therefore, revealing their specific names and locations could pose a danger to the objects or the public.

The White House also issued a Fact Sheet on the Proclamatioin. In another Proclamation issued yesterday, the President also created the Castner Range National Monument in El Paso, Texas. E&E News reports on these and related Presidential actions.

3rd Circuit: Qualified Immunity Can Be Asserted in RFRA Case, But Not in This One

In Mack v. Yost, (3rd Cir., March 21, 2023), the U.S. 3rd Circuit Court of Appeals in a 2-1 decision held that qualified immunity can be asserted as a defense by prison officers in a suit against them under RFRA, but also concluded that at the summary judgment stage here defendants had not shown facts demonstrating that they are entitled to the defense. The majority summarized its 48-page opinion in part as follows:

When Mack was incarcerated, he worked at the prison commissary, where two supervising prison guards singled him out for harassment because of his Muslim faith. Most significantly, the evidence as it now stands shows that, when Mack would go to the back of the commissary to pray during shift breaks, the guards would follow him and deliberately interfere with his prayers by making noises, talking loudly, and kicking boxes. Fearing retaliation if he continued to pray at work, Mack eventually stopped doing so, but the guards nevertheless engineered his termination from his commissary job. He then sued.

... The guards ... moved for summary judgment ... on the theory that they are entitled to qualified immunity.... [T]he District Court sided with them. It held that ... no clearly established caselaw would have put a reasonable person on notice of the illegality of the guards’ actions. Mack has again appealed.

We agree with Mack that granting summary judgment was wrong. While ... qualified immunity can be asserted as a defense under RFRA, the officers have not – at least on this record – met their burden of establishing that defense.... [E]vidence of the RFRA violation here involved significant, deliberate, repeated, and unjustified interference by prison officials with Mack’s ability to pray as required by his faith. Based on those facts ..., the officers are not entitled to qualified immunity. But if different facts come out at trial, the officers may again raise qualified immunity....

Judge Hardiman dissented, saying in part:

Even accepting the majority’s articulation of the right at issue, I would not find it clearly established here.

The cases Mack cites, as the majority notes, are not factually analogous. And the majority identifies no other precedent—from our Court or elsewhere, before or after RFRA was enacted—sufficiently similar to deny Defendants qualified immunity.

President Biden Sends Greeting To Those Celebrating Nowruz

Yesterday the White House issued a statement (full text) from President Biden and the First Lady extending best wishes to everyone celebrating Nowruz across the United States and around the world. Nowruz is the Persian New Year, celebrated in the Middle East, Central and South Asia, the Caucasus and parts of Europe. The Statement says in part:

This year, Nowruz comes at a difficult time for many families, when hope is needed more than ever—including for the women of Iran who are fighting for their human rights and fundamental freedoms. The United States will continue to stand with them, and all the citizens of Iran who are inspiring the world with their conviction and courage. And together with our partners, we will continue to hold Iranian officials accountable for their attacks against their people.

New Arkansas Law Authorizes Monument to Unborn Children on Capitol Grounds

As reported by ABC News, on Thursday Arkansas Governor Sarah Huckabee Sanders signed SB307 (full text) into law. The new law provides for a privately funded Monument To Unborn Children to be placed on the state Capitol grounds.  The monument is to commemorate "unborn children aborted during the era of Roe v. Wade..." The monument is to be funded by gifts, grants and donations from individuals and organizations.  The law also provides for legal defense of the monument if it is challenged, for maintenance of the monument and for replacement of it "if necessary due to catastrophic damage."

USCIRF Holds Hearing on Russian Violation of Religious Freedom Through Its Invasion of Ukraine

Last Wednesday, the U.S. Commission on International Religious Freedom held a virtual hearing on Russia's Invasion of Ukraine: Implications for Religious Freedom. (Video of full Hearing and transcripts of written presentations.) USCIRF described the hearings:

Since Russian President Vladimir Putin launched the full-scale military invasion of Ukraine a year ago, Russian forces have committed numerous religious freedom and other related human rights violations in Ukraine, including the killing and torture of religious leaders and the destruction of countless houses of worship. Russian officials have repeatedly turned to antisemitic rhetoric and Holocaust distortion in an effort to justify the country’s groundless invasion. In the areas of Ukraine that Russia has occupied since 2014, its de facto authorities and proxies have imposed draconian laws to suppress religious communities such as the Orthodox Church of Ukraine, predominantly Muslim Crimean Tatars and Jehovah’s Witnesses. Meanwhile, in Russia, the state has continued to prosecute an ever-growing list of religious groups as so-called “extremists” for their peaceful religious activities and launched a ruthless campaign to silence civil society and independent media.

Certiorari Denied in Challenge by Preacher to University's Speaker Permit Rule

The U.S. Supreme Court today denied review in Keister v. Bell, (Docket No. 22-388, certiorarari dened, 3/20/2023). (Order List.) In the case, the U.S. 11th Circuit Court of Appeals rejected a challenge to the University of Alabama's policy that requires a permit in order for a speaker to participate in expressive conduct on University grounds, with an exception for “casual recreational or social activities.” The challenge was brought by a traveling evangelical preacher who, with a friend, set up a banner, passed out religious literature and preached through a megaphone on a campus sidewalk. (See prior posting.) Links to filings with the Supreme Court in the case are available here.  Reuters reports on the Court's action. [Thanks to Thomas Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• Barbara Hoffman, Accommodating Disabilities in the Post-COVID-19 Workplace, (Indiana Journal of Law and Social Equality, Forthcoming).
• Andrew M. Koppelman, The Use and Abuse of Tradition: A comment on DeGirolami’s Traditionalism Rising, (Journal of Contemporary Legal issues, 2023 Forthcoming).
• Jane Tien, From The Vatican With Cash: Prosecuting Money Laundering In London Real Estate, (University of Miami International & Comparative Law Review, Vol. 30, 2022).
• Shubhankar Agnihotri, A Critical Analysis of Doctrine of Pious Obligation, (March 10, 2022).
• SpearIt, Understanding an American Paradox: An Overview of The Racial Muslim: When Racism Quashes Religious Freedom, (Hastings Constitutional Law Quarterly, Vol. 50, p. 141, 2023).
• Tasmiah Zaman, Freedom of Religion for Non-Muslims in Islam: A Pakistani Affair, (Law and Humanities Quarterly Reviews, Vol.5 No.2 (2022)).
• Jonathan F. Mitchell, Why Was Roe v. Wade Wrong?. (Forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)).
• Ashraf M,A. Elfakharani, The Impact of Covid 19 on the Obligations of Contractors through the Commercial Contract in Saudi Arabia and the Islamic Law Perspective, (Law and Humanities Quarterly Reviews, Vol.1 No.3 (2022)).

From SmartCILP:

• A Festschrift Honoring Abdullahi Ahmed An-Naim, Emory International Law Review, Vol. 36, Issue 4 (2022).
• Amanda Whiting, Book Review. Constituting Religious Conflict in a Multicultural State. Constituting Religion: Islam, Liberal Rights, and the Malaysian State, by Tamir Moustafa, [Abstract], 47 Law & Social Inquiry 1321-1326 (2022).

Transcript of Hearing Released in Challenge to FDA Approval of Mifepristone

On March 15, Judge Matthew Kacsmaryk in the federal district court in the Northern District of Texas held a hearing on the preliminary injunction motion in the widely-watched case of Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration. The full transcript of the hearing has now been released. As previously reported, the case challenges the FDA's long-standing approval for use in the United States of the chemical abortion drug mifepristone. Axios reports on the hearing.

New Utah Law Requires All Abortions To Be In Hospitals, Not In Clinnics

On Wednesday, Utah Governor Spencer Cox signed HB467 (full text) which requires that after January 1, 2024, all abortions be performed in hospitals, not in abortion clinics. Additionally, it expands the exception for rape and incest to also include any pregnancy of a child under 14 years of age. In another change, however, the new law allows abortions in all of these cases only before 18 weeks of pregnancy. The new law also makes a number of other changes in the state's abortion statutes.  Legislative history of the bill is available here.  AP reports on the new law. AP says in part:

Last year’s Supreme Court ruling [in Dobbs] triggered two previously passed pieces of legislation— a 2019 ban on abortion after 18 weeks and a 2020 ban on abortions regardless of trimester, with several exceptions including for instances of risk to maternal health as well as rape or incest reported to the police. The Planned Parenthood Association of Utah sued over the 2020 ban, and in July, a state court delayed implementing it until legal challenges could be resolved. The 18-week ban has since been de facto law.

Abortion-access proponents have decried this year’s clinic ban as a back door that anti-abortion lawmakers are using to limit access while courts deliberate.

Kamala Harris: Abortion Bans Without Rape and Incest Exceptions Are "Immoral"

Vice President Kamala Harris spoke yesterday in Des Moines, Iowa at a Roundtable on Reproductive Rights. (Full text of her remarks). She said in part:

We have seen what I would consider and do consider, as a former prosecutor, to be an immoral approach to survivors of rape or incest where, in states, there is even no exception after an individual has survived such an act of violation to their body and then, by their state, being deprived of the ability, after that, to make other decisions about their body.  It’s immoral. 

And let’s be clear: On this issue, one does not have to abandon their faith or deeply held beliefs to agree the government should not be telling her or any individual what to do with their body. 

Let them make that decision if they choose with their priest, with their pastor, with their rabbi, with whomever.  But the government should not be telling her what to do with her own body.

North Dakota Supreme Court: State Constitution Protects Right to Abortion to Save Life or Health of Mother

In Wrigley v. Romanick, (ND Sup. Ct., March 16, 2023), the North Dakota Supreme Court refused to vacate a trial court's preliminary injunction that barred enforcement of the state's 2007 abortion ban whose effectiveness was to be triggered by the overruling of Roe v. Wade. In particular, the court concluded that the absence of an exception in the abortion ban for preserving the health of the mother was a critical defect in the law.  The court said in part:

The North Dakota Constitution explicitly provides all citizens of North Dakota the right of enjoying and defending life and pursuing and obtaining safety. These rights implicitly include the right to obtain an abortion to preserve the woman’s life or health....

Fundamental rights are those which are deeply rooted in history and tradition and are implicit in the concept of ordered liberty.... North Dakota’s history and traditions, as well as the plain language of its Constitution, establish that the right of a woman to receive an abortion to preserve her life or health was implicit in North Dakota’s concept of ordered liberty before, during, and at the time of statehood....

Justice Tufte filed a concurring opinion, saying in part:

At this time we consider only the preliminary injunction, and we need not decide the constitutionally necessary scope of any health exception.

Justice McEvers, joined by Justice Crothers and Judge Narum, filed an opinion concurring specially, and saying in part:

I write separately to explain how and why the rights protected under the North Dakota Constitution may be broader than those protected under the United States Constitution.

NPR reports on the decision.

Albany, NY Catholic Diocese Files for Bankruptcy Reoganization

The Roman Catholic Diocese of Albany, New York announced that on Wednesday it filed a petition for bankruptcy reorganization in federal bankruptcy court.  The Bishop's letter to the faithful said in part:

We maintain global mediation would have provided the most equitable distribution of the Diocese’s limited financial resources but as more Child Victims Act (CVA) cases reached large settlements, those limited funds have been depleted. The Chapter 11 filing is the best way, at this point, to ensure that all Victim/Survivors with pending CVA litigation will receive some compensation. The decision to file was not arrived at easily, but we, as a Church, can get through this and grow stronger together.

To date, the Diocese has been named in more than 400 CVA lawsuits which were filed between Aug. 15, 2019, and Aug. 14, 2021. With the assistance of the Court and demonstrating its ongoing good faith commitment to Victim/Survivor claims, the Diocese has separately settled more than 50 CVA cases....

This filing also puts on hold the lawsuits involving the St Clare’s pensioners. That was not our purpose for filing. While many questions remain regarding the St. Clare’s pension fund, the plight of the pensioners is of great concern to me. The St. Clare’s pensioners are certainly close to my heart and, as I would do with anyone in a difficult situation, I offer my pastoral care.

CNA reports on the bankruptcy filing.

Suit Challenges Connecticut's Elimination of Religious Exemption from School Vaccination Requirement

Suit was filed last week in a Connecticut federal district court by a Christian preschool and the church that sponsors it challenging Connecticut's removal of religious exemptions from its statute requiring various vaccinations for preschool children. The complaint (full text) in Milford Christian Church v. Russell-Tucker, (D CT, filed 3/6/2023) alleges that the requirement violates plaintiffs' free exercise, free speech, freedom of association, equal protection, and child rearing rights. It alleges in part:

63. Conn. Gen. Stat. § 10-204a denies a generally available benefit – education– to children if their parents do not abandon their religious beliefs while affording the same benefit to parents and children who assert a medical exemption.

64. Adding insult to injury, Conn. Gen. Stat. § 10-204a prevents parents from seeking alternative education options for their children by applying the same mandate to private schools, daycares, and pre-schools, including those operated by churches and religious organizations.

65. In other words, Conn. Gen. Stat. § 10-204a forces parents to either renounce their religious beliefs and vaccinate their children or homeschool their children– something that many parents cannot do – thus depriving them any educational opportunities.

Christian Post reports on the lawsuit.

Catholic Diocese of Santa Rosa, California Files for Bankruptcy

Last week, the Catholic Diocese of Santa Rosa, California (the state's smallest Catholic diocese) announced that it is filing for Chapter 11 bankruptcy reorganization. According to the Diocese, the decision was made because of the large number of child sex abuse lawsuits filed against it during a 3-year window created by the California legislature for suits to be filed even though the statute of limitations had previously run. Some of the lawsuits relate to conduct that occurred as long as 60 years ago. The Diocese said in part:

These cases are too numerous to settle individually and so they have accumulated until the closing of the three-year window. Now that the window is closed, we have received notice of at least 160 claims and we have information that perhaps more than 200 claims have been filed in total against the Diocese.

 ... [I]n 2003 the Diocese faced similar circumstances but with many fewer cases. At that time excess property was sold, money borrowed and the Diocese paid approximately $12 million dollars with an additional $19 million coming from insurance. Since then, the Diocese has expended an additional $4 million on individual settlements. Now, facing at least 160 new cases, with excess property depleted, with insurance for many of the years either non-existent or exhausted it is impossible to see any way forward without recourse to the bankruptcy protections our Country makes available....

[W]e are deeply saddened that so many have endured abuse in the past and that the scourge of child sexual abuse is a part of our diocesan history. The present action of the Diocese is necessary and through this process we hope to provide for those who have come forward and who are yet to come forward at least some compensation for the harms they have endured.

Links to all the legal filings in the case are available at this website. Catholic News Agency reports on the bankruptcy filing.

6th Circuit: Employees Have No Free Exercise Claim Against Company That Denied Them a Religious Exemption from Vaccine Mandate

In Ciraci v. J.M. Smucker Company, (6th Cir., March 14, 2023), the U.S. 6th Circuit Court of Appeals held that employees of a company that sells food products to the federal government may not assert a 1st Amendment free-exercise claim against the company for denying them a religious exemption from a COVID vaccine mandate imposed by the company after the federal government required government contractors to do so. The court said in part:

Constitutional guarantees conventionally apply only to entities that exercise sovereign power, such as federal, state, or local governments.... Smucker’s may be a big company. But it is not a sovereign. Even so, did Smucker’s become a federal actor—did it exercise sovereign power?—for purposes of this free-exercise claim when it sold products to the federal government and when it imposed the vaccine mandate because the federal government required it to do so as a federal contractor? No, as the district court correctly held. We affirm....

Smucker’s does not perform a traditional, exclusive public function; it has not acted jointly with the government or entwined itself with it; and the government did not compel it to deny anyone an exemption. That Smucker’s acted in compliance with a federal law and that Smucker’s served as a federal contractor—the only facts alleged in the claimants’ complaint—do not by themselves make the company a government actor.

The court went on to suggest that even if the company were a state actor, there may be no cause of action against them:

To the extent the claimants seek damages directly under the First Amendment against a federal official, they must rely on the kind of implied cause of action created by Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). But extending Bivens is “disfavored” ...

That leaves claimants’ demands for a declaratory judgment, reinstatement, and other equitable relief. In equity, it is true, claimants sometimes may “sue to enjoin unconstitutional actions by state and federal officers” even in the absence of a statutory cause of action.... But today’s claimants seek more than a prohibitory injunction. They seek reinstatement and other affirmative relief. It is not clear whether, as a matter of historical equitable practice, we may infer, imply, or create a cause of action for such relief. But because the parties have not briefed or argued these points and because they do not go to our jurisdiction, we need not decide them today.

Massachusetts Supreme Court: Church May Relocate Cremated Remains Over Objection of Families

In Church of the Holy Spirit of Wayland v. Heinrich, (MA Sup. Jud. Ct., March 14, 202), the Massachusetts Supreme Judicial Court rejected claims by families attempting to prevent the disinterment and relocation of cremated remains sought by a church in order to facilitate the sale of its churchyard property. The court said in part:

This case concerns the scope of rights conveyed by a set of burial certificates, as sold by a church to its parishioners. After dwindling membership compelled the Church of the Holy Spirit of Wayland ... to close and sell its property, do the certificates permit the church to disinter and relocate the cremated remains buried on that property despite the objections of the decedents' families?

Although we acknowledge the sensitive -- even sacred -- nature of the subject matter of this dispute, we conclude that the burial certificates' unambiguous language permits the disinterment and that no common-law right held by the families prevents it.

Good News Clubs Sue to Get Access for After School Programs

Suit was filed last week in a Rhode Island federal district court by the Good News Clubs contending that their 1st and 14th Amendment rights were violated when Providence, RI school officials blocked approval of their use of school facilities for after-school programs. The complaint (full text) in Child Evangelism Fellowship of Rhode Island, Inc. v. Providence Public School District, (D RI, filed 3/10/2023) alleges in part:

CEF Rhode Island and its proposed Good News Clubs are similarly situated to the other organizations the District allows to host their afterschool programs in District elementary schools because all the organizations provide teaching and activities to develop things like confidence, character, leadership, and life skills in their participants. CEF Rhode Island, however, offers its programming from a Christian religious viewpoint, while the other organizations offer their similar programming from a nonreligious viewpoint....

The increasingly burdensome requirements the District has imposed on CEF Rhode Island as conditions to access for its Good News Clubs are discriminatory and pretextual disguises for the District’s hostility towards CEF Rhode Island’s Christian identity, message, and viewpoint.

Liberty Counsel issued a press release announcing the filing of the lawsuit.

Fatwa Council Condemns Hamas Action In Gaza

 The Islamic Fatwa Council, a non-governmental religious body based in Najaf in Iraq, describes itself as

... the first global governing judicial body specializing in deducing Fatwas from indisputable and moderate Islamic references. The IFC transcends borders and continents as its jurists and legal scholars come from all Islamic denominations and sects, reinforcing the credibility and legality of the issued verdict. It is a representative legal body of all sects of Islam, critical for denouncing and opposing all forms of violent verdicts and hateful public statements.

Last week, the Council issued a Fatwa condemning Hamas as a terrorist organization. Fatwa F2301 (full text) provides in part:

 ... The Islamic Fatwa Council has reviewed extensive documentation of Hamas behavior toward Palestinians in Gaza.... Our findings ... result in our ruling that:

A) Hamas bears responsibility for its own reign of corruption and terror against Palestinian civilians within Gaza;

B) It is prohibited to pray for, join, support, finance, or fight on behalf of Hamas-- an entity that adheres to the ideology of the Muslim Brotherhood movement.

Furthermore, the Islamic Fatwa Council joins the UAE Fatwa Council and the Council of Senior Scholars of Saudi Arabia in declaring the Muslim Brotherhood movement and all of its branches as terrorist organizations that defame Islam and operate in opposition to mainstream Islamic unity, theology and jurisprudence.

Fox News reports on the Council's action. Fatwa Council officials comment on the Fatwa.

Suit Challenges California's Exclusion of Religious Schools from Funding for Students With Disabilities

Suit was filed yesterday in a California federal district court by six Jewish parents and two Orthodox Jewish day schools challenging the exclusion of sectarian schools from receiving funds made available to California under the Individuals with Disabilities Education Act. The complaint (full text) in Loffman v. California Department of Education, (CD CA, filed 3/13/2023), alleges in part:

12. Defendants’ administration and implementation of California law excludes Plaintiffs from the generally available public funding necessary to provide an education to students with disabilities.

13. Plaintiffs merely seek to educate and care for children with disabilities and practice their Jewish faith on an equal basis with other California citizens. 

14. As the Supreme Court recently held, they are entitled to equal treatment because “religious schools and the families whose children attend them . . . ‘are members of the community too.’” Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2262 (2020). Excluding Plaintiffs from government programs—for no other reason than the fact that they are  religious—is “odious to our Constitution and cannot stand.”

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

COVID Order Violated Priest's Free Exercise Rights

 In Urso v. Mohammad, (D CT, March 10, 2023), a Catholic priest sued a town's health director over COVID orders that cancelled religious gatherings and congregational prayers. The court concluded that the health Directive violated plaintiff's free exercise rights, but left for trial the question of whether plaintiff suffered an injury, saying in part:

[N]ot all secular businesses in the Town of Orange were closed, and the Directive itself is unquestionably stricter than the Governor’s Executive Orders, which imposed capacity limits on religious institutions in line with those imposed on other secular businesses, and never cancelled all religious services completely.... In Agudath Israel, the Second Circuit applied strict scrutiny when businesses such as retail stores, news media, financial services, and construction were not as restricted as houses of religious worship.... Thus, the Second Circuit has already made the determination there is no meaningful difference between a retail store and a house of worship in terms of COVID-19 risk.... Regardless of how well intentioned it might have been and the difficult circumstances under which it was issued, the Directive “expressly singles out religion for less favored treatment” by subjecting religious services to complete cancellation while not imposing such strict measures on other businesses regardless of their size or the length of time people were gathering there ... and is thus subject to strict scrutiny....

The Court determines therefore as a matter of law both that the Directive is subject to strict scrutiny, and that it fails that scrutiny, thus violating the First Amendment....

The court concluded that plaintiff's equal protection claim is tied to the free exercise claim.  The court found that claims for injunctive and declaratory relief were now moot. It rejected plaintiff's Establishment Clause claim saying that the health directive did not "establish religion or espouse a religious message." It rejected plaintiff's free speech and freedom of assembly claims, relying on the Supreme Court's 1905 decision in Jacobson v. Massachusetts.

Rastafarian Police Officer's Free Exercise Claim May Move Ahead

In Taylor v. City of New Haven, (D CT, March 10, 2023), a Rastafarian police officer sued claiming religious and disability discrimination after being denied an exemption from the police department's grooming policy. While dismissing a half dozen of plaintiff's claims largely on procedural and jurisdictional grounds, the court permitted him to move ahead with his First Amendment free exercise claim for damages, saying in part:

The plaintiff has alleged facts sufficient to show that the general order at issue burdened his religious conduct..., and that the order lacked general applicability, both because it invited individualized exemptions... and because the City of New Haven permitted secular conduct contrary to the general order.... Thus, the plaintiff has alleged facts which, if true, demonstrate that the general order is subject to strict scrutiny and that the government can achieve its interests in a manner that does not burden religion. Consequently, for purposes of this stage of the case, the plaintiff has shown that he had a right protected by the First Amendment.

Recent Articles of Interest

From SSRN:

• Robert C. Blitt, Justifying War: Russia’s 2020 Constitutional Amendments and the Invasion of Ukraine, (March 1, 2023).
• Samuel D. Brunson & Philip Hackney, A More Capacious Concept of Church, (Loyola of Los Angeles Law Review, Vol. 56, No. 4, forthcoming).
• Ekhorutomwen Gabriel Ekhator, Noise Nuisance and Religious Freedom: Balancing Religious Activities and Religious Freedom when Activities of Religious Houses Bring Discomfort to the Neighourhood, (November 1, 2023).
• Nicole B. Godfrey, The Religious Freedom Restoration Act, Federal Prison Officials, and the Doctrinal Dinosaur of Qualified Immunity, (New York University Law Review, forthcoming).
• Amanda Reid, Roadside Memorial Crosses: Highway to Healing or Crossroads of Conflict, (in Equal Protection v. Religious Freedom: Clashing American Rights, (2022).
• Nqobizwe Mvelo Ngema & Desab Iyer, Penalty for Committing Fornication & Adultery (Zina) in Islamic Law as a Violation of Freedom from Torture, (OIDA International Journal of Sustainable Development, Vol. 15, No. 06, pp. 11-18, 2022).
• Jiangfeng Hao, On the Logic of the Rule of Law Applicable to Euthanasia (February 20, 2023).
• Linda Sugin, Tax Benefits and Fairness in K–12 Education, (111 Georgetown Law Journal Online 140 (2023)).

From SSRN (Abortion Rights):

• Caroline Mala Corbin, Religious Liberty for All? A Religious Right to Abortion, (Wisconsin Law Review, Forthcoming).
• Paula A. Monopoli, Situating Dobbs, (14 ConLawNOW 45 (2023)).
• Malinda L. Seymore, Social Costs of Dobbs' Pro-Adoption Agenda, (57 U.C. Davis Law Review ___ (Forthcoming 2023)).
• I. Glenn Cohen, Rebecca Reingold & Lawrence O. Gostin, Supreme Court Ruling on the Texas Abortion Law: Beginning to Unravel Roe v Wade, (The Journal of the American Medical Association, published online January 28, 2022, at E1-E2).

Latest Attempt to Prevent City from Removing Cross from Public Park Fails On Procedural Grounds

Lion's Club of Albany, California v. City of Albany, (ND CA, March 9, 2023), is the latest installment in the ongoing litigation over the removal of a 28-foot tall, illuminated Latin cross located in a park which the city has purchased. (See prior related posting.) The Lioin's Club has an easement allowing it access to the cross to maintain it. After a prior decision finding that the city violated the Establishment Clause when it purchased the park and left the cross standing, the city instituted eminent domain proceedings in state court to acquire the easement so it could remove the cross. The state trial court judge granted the city prejudgment possession of the easement so the city could take down the cross and store it in a safe place pending the outcome of the eminent domain proceedings. The Lion's Club asked the state court of appeals to stay the trial court's order. That petition was denied for technical reasons that could have been cured. Instead, the Lion's Club came back to federal court seeking a temporary restraining order to prohibit removal of the cross.  In this decision, the court denied that request invoking the Rooker-Feldman doctrine which requires a federal court to dismiss a case when the plaintiff is essentially attempting to appeal a state court decision through the lower federal courts rather than by filing appeals through state court channels.

Michigan Legislature Repeals 1931 Criminal Abortion Ban

The Michigan legislature on Wednesday gave final passage to HB-4006 (full text) which repeals Section 750.14 and 750.15 of the Michigan Penal Code. These sections, which were enacted in 1931, criminalize abortion and require pharmacies to keep records of purchasers of abortion medications and of physicians prescribing them. The bill now goes to Governor Gretchen Whitmer for her signature. It is expected that she will sign the bill. WZZM13 News reports on the bill. An injunction against enforcement of Section 750.14 had previously been issued by the state Court of Claims (see prior posting) and the section was effectively overridden by a state constitutional amendment guaranteeing reproductive freedom passed by Michigan voters last November.

Christian University Sues Over Termination of Student Teaching Arraangements

Suit was filed yesterday in an Arizona federal district court by a Christian university alleging that a public school district violated free exercise, free speech and other federal constitutional provisions as well as Arizona law when it terminated the student teacher agreement between the university and the school district.  The complaint (full text) in Arizona Christian University v. Washington Elementary School District No. 6, (D AZ, riled 3/9/2023) alleges in part:

For the last eleven years, Arizona Christian and Washington Elementary School District, the largest elementary school district in Arizona, had a mutually beneficial partnership where students in Arizona Christian’s Elementary Education degree programs would student teach and shadow teachers in the School District....

Despite there being zero complaints about an Arizona Christian student teacher or alumnus, the School District decided to terminate its relationship with Arizona Christian and its students solely because of their religious status and beliefs on biblical marriage and sexuality.

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

UPDATE: A settlement agreement (full text) was reached on May 3, 2023, under which the parties will enter a revised student teacher agreement. World News Group reports on the settlement.

Wyoming Legislature Passes Abortion Bans; Governor Undecided on Whether to Sign Them

On March 3, the Wyoming legislature gave final passage to two bills outlawing most abortions. HB 152 (full text) outlaws medical and surgical abortions with several exceptions. Exceptions include ectopic pregnancy, treatment of the woman for cancer or another disease where the medical treatment may be fatal to the unborn baby, preventing the death or substantial risk of death of the mother, and incest or sexual assault (which are to be reported to law enforcement). SF 109 (full text) prohibits prescribing or distributing any abortion drug, with exceptions for imminent physical peril that endangers the woman's life or health, and for rape or sexual assault. WyoFile reports that Governor Mark Gordon is still deciding whether or not to veto either or both bills.

UPDATE: Gov. Gordon signed SF 109 and allowed HB 152 to become law without his signature.

Satanic Temple Is Not Limited Purpose Public Figure for Defamation Law Purposes

In The Satanic Temple, Inc. v. Newsweek Magazine LLC, (SD NY, March 8, 2023), a defamation suit by The Satanic Temple (TST) over a Newsweek article about it, a New York federal district court concluded that TST is not a limited purpose public figure for purposes of defamation law.  The court said in part:

,,, Plaintiff “advocates for the religious rights of its membership, and must sometimes take legal action to protect those rights.... Defendants contend that this activity is sufficient to make Plaintiff a limited purpose public figure because the “advocacy tends to attract attention.”...

But attention alone is not enough. Plaintiff must have “invited public attention to [its] views in an effort to influence others.” ... Defendants offer no evidence to show that Plaintiff “openly invited media attention,” by “issuing press releases, making public statements [or] addressing ‘open letters.’”... Plaintiff initiated lawsuits for the sole purpose of protecting the religious rights of its members, not to influence the minds of others. One does not voluntarily inject itself into a public controversy simply by filing a lawsuit to vindicate its rights, even if doing so incidentally attracts public attention.

Nevertheless, the court found that most of the statements cited by TST were not defamatory. Only a statement claiming that TST covered up sexual abuse survived the motion to dismiss. Volokh Conspiracy reports on the decision.

Michigan Legislature Adds LGBTQ Protections to State Civil Rights Act

The Michigan legislature today gave final approval to Senate Bill 4 (full text) which adds "sexual orientation" and "gender identity or expression" to the anti-discrimination provisions of the Elliott-Larsen Civil Rights Act. The bill now goes to Governor Gretchen Whitmer for her signature. Detroit News reports that she has promised to sign the bill into law. During its consideration of the bill, the Michigan Senate rejected a number of proposed religious liberty amendments. The Michigan Supreme Court previously held that existing language of the Act bars sexual orientation discrimination. The state Court of Claims has held that it also bars discrimination on the basis of gender identity. (See prior posting.) Senate Bill 4 now makes these holdings explicit.

European Court Says Russian Regulation of Proselytizing Violated Human Rights Convention

In Ossewaarde v. Russia, (ECHR, March 7, 2023), the European Court of Human Rights held that legal restrictions imposed by Russia in 2016 on religious proselytizing violated the rights of a Baptist pastor who was a U.S. national living in Russia.  The court found violations of Articles 9 (freedom religion) and 14 (prohibition of discrimination) of the European Convention on Human Rights.  The court said in part:

By requiring prior authorisation from a duly constituted religious association and excluding private homes from the list of places where the right to impart information about religion may be exercised, the new regulation has left no room for people in the applicant’s situation who were engaged in individual evangelism. The requirement of prior authorisation also eliminated the possibility of spontaneous religious discussion among members and non-members of one’s religion and burdened religious expression with restrictions greater than those applicable to other types of expression.

...  [S]o long as the new restrictions did not regulate the content of the religious expression or the manner of its delivery, they were not fit to protect society from “hate speech” or to shield vulnerable persons from improper methods of proselytism which ... could have been legitimate aims for the regulation of missionary activities.... [T]he Court finds that the need for such new restrictions, in respect of which the applicant was sanctioned for non-compliance, has not been convincingly established. Accordingly, the interference with the applicant’s right to freedom of religion on account of his missionary activities has not been shown to pursue any “pressing social need”....

While the application of the additional penalty of expulsion exclusively to non-nationals may be objectively justified by the fact that it cannot be applied to nationals, the Court finds no justification for the considerably higher minimum fines applicable to non‑nationals in respect of the same offence. The difference in treatment also appears hard to reconcile with the provisions of Russia’s Religions Act which posits that non-nationals lawfully present in Russia may exercise the right to freedom of religion on the same conditions as Russian nationals.

The court also issued a press release summarizing the decision.

Israel's Supreme Court Says Interior Ministry Must Register Marriages Performed on Zoom Through Utah

The Times of Israel and Jerusalem Post report on yesterday's decision by Israel's Supreme Court in    Ministry of the Interior v. Brill (Israel Sup. Ct., March 7, 2023) (summary and full text of decision in Hebrew). The Court ruled that the Interior Ministry's Population and Immigration Authority must register marriages of Israelis performed online through Zoom by a Deputy Clerk in the U.S. state of Utah with the other marriage participants being located in Israel. Utah County has created a fairly simple procedure for "Marriage Ceremonies By Remote Appearance." The Supreme Court's ruling affirms decisions by two separate Israeli trial courts. The Supreme Court insisted that it was ruling only on the obligation of the Registry Clerk to register the marriage once presented with the relevant documentation and was not ruling on the marriage's validity. The Registry Clerk, the Court said, did not have authority to decide the difficult legal question of whether the marriage should be seen as having taken place in Utah or in Israel.

Previously, Israeli Jewish couples wishing to marry without leaving the country have been required to marry through the Chief Rabbinate. Civil marriage has been unavailable. Some 1200 Israeli couples have already married through Utah in ceremonies performed on Zoom. According to The Times of Israel:

The court’s ruling is a significant win for advocates of civil marriage in Israel who have campaigned for it for decades, but will be bitterly opposed by the coalition’s religious parties, which denounced the decision as soon as it was published.

The controversial ruling comes as Israel is in the midst of a bitter battle over proposed judicial reforms that, among other things, would give the Knesset (the Parliament) the power through a simple majority vote to overrule Supreme court decisions.

Suit Challenges California's Protection of Out-of-State Minors Seeking Gender-Affirming Health Care

Suit was filed yesterday in a California federal district court challenging the constitutionality of California Senate Bill 107 which protects out-of-staters obtaining gender transition services for a minor in California from the reach of laws in their home states that create civil or criminal liability for allowing a minor to receive such services. The complaint (full text) in Our Watch With Tim Thompson v. Bonta, (CD CA, filed 3/7/2023), claims that:

SB 107 will allow California doctors, via telehealth appointments, to prescribe cross-sex hormones to children in South Dakota or Utah, where gender-reassignment treatment is banned. 

... SB 107 also denies parents the right to access their child’s medical information. Section 1 of the bill mandates that doctors conceal a child's medical information from parents if it is related to "gender identity" drugs and procedures. S.B. 107 § 1. 

SB 107 amended California law to directly conflict with federal law by taking away other states’ rightful jurisdiction of children visiting California who seek – or claims to be seeking – puberty blockers, cross-sex hormones, irreversible gender reassignment surgery, etc. Section 4 of SB 107 updates the California Family Code to read: “[t]he presence of a child in this state for the purpose of obtaining gender-affirming health care or gender-affirming mental health care…is sufficient to meet the requirements” for California courts to exercise jurisdiction over a custody decision. S.B. 107 § 4. This ignores the proper and rightful jurisdiction of the child’s home state....

The suit alleges that the law violates constitutional rights of familial association as well as Article IV's full faith and credit clause. Advocates for Faith & Freedom issued a press release announcing the filing of the lawsuit.

Minnesota Appeals Court Decides When Religious Reasons for Vaccine Refusal Were Proven

In three cases decided within days of each other, the Minnesota Court of Appeals wrestled with the question of whether employees' claims of religious objections to the COVID vaccine were credible.  At issue in each case was the former employee's entitlement to unemployment benefits.  If the religious claim was legitimate, vaccine refusal would not constitute disqualifying employment misconduct.

In Washa v. Actalent Scientific, LLC, (MN App, Feb. 22, 2023), the court reversed the decision of an unemployment law judge. It found that substantial evidence did not support the unemployment-law judge's finding that a medical lab technician's refusal was based on safety concerns rather than religious beliefs.  The technician had testified that he did not want to be defiled so that God could enter and he could avoid going to Hell.

In Quarnstrom v. Berkley Risk Administrators Company, LLC, (MN App., Feb. 22, 2023), the court remanded the case, finding that the unemployment-law judge had used the wrong standard in deciding whether an insurance adjustor's refusal was personal rather than religious. The court said in part:

The ULJ reasoned that Quarnstrom’s reasons for refusing the COVID-19 vaccine were not based on sincerely held religious beliefs because she did not cite to particular passages in the Bible, had not been instructed by a religious advisor to refuse the vaccine, and conceded that other members of her congregation could, consistent with their faith, choose to get a vaccine. But “the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect.”...

In McConnell v. Federal Reserve Bank of Minneapolis, (MN App, Feb. 24, 2023), the court in a 2-1 decision held that the record did not support the unemployment-law judge's conclusion that vaccine refusal by an FRB employee was based on secular, not religious, reasons.  The majority said in part:

Although McConnell testified to concerns regarding the safety of the COVID-19 vaccine, she repeatedly tied those concerns back to her faith.... [S]he testified that, although she believes in some medical interventions, she “prayerfully consider[s] things.” The ULJ found McConnell’s testimony regarding safety concerns credible and rejected her testimony regarding her religious beliefs as not credible.... The ULJ offered no reason for crediting only part of McConnell’s testimony, and we can discern none.

Judge Segal dissented, saying in part:

I would conclude that, although it implicates constitutional rights, this appeal, like many others, turns on a credibility determination that is supported by the record. As such, I believe that precedent requires that we defer to the ULJ’s credibility determination.

India's Supreme Court Rejects Petition on Renaming of Historical Cultural Religious Places

In Upadhyay v. Union of India, (Sup. Ct. India, Feb. 27, 2023), the Supreme Court of India dismissed a petition brought by a leader of a Hindu nationalist party seeking to require the government to research and publish the "original names of ‘ancient historical cultural religious places’, named after barbaric foreign invaders." According to the court:

[Petitioner] invokes the right to dignity as flowing from Article 21 of the Constitution of India. He further submits that there is his fundamental right to culture which is protected in Articles 19 and 29. Again, he refers to Article 25 as the source of his right to religion and in regard to his fundamental right to know, he leans on Article 19(1)(a). He also has brought up the concept of ‘sovereignty’ being compromised by the continuous use of the names of the ‘brutal invaders’....

Rejecting petitioner's contention, the court said in part:

India, that is ‘Bharat’ in terms of the preamble, is a secular country....

The present and future of a country cannot remain a prisoner of the past. The governance of Bharat must conform to Rule of law, secularism, constitutionalism of which Article 14 stands out as the guarantee of both equality and fairness in the State’s action....

VOA has a lengthy background article discussing the case, explaining in part:

Beginning in the 12th century, a succession of Muslim empires — most notably the Delhi sultanate and the Mughal empire — dominated the Indian subcontinent for almost seven centuries. During Muslim rule, the growth of trade and commerce was accompanied by the brisk growth of towns and cities across the country.

The Muslim rulers established many towns, naming them after themselves or their ancestors....

In the last few years, several places with Muslim-sounding names have been renamed by BJP governments....

With the rise of Prime Minister Narendra Modi, the Hindutva — nationalist groups — have increased demands for renaming many Muslim-sounding locations.

Certiorari Denied in Challenge to Police Department Prayer Vigil

The U.S. Supreme Court today denied review in City of Ocala, Florida v. Rojas, (Docket No. 22-278, certiorari denied 3/6/2023) (Order List.) In the case the U.S. 11th Circuit Court of Appeals vacated and remanded a district court's Establishment Clause decision that had relied on the now-repudiated Lemon test. The district court had granted summary judgment to plaintiffs who challenged a prayer vigil co-sponsored by the Ocala police department held in response to a shooting spree that injured several children. (See prior posting.) Justices Gorsuch and Thomas filed separate opinions (full text). Justice Gorsuch, while agreeing with the denial of certiorari, contended that the district court should also reconsider the question of plaintiffs' standing as "offended observers," saying in part:

"... [M]ost every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an ‘offended viewer’ may ‘avert his eyes’ or pursue a political solution."

Justice Thomas dissented from the denial of review, saying in part:

[W]e should have granted certiorari to review whether respondents had standing to bring their claims. Standing is an antecedent jurisdictional requirement that must be established before a court reaches the merits....

I have serious doubts about the legitimacy of the “offended observer” theory of standing applied below.

Recent Articles of Interest

From SSRN:

• Başak Çalı & Esra Demir-Gürsel, Continuity and Change in Human Rights Appropriation: The Case of Turkey, (Forthcoming ICON (2023) as part of the symposium on 'The (Mis)appropriation of Human Rights by the New Global Right' edited by Gráinne de Búrca and Katharine Young).
• Nuls Jansen, Restitution, ('Restitution', A Companion to the Spanish Scholastics, hrsgg. von Harald Ernst Braun, Erik De Bom und Paolo Astorri, Leiden 2021: Brill, S. 448-471).
• Blaine Hutchison & Bruce N. Cameron, Janus’s Solution for Title VII Religious Objectors, (February 1, 2023).
• Steven J. Heyman, Hate-Speech Bans Are Consonant with Liberal Principles, (The Oxford Handbook of Hate Speech, edited by Eric Heinze, Natalie, Alkiviadou, Tom Herrenberg, Sejal Parmar and Ioanna Tourkochoriti (Oxford: Oxford University Press, 2024-25)).
• Matthew Cavedon, Did Pope Alexander VI Authorize England’s Colonization of North America?, (Canopy Forum, 2023).
• Nathan Ristuccia, The Sacramental Test: Religion, Society, and the Constitution's Test Ban,, (Forthcoming in Texas Tech Law Review, Volume 55, Issue 4 (2023)).
• James Toomey, 'Religion,' Before Darwin, (101 Wash. U. L. Rev., Forthcoming).

From SSRN (Abortion and Reproductive Rights):

• Martin E. Gold, The Demise of Roe v Wade Undermines Freedom of Religion, (ACS Blogs, Expert Forum, August 2022).
• Joshua Schroeder, Rethinking Rights in a Disappearing Penumbra: How to Expand Upon Reproductive Rights in Court After Dobbs, (54 N.M. L. Rev. (2024 Forthcoming)).
• Cynthia Soohoo, An Embryo Is Not A Person: Rejecting Prenatal Personhood for a More Complex View of Prenatal Life, (14 ConLawNOW 81 (2023)).
• Marc Spindelman, Countering Dobbs: A Sex Equality Approach by States Could Protect Abortion Rights, and then Some, (The American Prospect (Feb. 21, 2023)).

From SSRN (Islamic Law):

• Md. Nazmul Hasan, An Analysis of Bangladesh's Progress Toward Establishing Gender-Neutral and Pro-Women Islamic Family Law, (February 25, 2023).
• Mosi Dorbayani, Islamic Law: A Challenge for International Law, (February 27, 2023).
• Muhammad bin Yahya Al-Ninowy & Yahya Alshamy, Nonviolent Jihad: The Framework of Nonviolent Action in Islam, (February 22, 2023).

From SmartCILP:

• Zeina Jallad, Plural Belonging: The Samaritans' Negotiation of Space in the Occupied Palestinian Territory, 37 American University International Law Review 551-616 (2022).
• Thomas A. Kelley III, Truth or Consequences (the Deadly Kind): Oath Swearing in Nigerien Customary Law, 47 North Carolina Journal of International Law 331-370 (2022).
• Ethan Szumanski, The Future of the Freedom of Religion on State No-Aid Provisions: The Effect of Espinoza v. Montana Department of Revenue, [Abstract], 62 South Texas Law Review 13-38 (2022).
• Eva Quinones, My Body Broken for You: The Case for Overriding Religious Medical Exemptions for Minors, [Abstract], 29 Virginia Journal of Social Policy and the Law 170-204 (2022).

Fraud Claims Against Ministry May Not Proceed as Class Action

In Carrier v. Ravi Zacharias International Ministries, Inc., (ND GA, March 3, 2023), a Georgia federal district court held that claims for unjust enrichment and violation of the Georgia Fair Business Practices Act brought against a Christian apologetics ministry and the estate of its founder cannot proceed as a class action. Plaintiffs must instead proceed only in their individual capacities. The suit alleges that some of the contributions to the organization were used to facilitate or cover up the sexual misconduct by Ravi Zacharias.(See prior related posting.) The court found several reasons that a class action was not appropriate, saying in part:

[I]t is clear that the Court must require RZIM to disclose the identities of its donors in order to certify the class defined in the First Amended Complaint. The Proposed Class is defined as: “All persons in the United States who made contributions of monetary value to Ravi Zacharias and/or the Ravi Zacharias International Ministry from 2004 through February 9, 2021.”... It is impossible to certify such a class without compelling RZIM to disclose its donor lists. Compelled disclosure of RZIM’s donor lists and identification of the donors as financial supporters of a “sexual predator” would have an impermissible chilling effect upon their First Amendment rights to associate with RZIM and other likeminded religious believers....

In theory, a class could be certified that seeks an award of damages equal to all of the hundreds of millions of dollars contributed over the 16-year class period from 2004 through February 9, 2021. But the Plaintiffs admit that RZIM used the contributions of the Proposed Class to support a mission of spreading the Gospel, teaching new apologists, and trying to help people through humanitarian efforts. None of the donors were actually harmed by their contributions to RZIM, and it appears from the face of the First Amended Complaint that only a very small amount of the money contributed to RZIM was actually used to facilitate or cover up the sexual misconduct of Zacharias. Therefore, a class-wide damages award (even if possible) of all contributions would be inequitable and implausible....

While the Plaintiffs also ask the Court to enjoin the Defendants’ “unfair and/or deceptive acts or practices,” Zacharias died on May 19, 2020.... After that, RZIM commissioned an independent investigation of his misconduct and admitted wrongdoing; the results of that investigation have been well-publicized in the Christian community.... As pled, there is no further deceptive behavior by RZIM that would warrant injunctive relief. 

6th Circuit: Muslim-Owned Company Adequately Alleged Religious and National Origin Discrimination

In Speed Way Transportation, LLC v. City of Gahanna, Ohio, (6th Cir., March 1, 2023), the U.S. 6th Circuit Court of Appeals held 2-1 that a towing company adequately alleged an equal protection claim. Plaintiffs claimed religious and national origin discrimination in the city's rejection of their bid for a three-year towing contract.  The court said in part:

Plaintiffs allege that no other business—let alone any other towing business—in the City of Gahanna, including the comparator firms Broad & James and Cal’s Towing, is owned, and operated by individuals of Egyptian national origin and Muslim faith.

Plaintiffs also sufficiently allege that they were treated differently than the two comparator firms.

Judge Suhrheinrich filed a dissenting opinion.

All 3 judges on the panel agreed that plaintiffs' other 1st and 14th Amendment claims were properly dismissed by the district court. The majority opinion said in part:

Plaintiffs have failed to allege that they engaged in “conduct”—a specific exercise of their religion—that the Free Exercise Clause protects. Lacking an allegation of “protected conduct,” the Plaintiffs cannot state a First Amendment retaliation claim based on the exercise of rights protected by the Free Exercise clause... The district court did not err in dismissing this count.

Objectors To Religious Motto on License Plates May Cover the Motto

In Griggs v. Graham, (SD MS, March 2, 2023), plaintiffs objected to the design of the default Mississippi license plates that included the state seal, a part of which was the motto "In God We Trust."  Specialty plates that carry alternative designs are more expensive, and are not available at all for trailers, RVs and motorcycles. The court, relying on the U.S. Supreme Court's 1977 decision in Wooley v. Maynard, refused to require the state to issue separate non-religious license plates, saying in part:

[A]s in Wooley, the Plaintiffs have articulated a violation of their First Amendment free speech rights. They cannot be compelled to display “In God We Trust” on their license plate. 

In Wooley, however, the Supreme Court did not require New Hampshire to create a blank license plate for persons who objected to “Live Free or Die.” No, the remedy in that case was an injunction blocking New Hampshire “from arresting and prosecuting [the Wooleys] at any time in the future for covering over [the objectionable] portion of their license plates... [T]he Supreme Court put the burden of compliance on the objectors—they were allowed to cover up the message—and then enjoined the state criminal law that penalized that action....

In Count II of their Amended Complaint, the Plaintiffs allege that the State has breached its duty of neutrality by elevating persons who believe in God while simultaneously “demonstrat[ing] . . . hostility toward the Plaintiffs and other Mississippi car owners who lack religious beliefs.”...

The Plaintiffs no doubt believe that more recent free exercise cases promise them greater rights to neutrality than this single 1977 case....  [I]f their desire is to overturn Wooley, they will have to seek that relief from a higher court.

In Romania, Roma Threaten International Litigation Against Romanian Orthodox Church

In Romania, a Roma leader is threatening to file a lawsuit in an international tribunal against the country's main religious denomination over enslavement of Roma that ended 167 years ago.  Balkan Insight reports:

Dorin Cioaba, the self-proclaimed king of the Roma in Romania, told the Conference of European Roma on Wednesday in Sibiu that he will file an international lawsuit if the Romanian Orthodox Church does not recognise its involvement in the enslavement of the Roma between the 15th and 19th centuries in the Romanian Principalities.

But a Romanian Orthodox Church spokesman, Victor Banescu, on Wednesday responded that Roma and Romanians suffered together from slavery, which was abolished in the Romanian Principalities in 1855, and said the Church should not be singled out for exclusive responsibility.

“It is unfair to select only a certain category of facts, such as ‘slavery of the Roma’, and to apply this judgment key to only one institution, the Romanian Orthodox Church,” said Banescu....

The Roma who arrived in Moldova or Wallachia at first became slaves of the rulers. Over time, they became the property of monasteries or boyars, as confirmed by medieval historical sources.

The British historian Angus Fraser, a specialist in the history of the Roma, has said: “The Roma slaves of the monasteries often lived in their premises and performed certain jobs or were servants. Their situation was superior to the field working gipsies.”

Christian Mission Challenges Narrowing of Washington State's Religious Exemption From Employment Non-Discrimination Law

Suit was filed yesterday in a Washington federal district court by a Christian social service agency contending that the Washington Supreme Court's recent interpretation of the state's employment discrimination law violates the First Amendment. The complaint (full text) in Union Gospel Mission of Yakima, Wash. v. Ferguson, (ED WA, filed 3/3/3023) alleges in part:

The Mission’s employees must adhere to certain Christian belief and behavior requirements—including abstaining from any sexual conduct outside of biblical marriage between one man and one woman—in order to properly live out and represent a Christian lifestyle and to not undermine the Mission’s religious message....

The WLAD [Washington Law Against Discrimination] used to protect the Mission by exempting religious nonprofit organizations from its provisions, but the Washington Supreme Court recently gutted the religious employer exemption, reducing it to the “ministerial exception.” See Woods v. Seattle’s Union Gospel Mission, 197 Wash. 2d 231 (2021), cert. denied, 142 S. Ct. 1094 (2022).... 

Post-Woods, Defendant Ferguson has made clear the State’s position that the WLAD now prohibits religious organizations from considering sexual orientation in hiring their non-ministerial employees....

As a result of the judicially re-written WLAD, and Defendants’ enforcement of the WLAD, the Mission now faces significant penalties for using its religiously-based hiring criteria for “non-ministerial” employees.

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

7th Circuit: Protestant Inmate's Prayer Oil Claim Dismissed In Part

In Greene v. Teslik,(7th Cir., March 2, 2023), the U.S. 7th Circuit Court of Appeals agreed that a Protestant inmate's complaint under the Free Exercise clause about the denial of prayer oil should be dismissed, but remanded his Establishment Clause claim.  The court said in part:

Greene ... contends that, by denying his request ... for the same prayer oil allowed to Muslims and Pagans, the defendants violated his rights under the Free Exercise Clause.... [W]e need not answer whether Greene was substantially or unjustifiably burdened when the defendants denied him prayer oil because we agree with the district court that the doctrine of qualified immunity prevents liability on the Free Exercise Clause claim....

Greene cites no case (nor can we find one) clearly establishing that denying access to a prayer accessory akin to a scented oil makes the practice of religion effectively impracticable. Qualified immunity was therefore appropriate....

Greene also claims that the defendants violated the Establishment Clause of the First Amendment....

[D]efendants contend that in 2013 it was not clearly established that, by denying Greene prayer oil, they would substantially burden his religion.... But that is not the right inquiry under the Establishment Clause. It has long been clearly established that “the Establishment Clause may be violated even without a substantial burden on religious practice.”... It thus “could not reasonably be thought constitutional,”...for prison staff to treat prisoners differently based on their religion—unless they present evidence that Greene was insincere or a security threat....The defendants did not do so....

[A]ny potential recovery is limited to nominal damages only. Under 42 U.S.C. § 1997e(e), Greene may not recover compensatory damages for emotional or mental injuries from a constitutional violation unless a physical injury also occurred....

Poll Worker Loses Free Exercise Challenge to Vaccine Mandate

In Wolfe v. Logan, (CD CA, Jan 25, 2023), a California federal district court in an In Chambers proceeding granted Los Angeles County officials' motion to dismiss numerous challenges by plaintiff to the county's COVID-19 vaccine mandate for poll workers. Rejecting plaintiff's Free Exercise challenge, the court said in part:

The policy, as alleged by Wolfe, is neutral and generally applicable. It does not directly target religious expression; the burden that a vaccination requirement places on religious practice is incidental. Wolfe alleges that the vaccination requirement is "without exception."... Because there are no exceptions, there is no individualized exemption process that might invite religious discrimination. Moreover, the vaccine requirement makes no distinction between secular or religious objections people might have to the vaccine; everyone is required to get one if they wish to act as a poll worker.... The policy could hardly be more neutral and generally applicable, and it is therefore not subject to strict scrutiny.

10th Circuit: Abortion Clinic Sidewalk Demonstrators Lose Challenge to Disturbing-the-Peace Ordinance

In Harmon v. City of Norman, Oklahoma, (10th Cir., March 1, 2023), the U.S. 10th Circuit Court of Appeals affirmed a trial court's dismissal of challenges to the city's disturbing-the-peace ordinance brought by abortion clinic sidewalk demonstrators who preach to clinic visitors in an attempt to persuade them against abortion. The court said in part:

The demonstrators filed a three-count complaint, seeking relief from the City and Officer Jeff Robertson under 42 U.S.C. § 1983. The complaint asserted as-applied and facial challenges to the ordinance under the Free Speech Clause, Free Exercise Clause, and the Due Process Clause of the U.S. Constitution, and further alleged that Norman failed to train its police officers. The complaint also requested preliminary and permanent injunctions to stop the City from enforcing the ordinance....

We hold that § 15-503(3) is constitutional under the Free Speech Clause as applied to the demonstrators. The demonstrators have not shown that the subsection was content-based, insufficiently tailored, or fatal to their sidewalk ministry....

The district court determined that rational-basis deference applied [to the Free Exercise claim] because the demonstrators presented no evidence that § 15-503(3) was religiously motivated. We agree....

The court went on to conclude that plaintiffs lacked standing to bring facial challenges to several portions of the Ordinance. It also concluded that the Ordinance's ban on "loud or unusual sounds" is not unconstitutionally vague or overbroad.

ACLU Launches Abortion Criminal Defense Initiative

The ACLU announced this week that it is launching an Abortion Criminal Defense Initiative. It is offering legal representation, or assistance in finding a lawyer, for individuals facing criminal investigation or prosecution related to abortion care. Its Intake Page says that its focus is on those targeted because they obtained an abortion from a doctor or other health care professional, because they helped someone else get an abortion, or were an abortion provider.

West Virginia Legislature Passes Religious Freedom Act

The West Virginia legislature yesterday gave final passage to the Equal Protection for Religion Act (full text). The bill bars state action that substantially burdens a person's exercise of religion unless there is a compelling governmental interest and the least restrictive means are used. It also prohibits treating religious conduct more restrictively than other conduct of reasonably comparable risk, or more restrictively than comparable conduct for economic reasons. It provides for injunctive or declaratory relief and recovery of costs and attorneys' fees. Among other things, the bill does not "protect actions or decisions to end the life of any human being, born or unborn..." The bill which now goes to Governor Jim Justice for his signature passed the Senate in accelerated fashion after it voted 30-3 to suspend its rules that normally require three readings. AP and the legislature's Wrap Up blog report on the bill's passage.

Mississippi Governor Signs Ban on Gender Transition Procedures for Minors

Yesterday Mississippi Governor Tate Reeves signed into law House Bill 1125, the Regulate Experimental Adolescent Procedures Act (full text). The new law bans providing gender transition procedures (including puberty blockers, hormonal treatments and surgery) for persons under the age of 18.  It also prohibits use of public funds and Medicaid coverage for such procedures and prohibits state income tax deductions for expenses of the procedures.  In a press release announcing his signing of the bill, Governor Reeves said in part:

At the end of the day, there are two positions here. One tells children that they’re beautiful the way they are. That they can find happiness in their own bodies. The other tells them that they should take drugs and cut themselves up with expensive surgeries in order to find freedom from depression. I know which side I’m on.

Department of Labor Rescinds Trump Administration Rule Broadening Religious Exemptions from Non-Discrimination Rules

The Department of Labor published in today's Federal Register a release (full text) rescinding a Trump Administration rule that defined expansively the religious exemption in the agency's rules imposing anti-discrimination requirements on government contractors and subcontractors. According to DOL:

 [T]he 2020 rule increased confusion and uncertainty about the religious exemption, largely because it departed from and questioned longstanding Title VII precedents..... 

Commenters who supported rescission overwhelmingly agreed that the 2020 preamble raised a serious risk that the rule would be implemented to permit contractors to discriminate against individuals based on protected classes other than a preference for persons of a particular religion.....

OFCCP emphasizes that, absent strong evidence of insincerity, OFCCP would accept a religious organization’s own assertions regarding doctrinal questions. However, OFCCP believes it is important to clarify that it is not appropriate to construe the Executive Order 11246 religious exemption to permit a qualifying religious organization to discriminate against employees on the basis of any protected characteristics other than religion.

Bloomberg Law reports on the rule change, (See prior related posting.)

Court Rejects Free Exercise Claim of Judge Who Was Not Reappointed Because of Vaccination Status

In Donlon v. City of Hornell, (WD NY, Feb. 27, 2023), a New York federal district court refused to issue a preliminary injunction requiring the city to appoint plaintiff to another term as an assistant city court judge. Plaintiff was denied a religious exemption from the New York court system's COVID vaccination mandate.  This meant that she was unable to conduct in-person hearings and could not maintain a criminal calendar while working virtually. The court said in part:

Plaintiff has not demonstrated that the City’s alleged reasons for denying her reappointment were either “non-neutral or not generally applicable.”... 

In her papers, Plaintiff has a tendency to conflate her vaccination status with her religious beliefs, but the two are distinct....

Plaintiff acknowledges that the City’s concern was not her religious beliefs about vaccination, but the fact that her vaccination status interfered with her “ability to do [her] job while barred from the courtroom.”...

The City’s preference for a candidate who could hold proceedings in person and maintain the criminal caseload required of the position is “religion[] neutral.”... The City is free to prefer such a candidate, and Plaintiff is not, “under the auspices of her religion, constitutionally entitled to an exemption,”... or to “preferential . . . treatment.”... Furthermore, Plaintiff presents no evidence that the City’s preference was not generally applicable—i.e., that the City relied on this preference in a selective manner, imposing “burdens only on conduct motivated by religious belief.”... There were only two candidates for the position, and, in accordance with its “religion-neutral” preference, the City selected an attorney who was vaccinated and could therefore conduct proceedings in person.

Cert. Petition Filed in Suit by Christian College Over Gender Identity Discrimination Under Fair Housing Act

 A petition for certiorari (full text) was filed yesterday asking the U.S. Supreme Court to grant review in The School of the Ozarks v. Biden. In the case, the U.S. 8th Circuit Court of Appeals held that a Christian college lacks standing to challenge a memorandum issued by an acting assistant secretary of the U.S. Department of Housing and Urban Development. The memorandum directs the HUD office that enforces the Fair Housing Act to investigate all discrimination complaints, including discrimination on the basis of sexual orientation or gender identity. The school maintains single-sex residence halls and does not permit transgender individuals to live in residence halls that do not match their biological sex. (See prior posting.) ADF issued a press release announcing the filing of the petition.

11th Circuit: Plaintiff Can Move Ahead with Claims Stemming from Denial of Kosher Meals in Jail

In Ravan v. Talton, (11th Cir., Feb. 27, 2023), the U.S. 11th Circuit Court of Appeals held that plaintiff who is Jewish should have been able to move ahead with RLUIPA claims against a food service and 1st Amendment free exercise claims against two food service workers for denial of kosher meals on seven different occasions while he was in a county detention center. The court said in part:

[I]ndividual defendants argue that depriving Ravan of a handful of meals over a period of months doesn’t constitute an impermissible burden on his religion. But the number of missed meals is not necessarily determinative because being denied three Kosher meals in a row might be more substantial of a burden on religion being denied three meals in three months, and for a diabetic, the denial of one meal may be a substantial burden. And the record is (at best) muddled about the number and timing of Kosher meals that Ravan was denied....

But we reach a different conclusion as to Summit Food Service. To state a claim against Summit Food Service, Ravan had to plead that the company had a custom or policy of not providing Kosher meals, or acquiesced in or ratified its employees’ doing so..... Ravan has not done so...

[I]nstitutions that receive federal funding are liable for monetary damages for violating RLUIPA.... But individual defendants aren’t.... We therefore reverse the dismissal of Ravan’s claim against Summit Food Service and affirm the dismissal of Ravan’s claims against the individual defendants.

2nd Circuit: Expressive Association Challenge to NY "Boss Bill" Can Move Ahead

In Slattery v. Hochul, (2d Cir., Feb. 27, 2023), the U.S. 2nd Circuit Court of Appeals held that the district court should not have dismissed an expressive association challenge to New York's "Boss Bill," a law that prohibits employers from discriminating against employees on the basis of reproductive health choices made by the employee or a dependent. Plaintiffs are anti-abortion crisis pregnancy centers and the president of one of them. The court said in part:

[W]e conclude that Evergreen plausibly alleged that § 203-e imposes severe burdens on Evergreen’s right to freedom of expressive association. The statute forces Evergreen to employ individuals who act or have acted against the very mission of its organization.... The right to expressive association allows Evergreen to determine that its message will be effectively conveyed only by employees who sincerely share its views....

Still, “[t]he right to associate for expressive purposes is not … absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”...

We hold that at this stage of the litigation, New York has not shown that § 203-e satisfies this standard....

It may be the case that preventing discrimination based on one’s choice to engage in certain, legally authorized conduct is a compelling state interest. But we need not decide that question here. Even if we answer in the affirmative, that interest cannot overcome the expressive rights of an association dedicated to outlawing or otherwise opposing that specific conduct....

The court went on to affirm the dismissal of plaintiffs' free speech, free exercise of religion and vagueness challenges. Bloomberg Law reports on the decision.