Religion Clause

Monday, June 26, 2023

Sunday, June 25, 2023

High School's Failure to Supervise Student Did Not Violate Parents' Free Exercise Rights

In Doe v. Alpine School District, (D UT, June 21, 2023), a Utah federal district court rejected claims by the parents of a high school student that the school's practice of giving students long periods of unsupervised time during the last week of the school year violated their religious free exercise rights. According to the court:

The Does are members of the Church of Jesus Christ of Latter-day Saints and have raised their son under its doctrines and to follow its practices, one of which prohibits premarital sex. The Does had previously discovered that JD had begun having sex with his girlfriend and had placed restrictions on JD’s activity to prevent him from having premarital sex thereafter, such as requiring him to be accompanied by other persons when he was with his girlfriend.... The Does learned that JD had had sex with his girlfriend in the parking lot next to the school during school hours three times during the final week of school....

The Does’ claim under the Free Exercise Clause fails because they have not alleged that the Alpine School District coerced them to abandon a religious tenet or belief. First, the school district did not coerce JD into acting against his religious beliefs. He freely chose to have premarital sex with his girlfriend, even though this was against the teachings of his religion.

Second, the Alpine School District did not coerce the Does to act contrary to their religious principles. The Does allege that they have a religious duty to encourage JD to abstain from premarital sex. The district did nothing to pressure or force the Does to refrain from passing on those teachings to her son. The Does instead argue that the district’s policies allowed JD a window of opportunity to have sex, thwarting their attempts to prevent him from doing so. In essence, the Does assert that the Alpine School District did not do enough to help them perform their religious obligations. But the Free Exercise Clause does not impose such a duty on government entities....

The court also rejected plaintiffs' 14th Amendment parental rights claim.

Ecclesiastical Abstention Doctrine Bars Court From Interpreting Foundation's Bylaws

In Foundation for the Advancement of Catholic Schools, Inc. v. The Most Reverend Leonard P. Blair, (CT Super, June 15, 2023), a Connecticut trial court held that "the constitutional bar on court jurisdiction over religious matters" required it to dismiss a suit over interpretation of the bylaws of an organization that provides scholarships for students attending Catholic schools in the Archdiocese of Hartford. At issue was whether the Archbishop could appoint Board of Trustee members other than those recommended by the Governance Committee. The court said in part:

Notwithstanding its formal status as a nonstock corporation, the court finds that FACS is a religious organization with ecclesiastical doctrine and practices. While FACS may be akin to a mutual fund in how it accepts contributions, diversifies assets, and distributes money, the mission and character of the organization is wholly marked by "clear and obvious religious characteristics."...

[T]he court cannot neutrally apply principles of corporate bylaw interpretation without intruding upon the archbishop's religious decision-making authority. Instead, the court is being asked to entangle the Superior Court of the State of Connecticut into matters of religious doctrine, religious practices and church polity.

Friday, June 23, 2023

Florida's Ban On Medicaid Payments For Puberty Blockers and Cross-Sex Hormones Is Invalid

In Dekker v. Weida, (ND FL, June 31, 2023), a Florida federal district court held that Florida Statutes §286.31(2) and Florida Administrative Code Rule 59G-1.050(7) which bar the expenditure of state funds, including Medicaid funds, for puberty blockers and cross-sex hormones violate the Equal Protection Clause and the Affordable Care Act's ban on sex discrimination, as well as provisions of the Medicaid Act. The statute and rule also ban Medicaid coverage for gender-affirming surgery, but none of the plaintiffs had standing to challenge these provisions. The court said in part:

The record establishes that for some minors, including Susan Doe and K.F., a treatment regimen of mental-health therapy followed by GnRH agonists and eventually by cross-sex hormones is the best available treatment. They and their parents, in consultation with their doctors and multidisciplinary teams, have rationally chosen this treatment. The State of Florida’s decision to ban payment for GnRH agonists and cross-sex hormones for transgender individuals is not rationally related to a legitimate state interest.

Dissuading a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest. The defendants apparently acknowledge this. But the State’s disapproval of transgender status—of a person’s gender identity when it does not match the person’s natal sex—was a substantial motivating factor in enactment of the challenged rule and statute....

The rule and statute at issue were motivated in substantial part by the plainly illegitimate purposes of disapproving transgender status and discouraging individuals from pursuing their honest gender identities. This was purposeful discrimination against transgenders....

Florida Politics reports on the decision.

Biden, Modi Respond To Questions About Religious Freedom In India

Yesterday, President Biden and Indian Prime Minister Narendra Modi who is making a state visit to the United States held a joint Press Conference (full transcript) at the White House. Reporters raised questions regarding India's treatment of religious minorities. Here is the relevant portion of the questions and answers:

Q So, as you raise these broader issues of human rights and democracy, what is your message to those — including some members of your own party — who believe that your administration is overlooking the targeting of religious minorities and a crackdown on dissent in India?

PRESIDENT BIDEN: Well, look, the Prime Minister and I had a good discussion about democratic values. And ... that’s the nature of our relationship: We’re straightforward with each other, and — and we respect each other.

One of the fundamental reasons that I believe the U.S.-China relationship is not in the space it is with the U.S.- Indian relationship is that there’s an overwhelming respect for each other because we’re both democracies. And it’s a common democratic ... character of both our countries that — and our people — our diversity; our culture; our open, tolerant, robust debate.

And I believe that we believe in the dignity of every citizen. And it is in America’s DNA and, I believe, in India’s DNA that the whole world — the whole world has a stake in our success, both of us, in maintaining our democracies. It makes us appealing partners and enables us to expand democratic institutions across — around the world. And I believe this, and I still believe this.

Q Mr. Prime Minister, India has long prided itself as the world’s largest democracy, but there are many human rights groups who say that your government has discriminated against religious minorities and sought to silence its critics. As you stand here in the East Room of the White House, where so many world leaders have made commitments to protecting democracy, what steps are you and your government willing to take to improve the rights of Muslims and other minorities in your country and to uphold free speech?

PRIME MINISTER MODI: (As interpreted.) I’m actually really surprised that people say so. And so, people don’t say it. Indeed, India is a democracy.

And as President Biden also mentioned, India and America — both countries, democracy is in our DNA. Democracy is our spirit. Democracy runs in our veins. We live democracy. And our ancestors have actually put words to this concept, and that is in the form of our constitution.

Our government has taken the basic principles of democracy. And on that basis, our constitution is made and the entire country runs on that — our constitution and government. We have always proved that democracy can deliver. And when I say deliver, this is regardless of caste, creed, religion, gender. There’s absolutely no space for discrimination.

And when you talk of democracy, if there are no human values and there is no humanity, there are no human rights, then it’s not a democracy.

And that is why, when you say “democracy” and you accept democracy and when we live democracy, then there is absolutely no space for discrimination. And that is why India believes in moving ahead with everybody with trust and with everybody’s efforts.

These are our foundation principles, which are the basis of how we operate, how we live our lives. In India, the benefits that are provided by the government is accessible to all. Whoever deserves those benefits is available to everybody. And that is why, in India’s democratic values, there’s absolutely no discrimination neither on basis of caste, creed, or age, or any kind of geographic location.

Teachers May Move Ahead with Suit Challenging Denial of Exemption from Covid Vaccine Mandate

In Brandon v. Board of Education of the City of St. Louis, (ED MO, June 21, 2023), a Missouri federal district court refused to dismiss Free Exercise and Equal Protection claims, as well as Missouri Human Rights Act and Title VII claims by 41 of the 43 teachers and staff, in a suit challenging the denial of religious exemptions from the school district's Covid vaccine mandate. Discussing plaintiffs' First Amendment claim, the court said in part:

[Eighth Circuit precedent] instructs district courts to apply Jacobson to laws passed and enforced while an emerging public-health emergency is “developing rapidly, poorly understood, and in need of immediate and decisive action,.., but the tiers of scrutiny when “time [was] available for more reasoned and less immediate decision-making by public health officials” and “the immediate public health crisis [had] dissipated,”.... Again, which standard applies depends upon a “factual determination,”..., and the Court must at this point accept Plaintiffs’ well-pleaded factual allegations as true.... Because Plaintiffs have pleaded the existence of a late-2021 policy apparently lacking the urgency that characterized the regulations and executive orders issued early in the pandemic, [precedent] compels the Court—at least for now—to apply the ordinary tiers of scrutiny to the District’s Policy as alleged.

Among the claims dismissed by the court was the claim that refusal to grant the religious exemptions violated a Missouri statute that prohibits discrimination for refusal to participate in abortions.

Thursday, June 22, 2023

Biden Announces Intent to Nominate Charlotte Burrows For Third Term on EEOC

Yesterday, President Biden announced his intent to nominate Charlotte A. Burrows for a third term as a Member of the Equal Employment Opportunity Commission. She has served as Chair of the Commission since 2021. Before her appointment to the EEOC, Burrows served as Associate Deputy Attorney General at the U.S. Department of Justice. Burrows' nomination must be confirmed by the Senate. The EEOC enforces federal employment anti-discrimination laws, including the ban on religious discrimination.

Christian Pre-School Challenges Exclusion from Colorado State Aid Program

Suit was filed this week in a Colorado federal district court challenging requirements that Colorado has imposed on pre-schools in order for them to participate and receive funding in the state's universal pre-school program. The complaint (full text) in Darren Patterson Christian Academy v. Roy, (D CO, filed 6/20/2023), alleges in part:

9.... [T]he Colorado Department of Early Childhood ... is requiring religious preschools like Darren Patterson Christian Academy to forgo their religious character, beliefs, and exercise to participate in UPK.

10. The Department does so through two provisions that prohibit discrimination against any person based on religion, sexual orientation, or gender identity.

11. So even though the school welcomes all families and children, these provisions would force it to hire employees who do not share its faith and to alter internal rules and policies that are based on the school’s religious beliefs about sexuality and gender, including those that relate to restroom usage, pronouns, dress codes, and student housing during school expeditions and field trips....

Plaintiff contends that the requirements violate its rights under the federal Constitiuion's Free Exercise, Free Speech and Equal Protection Clauses. ADF issued a press release announcing the filing of the lawsuit.

2nd Circuit Rejects Challenge to Abortion Clinic Bubble Zone Law

In Vitagliano v. County of Westchester, (2d Cir., June 21, 2023), the U.S. 2nd Circuit Court of Appeals held that plaintiff, who the court describes as "an aspiring pro-life sidewalk counselor who wishes to approach women entering abortion clinics and engage them in peaceful conversation about abortion alternatives," has standing to challenge Westchester County's recently-enacted 8-foot "bubble-zone" law. The court concluded that plaintiff has standing. She had demonstrated a credible threat of enforcement of the law against her. Plaintiff conceded that the bubble-zone law survived constitutional attack under existing Supreme Court precedent. She brought suit hoping to convince the Supreme court to overrule its 2000 decision that upheld a similar law. The 2nd Circuit thus affirmed the district court's dismissal of the challenge to Westchester County's ordinance, opening the way for appellant to seek Supreme Court review. Becket has background on the case.

Wednesday, June 21, 2023

Colorado Window to Bring Expired Child Sex Abuse Claims Is Unconstitutional

In Aurora Public Schools v. A.S., (CO Sup.Ct., June 20, 2023), the Colorado Supreme Court held that the Child Sexual Abuse Accountability Act

is unconstitutionally retrospective [under Art. II, Sec. 11 of the Colorado Constitution] to the extent that it permits a victim to bring a claim for sexual misconduct based on conduct that predates the Act and for which previously available causes of action were time-barred.

The Act created a 3-year window during which victims could bring claims for any child sexual abuse that occurred between 1960 and 2022. In the case, plaintiffs sued a former high school coach and his school district for sexual abuse that occurred between 2001 and 2005. The court said in part:

The legislature was careful with S.B. 21-088 not to directly revive time-barred claims, which would plainly impair vested rights.... Instead, it created a three-year window to bring a new cause of action to accomplish the same ends. But the retrospectivity clause prohibits the legislature from “accomplish[ing] that indirectly, which it could not do directly.”...

... Our holding does not affect claims brought under the CSAAA for which the previously applicable statute of limitations had not run as of January 1, 2022.

AP reports on the decision.

RFRA Requires Title VII Exemption for Business Operating on Christian Gender Beliefs

In Braidwood Management, Inc. v. EEOC, (5th Cir., June 20, 2023), the U.S. 5th Circuit Court of Appeals held that RFRA requires an exemption from the sex discrimination provisions of Title VII for a company that operates three related health and wellness businesses on the basis of Christian beliefs regarding sexual orientation and gender identity. The court said in part:

RFRA requires that Braidwood ... be exempted from Title VII because compliance with Title VII post-Bostock would substantially burden its ability to operate per its religious beliefs about homosexual and transgender conduct. Moreover, the EEOC wholly fails to carry its burden to show that it has a compelling interest in refusing Braidwood an exemption, even post-Bostock....

Although the Supreme Court may some day determine that preventing commercial businesses from discriminating on factors specific to sexual orientation or gender identity is such a compelling government interest that it overrides religious liberty in all cases, it has never so far held that....

Under RFRA, the government cannot rely on generalized interests but, instead, must demonstrate a compelling interest in applying its challenged rule to “the particular claimant whose sincere exercise of religion is being substantially burdened.”...

[T]he EEOC fails to carry its burden. It does not show a compelling interest in denying Braidwood, individually, an exemption. The agency does not even attempt to argue the point outside of gesturing to a generalized interest in prohibiting all forms of sex discrimination in every potential case. Moreover, even if we accepted the EEOC’s formulation of its compelling interest, refusing to exempt Braidwood, and forcing it to hire and endorse the views of employees with opposing religious and moral views is not the least restrictive means of promoting that interest.

Reuters reports on the decision.

Court Enjoins Arkansas Ban on Gender-Affirming Medical Care

In Brandt v. Rutledge, (ED AR, June 20, 2023), an Arkansas federal district court in an 80-page opinion permanently enjoined the state from enforcing Act 626, the state's ban on gender-affirming medical care for minors. The court, finding that the Act violates the14th Amendment's equal protection and due process clauses, as well as the 1st Amendment's free speech protections, said in part:

Act 626 prohibits a physician or other healthcare professional from providing “gender transition procedures” to any individual under eighteen years of age and from referring any individual under eighteen years of age to any healthcare professional for “gender transition procedures.”...

The State claims that by banning gender-affirming care the Act advances the State’s important governmental interest of protecting children from experimental medical treatment and safeguarding medical ethics. Throughout this litigation, the State has attempted to meet their heavy burden by offering the following assertions in support of banning gender-affirming medical care for adolescents: (i) that there is a lack of evidence of efficacy of the banned care; (ii) that the banned treatment has risks and side effects; (iii) that many patients will desist in their gender incongruence; (iv) that some patients will later come to regret having received irreversible treatments; and (v) that treatment is being provided without appropriate evaluation and informed consent. The evidence presented at trial does not support these assertions....

Even if the Court found that Act 626 passed constitutional muster under the Equal Protection Clause, it fails under due process analysis....

As the Court has previously found, the Parent Plaintiffs have a fundamental right to seek medical care for their children and, in conjunction with their adolescent child’s consent and their doctor’s recommendation, make a judgment that medical care is necessary. “[T]the Fourteenth Amendment ‘forbids the government to infringe . . . ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.’”...

Act 626 is a content and viewpoint-based regulation of speech because it restricts healthcare professionals from making referrals for “gender transition procedures” only, not for other purposes. As a content and viewpoint-based regulation, it is “presumptively unconstitutional” and is subject to strict scrutiny...

Arkansas Attorney General Tim Griffen in a statement said that he plans to appeal the decision to the 8th Circuit. The Hill reports on the court's decision.

Supreme Court Denies Review in Christian College's Challenge to Fair Housing Act Enforcement

The U.S. Supreme Court yesterday denied review in The School of the Ozarks v. Biden, (Docket No. 22-816, certiorari denied, 6/20/2023). (Order List). In the case, the U.S. 8th Circuit Court of Appeals held in a 2-1 decision 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's religiously-inspired Code of Conduct specifies that biological sex determines a person's gender. 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.)

Tuesday, June 20, 2023

Supreme Court GVR's South Carolina Planned Parenthood Defunding Case

In Kerr v. Planned Parenthood, (Sup. Ct., Docket No. 21-1431, June 20, 2023) (Order List), the Supreme Court remanded for further consideration South Carolina's appeal of a 4th Circuit decision that barred South Carolina from terminating Medicaid funding to Planned Parenthood. The Court's action today granted certiorari, vacated the judgment below and remanded the case in light of the Court's June 8, decision in Health and Hospital Corporation of Marion Cty. v. Talevski. That case held that 42 USC §1983 may be used to enforce rights created by statutes enacted under Congress' spending power, a holding consistent with the 4th Circuit's decision below in Kerr. Here is the SCOTUSblog's case page for the Kerr case, with links to all the pleadings and briefs in the case. Reuters reports on today's Supreme Court ruling.

Army Appeals Court: Poisoning Through Vodou Not Protected by Free Exercise Clause or RFRA

In United States v. Lindor, (ACCA, June 14, 2023), the Army Court of Criminal Appeals rejected appellant's claim that his murder sentence violated his free exercise rights under the 1st Amendment and RFRA. The case involves a Staff Sergeant who, after multiple attempts, succeeded in murdering his wife through the use of rituals and poisons recommended by a Vodou practitioner in Haiti. The court said in part:

[A]ppellant's actions to summon Vodou rituals ... were consistent with his First Amendment right to freely exercise his religious beliefs.... [T]he record contains no indication that they called for any illegal activity or result.... The stipulation's derogatory references to these Vodou rituals—after all, they were categorized as "aggravation" evidence—violated the First Amendment's free exercise clause. The government, consistent with the Constitution's guarantee of free exercise, "cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices."...

However, our analysis does not end there,.... [Appellant] waived his objection to evidence of these particular spells in two ways.... First, the military judge directly advised appellant and his counsel that, if he admitted it, he would consider the stipulation of fact to decide whether appellant was guilty, and, if so, an appropriate sentence; appellant and his counsel agreed. Second, the military judge specifically asked appellant's counsel whether he had any objections to the stipulation; counsel responded, "No, Your Honor."...

Turning to appellant's violence toward RL, we view this as substantially different from the rituals about AD and government officials. We have searched for, but cannot find, any authority to support appellant's tacit argument that the First Amendment's "free exercise" clause can broadly shield one from government action to describe, prosecute, and punish conduct that unlawfully endangers another person's life...

Put plainly, we decline to characterize appellant's violent misconduct toward RL as the free exercise of religious belief.... [A]ctivities that harm others are not protected by the free exercise clause. To characterize appellant's chosen techniques to plan, express, and actuate his intent to murder RL as the free exercise of his religious beliefs would expropriate the free exercise clause of any principled, reasonable meaning. The United States Constitution's framers and the various ratifying conventions plainly and deliberately did not contemplate that one could seek protection in the clause for an act that violated another's right to be free from malicious violence.

FBI Charges Michigan Man with Plotting Mass Casualty Attack at Synagogue

Last week, the FBI filed a Criminal Complaint charging a 19-year-old Michigan man with taking steps to plan a mass casualty suicide attack on a synagogue in Lansing, Michigan. The Criminal Complaint (full text) in United States v. Seann Patrick Pietila, (WD MI, filed 6/16/2023) sets out extensive Instagram postings and alleges in part:

[Pietla] communicated Neo-Nazi style ideology, antisemitism, suicidal ideologies, glorification of past mass shooters (that advocate similar ideology), and a desire and his intent to mimic past mass shooters/mass casualty incidents.

... [He] specifically references admiration for Brenton Tarrant.... Tarrant committed acts of mass murder in New Zealand. On March 15, 2019, Tarrant committed two consecutive mass shootings on Mosques located in New Zealand. Tarrant killed 51 people and injured 40 more. Tarrant live-streamed his attack via Facebook Live.

The Criminal Complaint alleges violation of 18 U.S.C. § 875(c) which bans sending in interstate commerce any communication containing a threat to injure another person, reports:

During the execution of the search warrant, investigators located the following items of evidence: .40 caliber pistol ammunition, .22 caliber ammunition, 12 gauge shotgun ammunition, a 12-gauge shotgun, a .22 caliber rifle, a Sig Sauer .40 caliber pistol (serial # 24B049058), .223 rifle magazines, an Apple iPhone 11, various knives and bladed instruments, scopes and firearms accessories, a camouflage tactical vest, a black tactical vest, black skull masks, a red and white Nazi flag, a ghillie suit, gas masks, and military sniper/survival manuals.

Law & Crime reports on the charges.

Monday, June 19, 2023

Sunday, June 18, 2023

California Law Does Not Interfere With Pre-Schools' Religious Curriculum

In Foothills Christian Church v. Johnson, (SD CA, June 15, 2023), a California federal district court dismissed a free exercise challenge by Christian pre-schools to California's child care licensing requirement. It held that California's Child Day Care Facilities Act does not prevent the schools from offering a program that includes compulsory participation in religious activities and events. While the Act requires that schools make attendance at religious activities voluntary in the discretion of the child's parents or guardian, it also allows schools to refuse to admit children whose parents or guardians are unwilling to agree that their children will attend religious instruction and activities. The court thus held that since plaintiffs inaccurately assessed the Act's requirements, they lack standing to pursue their free exercise claims.

Iowa Supreme Court, 3-3, Affirms Invalidation Of Heartbeat Abortion Law

As previously reported, in 2019 an Iowa state trial court judge held that Iowa's "fetal heartbeat" abortion law violates the Iowa state constitution. The case was not appealed. However, in 2022 the state filed a motion to dissolve the injunction and revive the law. The trial court refused to do so, and that decision was appealed to the Iowa Supreme Court. Now in Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Sup. Ct., June 16, 2023), the Iowa Supreme Court announced that it was evenly divided, 3-3, on the case (with one Justice recused), so that by operation of law the trial court's decision stands. However individual Justices filed opinions in the case.

The newly decided case was made more complicated by a decision of the Iowa Supreme Court last year in which it rejected subjecting a different abortion regulation to strict scrutiny under the state Constitution, but did not decide what level of scrutiny should apply. This left the standard to be the undue burden test imposed by federal law. (See prior posting.)

Now in last week's decision on the fetal heartbeat law, Justice Waterman (joined by Chief Justice Christensen and Justice Mansfield ) wrote that they would not grant the discretionary writ of certiorari, thus refusing to review the trial court decision. He went on to indicate that even if review were granted, they would affirm the trial court, saying in part:

The law as of today has not changed in a way that removes the “constitutional defect” in the fetal heartbeat bill. The undue burden test remains the governing standard under the Iowa Constitution, and the State concedes, as it must, that the fetal heartbeat bill is unconstitutional under that test. The State therefore has failed to establish that the district court acted illegally. There is no basis for certiorari relief.

Justice McDonald filed a separate opinion, joined by Justices McDermott and May, saying in part:

Because there was no controlling decision from this court..., the district court should have applied this court’s other controlling precedents to constitutional claims of this type. Under this court’s controlling precedents, where there is no fundamental right at issue, statutes are subject only to rational basis review.

Justice McDermott filed a separate opinion, joined by Justices McDonald and May, saying in part:

Last year, we were presented with an appeal challenging the constitutionality of a different statute regulating abortion, yet we failed to declare the constitutional standard that applied. This case again presented that same basic task. And for the second time in as many years, we’ve ducked it. It isn’t for us to dictate abortion policy in the state, but simply to interpret and apply the law as best we can in cases that come before us. We fail the parties, the public, and the rule of law in our refusal today to apply the law and decide this case.

Des Moines Register reports on reactions to the decision.

Thursday, June 15, 2023

Maine Sued Over New Limits On Religious Schools In Tuition Payment Program

On Tuesday, a Catholic school in Maine and parents who would like to send their children to that school under Maine's tuition payment program for students from districts without public high schools filed suit in a Maine federal district court challenging new restrictions which the Maine legislature imposed on schools participating in the tuition payment program. The complaint (full text) in St. Dominic Academy v. Makin, (D ME, filed 6/13/2023), contends that the legislature enacted the new provisions to exclude religious schools after the U.S. Supreme Court in Carson v. Makin invalidated a requirement that participating schools be nonsectarian. The complaint explains:

Among other things, Maine:

• Imposed a new religious neutrality requirement on schools, stating that “to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing”;

• Imposed a new religious nondiscrimination requirement on schools; and

• Removed the religious exemption that had previously allowed religious (but “nonsectarian”) schools to handle sensitive issues relating to sexual orientation and gender identity in a way that reflected their faith commitments....

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

Religion Is Relevant In Trial For Marketing Unlicensed Drug

In United States v. Grenon, (SD FL, June 12, 2023), a Florida federal district court, ruled on a motion in liwas through which the government was seeking to exclude various pieces of evidence in the criminal trial of defendants for manufacturing, marketing and distributing an unlicensed drug. The court summarized the charges against defendants:

Defendants are members of Genesis II Church of Health and Healing ... which the Government alleges is “an explicitly nonreligious entity that [Defendant, Mark Scott Grenon] co-founded[.]”...

Under the guise of Genesis, Defendants promoted MMS as a miracle cure to various illnesses and ailments, even though “[w]hen ingested orally as directed by [] Defendants, MMS became chlorine dioxide, a powerful bleaching agent typically used for industrial water treatment or bleaching textiles, pulp, and paper.”...

The court ruled in part:

The Government first seeks to prevent Defendants from suggesting that their conduct was “a religious exercise, constitutionally protected under the First Amendment.”...

... [C]onsidering the Government’s accusations regarding Defendants and Genesis..., it would likely be impossible to conduct this trial without discussion of Defendants’ alleged religion, as well as their personal beliefs regarding the First Amendment...

The court also refused to preclude defendants from raising a defense under RFRA, but did rule that the applicability of RFRA is a pure question of law so that no jury instruction on the applicability of RFRA should be permitted.

Church Autonomy Doctrine Requires Dismissal of Title VII Claim By Non-Ministerial Employee

In McMahon v. World Vision Inc., (WD WA, June 12, 2023), a Washington federal district court dismissed a Title VII sex discrimination suit, finding it is barred by the Church Autonomy Doctrine. A Christian ministry's job offer to plaintiff for the full-time position of Donor/Customer Service Representative Trainee was rescinded when defendant learned that plaintiff was in a same-sex marriage. The court discussed the relationship between the Church Autonomy Doctrine and the Ministerial Exception, concluding that the Church Autonomy Doctrine may be invoked when a non-ministerial employee brings a Title VII action. The court said in part:

... [T]he Church Autonomy Doctrine requires the court to abstain from resolving employment discrimination claims where a religious institution takes an adverse action pursuant to a religious belief or policy—regardless of whether the employer allegedly discriminated on religious or other protected grounds—unless it is possible for the court resolve the claims without resolving underlying controversies over religious doctrine or calling into question the reasonableness, validity, or truth of a religious doctrine or practice....

The court joins other courts ... in cautioning religious employers against over-reading the impact of the court’s holding. It is by no means the case that all claims of discrimination against religious employers are barred.... [I]f a religious employer does not offer a religious justification for an adverse employment action against a non-ministerial employee or if the plaintiff presents sufficient secular evidence that would allow a factfinder to conclude that the religious justification was pretext without wading into the plausibility of the asserted religious doctrine, it is unlikely that serious constitutional questions will be raised by applying Title VII.

Wednesday, June 14, 2023

New York Sues Anti-Abortion Group That Physically Obstructs Clinics

New York Attorney General Letitia James announced last week that she has filed suit against the anti-abortion group Red Rose Rescue and various of its members seeking to enjoin them from physically interfering with persons seeking abortions or providing abortion services. The complaint (full text) in People of the State of New York v. Red Rose Rescue, (SD NY, filed 6/8/2023), alleges in part:

8. Red Rose Rescue is an anti-abortion group whose members conspire to illegally trespass into private medical facilities that perform abortions and shut down or physically obstruct the provision of all reproductive health services, refusing all requests to leave by staff and law enforcement.

9. Criminal trespass at reproductive health facilities is not incidental to Red Rose Rescue members’ activism, but rather is the core mission of their group.

The complaint alleges violations of the federal Freedom of Access to Clinic Entrances Act and New York's Clinic Access Act. In addition to injunctive relief, the suit also seeks damages and civil penalties. Catholic News Agency reports on the lawsuit.

9th Circuit: U.S. Has Not Waived Sovereign Immunity For Damages Under RFRA

In Donovan v. Vance, (9th Cir., June 13, 2023), the U.S. 9th Circuit Court of Appeals held that claims for injunctive and declaratory relief by Department of Energy employees who objected to the government's Covid vaccine mandate are moot because the Executive Orders being challenged have been revoked. Insofar as employees with religious objections to the vaccine were seeking damages, the court held that the United States has not waived sovereign immunity for damages under RFRA. Plaintiffs had sued federal officials in their official capacity.

Labor Department Says Restaurant Used Alleged Priest to Obtain Confessions From Employees

A June 12 press release from the Department of Labor which announced a wage-and-hour consent judgment (full text) in Su v. Garibaldi, (ED CA, 5/8/2023), described testimony during the litigation that revealed an unusual use of religious pretext. The press release relates, in part:

... [A]n employee of Che Garibaldi Inc., operator of Taqueria Garibaldi, testified that the restaurant offered employees a person identified as a priest to hear confessions during work hours. The employee told the court the priest urged workers to “get the sins out,” and asked employees if they had stolen from the employer, been late for work, had done anything to harm their employer, or if they had bad intentions toward their employer.

[Thanks to Jeff Pasek for the lead.]

Tuesday, June 13, 2023

Court Says Center's Food Distribution Is Likely a Religious Exercise Under RLUIPA

In Micah's Way v. City of Santa Ana, (CD CA, June 8, 2023), a California federal district court refused to dismiss a suit by a center that provides aid to impoverished and disabled individuals claiming that the city has violated its rights under RLUIPA and the First Amendment by refusing to issue it a Certificate of Occupancy unless it agrees to stop providing food and beverages to its clients. While the center had operated for 5 years without a certificate of occupancy, the city began a concerted effort to get Micah's Way as well as a needle exchange program nearby to move out of the neighborhood after the city's mayor who lived nearby experienced a break-in at his home. The court held that Micah's Way plausibly alleged that its food distribution activities are a "religious exercise" under RLUIPA and that the city has substantially burdened that religious exercise. The court also concluded that plaintiff has plausibly alleged a violation of the 1st Amendment's Free Exercise clause. Voice of OC reports on the decision.

Minnesota Appeals Court Decides 4 Cases on Religious Exemptions from Vaccine Mandates

Yesterday, the Minnesota Court of Appeals decided four separate appeals from decisions of Unemployment Law Judges who denied unemployment benefits because an applicant refused on religious grounds to comply with an employer's Covid vaccine mandate. Goede v. Astra Zeneca Pharmaceuticals, LP, (MN App., June 12, 2023), was the only one of the four cases published as a precedential decision. The court affirmed the ULJ's denial of benefits even though the state Department of Employment and Economic Development urged its reversal. The court said in part:

The ULJ found that “Goede does not have a sincerely held religious belief that prevents her from receiving a COVID-19 vaccine.” The ULJ explained: “Goede’s testimony, when viewed as a whole, shows by a preponderance of the evidence that Goede’s concern is about some vaccines, and that she is declining to take them because she does not trust them, not because of a religious belief.” The ULJ further stated that “[w]hen looking at the totality of the circumstances, Goede’s belief that COVID-19 vaccines are not okay to put in her body is a personal belief not rooted in religion.”

In Daniel v. Honeywell International, Inc., (MN App., June 12, 2023), the appellate court again upheld a denial of benefits, this time to a former employee who refused both the Covid vaccine and refused to comply with the employer's religious accommodation. The court said in part:

Relator asserts that Honeywell’s COVID-19 policy requiring that he get weekly COVID-19 tests and submit the results “required [him] to defy [his] religious faith.” He asserts that he was upholding his religious faith “by practicing [his] God given right of ‘control over [his] medical’ by not subjecting Jesus Christ’s temple to forcefully coerced medical treatments such as weekly PCR and/or rapid antigen test requirements.”...

The ULJ found that relator lacked credibility because he provided inconsistent testimony and he struggled to explain his religious beliefs.

The court reversed the ULJ's denial of benefits in two other cases. In Benish v. Berkley Risk Administrators Company, LLC, (MN App., June 12, 2023) the court said in part:

The ULJ found that Benish made a “personal choice” to refuse the vaccine, but Benish did not testify to any personal reasons for refusing the vaccine. Instead, he consistently testified that his reason for refusing it was religious. The ULJ also placed improper weight on inconsistencies in Benish’s religious beliefs and on the fact that the Pope had encouraged vaccination in determining that Benish’s beliefs were not sincerely held....

... [W]e conclude that the ULJ’s finding—that Benish did not have a sincerely held religious belief that precluded him from getting a COVID-19 vaccine—is unsupported by substantial evidence and must be reversed.

In Millington v. Federal Reserve Bank of Minneapolis, (MN App., June 12, 2023), the court reversed the ULJ's denial of benefits, saying in part:

Millington clearly and consistently testified regarding her religious reasons for refusing the COVID-19 vaccine. Millington’s testimony concerning personal reasons for refusing the vaccine— that she already had COVID-19 and believed she did not need the vaccine and that she had concerns about the safety of the vaccine—are not sufficient to constitute substantial evidence.

In addition, although we generally defer to a ULJ’s credibility findings, the ULJ’s credibility finding in this case was based on at least two erroneous considerations. First, the ULJ erred by relying on the absence of direction from a religious leader to support a finding that Millington did not have a sincerely held religious belief.... Second, the ULJ failed to explain how Millington’s use of over-the-counter medications or alcohol is pertinent to her objection to the COVID-19 vaccine based on its relationship to fetal cell lines. Consequently, the ULJ’s credibility determination is not entitled to the same deference typically owed by an appellate court.

Supreme Court Denies Cert. In Two Ministerial Exception Cases

The U.S. Supreme Court yesterday denied review in two cases which held that interlocutory appeals from denial of a ministerial exception defense are not allowed. (Order List).

Faith Bible Chapel International v. Tucker, (Docket No. 22-741, certiorari denied 6/12/2023), involves a former high school teacher and administrator/ chaplain who contends that he was fired for opposing alleged racial discrimination by a Christian school. In the case, the 10th Circuit denied en banc review. (See prior posting).

Synod of Bishops v. Belya, (Docket No. 22-824, certiorari denied 6/12/2023) involves a suit in which plaintiff contends 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. In the case, the 2nd Circuit denied en banc review. (See prior posting).

Monday, June 12, 2023

Court Tells Catholic Bookstore to Litigate Over Religious Organization Exception to Nondiscrimination Law

In The Catholic Bookstore, Inc. v. City of Jacksonville, (MD FL, June 9, 2023), a Florida federal district court found that a Catholic bookstore has standing to challenge Jacksonville's Human Rights Ordinance on free speech grounds. It also concluded that the claim is ripe. The bookstore wants to publicize its policy requiring its staff to address co-workers and customers only by "pronouns and titles that align with the biologically originating sex of the person being referenced...." The city's Ordinance provides in part that it is unlawful to publish, circulate or display any communication indicating that service will be denied, or that patronage is unwelcome from a person because of sexual orientation or gender identity. The court, however, concluded that it is unclear whether the Human Rights Ordinance's religious organization exception applies to the bookstore. The court went on to deny plaintiff's motion for a preliminary injunction, dismiss plaintiff's complaint without prejudice, and ordered plaintiff to file an amended complaint followed by a motion for summary judgment limited to the religious exception issue so it can resolve that issue before dealing with the rest of the case.

Tennessee Human Rights Act Does Not Require Religious Accommodation

In Johnson v. Tyson Foods, Inc., (WD TN, June 8, 2023), a Tennessee federal district court dismissed the remaining state law claims in a suit by a human resources manager who refused for religious reasons to comply with the company's Covid vaccine mandate. Plaintiff was fired after rejecting an unpaid leave alternative. In rejecting plaintiff's religious discrimination argument under the Tennessee Human Rights Act, the court said in part:

This Court is not aware of any case law holding that the THRA requires employers to accommodate an employee’s religious beliefs and practices, and the Court will not read such a requirement into the statute

Friday, June 09, 2023

3rd Circuit Hears Oral Arguments In Abortion Clinic Buffer Zone Challenge

The U.S. 3rd Circuit Court of Appeals yesterday heard oral arguments in Reilly v. City of Harrisburg (audio of full oral arguments). In the case below (MD PA, March 28, 2022) (full text), the court dismissed a suit by anti-abortion sidewalk counselors to Harrisburg's ordinance creating a 20-foot buffer zone designed to exclude protesters around health-care facilities, including abortion clinics. Liberty Counsel issued a press release previewing its arguments for appellants in the case.

White House Announces New Initiatives to Protect LGBTQI+ Communities

The White House yesterday released Fact Sheet: Biden-⁠Harris Administration Announces New Actions to Protect LGBTQI+ Communities (full text). It reads in part:

Today, in celebration of Pride Month, the Biden-Harris Administration is announcing new actions to protect LGBTQI+ communities from attacks on their rights and safety. Over a dozen states have enacted anti-LGBTQI+ laws that violate our most basic values and freedoms as Americans, and are cruel and callous to our kids, our neighbors, and those in our community. The Biden-Harris administration stands with the LGBTQI+ community and has their backs in the face of these attacks....

The Fact Sheet announced new federal action, including a new LGBTQI+ Community Safety Partnership and new initiatives to deal with LGBTQI+ youth homelessness, foster care and mental health. It also announced the release of federal funds "to support programs that help parents affirm their LGBTQI+ kids." Additionally, it announced initiatives to counter book bans, which "disproportionately strip books about LGBTQI+ communities, communities of color, and other communities off of library and classroom shelves." The Department of Education will appoint a coordinator to "work to provide new trainings for schools nationwide on how book bans that target specific communities and create a hostile school environment may violate federal civil rights laws."

Thursday, June 08, 2023

Religious Challenge to Indiana Abortion Restrictions Certified as Class Action

In Anonymous Plaintiff 1 v. Individual Members of the Medical Licensing Board of Indiana, (IN Super. Ct., June 6, 2023), an Indiana state trial court judge agreed to certify as a class action a suit challenging Indiana's statute restricting abortions. In the case, the court has already granted a preliminary injunction to plaintiffs whose religious beliefs permit or require abortions in situations not allowed under Indiana law. (See prior posting.) The court certified the class as:

All persons in Indiana whose religious beliefs direct them to obtain abortions in situations prohibited by Senate Enrolled Act No. 1(ss) who need, or will need, to obtain an abortion and who are not, or will not be, able to obtain an abortion because of the Act.

Indiana Capital Chronicle reports on the decision.

Court Enjoins Enforcement of Florida's Ban on Treatment of Gender Dysphoria in Minors

In Doe v. Ladapo, (ND FL, June 6, 2023), a Florida federal district court issued a preliminary injunction barring Florida from enforcing against plaintiffs its ban on puberty blockers and cross-sex hormones for treating minors who have gender dysphoria. The court said in part:

The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear. The medical defendants, speaking through their attorneys, have admitted it. At least one defense expert also has admitted it....

Despite the defense admissions, there are those who believe that cisgender individuals properly adhere to their natal sex and that transgender individuals have inappropriately chosen a contrary gender identity, male or female, just as one might choose whether to read Shakespeare or Grisham....

Addressing plaintiffs' equal protection challenge, the court said in part that "Drawing a line based on gender nonconformity—this includes transgender status—... triggers intermediate scrutiny." The court went on to say in part:

The record establishes that for some patients, including the three now at issue, a treatment regimen of mental-health therapy followed by GnRH agonists and eventually by cross-sex hormones is the best available treatment. These patients and their parents, in consultation with their doctors and multidisciplinary teams, have rationally chosen this treatment. The State of Florida’s decision to ban the treatment is not rationally related to a legitimate state interest.

Dissuading a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest....

The defendants say the many professional organizations that have endorsed treatment of gender dysphoria with GnRH agonists and hormones all have it wrong. The defendants say, in effect, that the organizations were dominated by individuals who pursued good politics, not good medicine.

If ever a pot called a kettle black, it is here. The statute and the rules were an exercise in politics, not good medicine.

Human Rights Campaign issued a press release announcing the decision.

Wednesday, June 07, 2023

European Court: Ukraine Violates Human Rights Convention by Denying Legal Recognition to Same-Sex Couples

In Maymulakhin & Markiv v. Ukraine, (ECHR, June 1, 2023), the European Court of Human Rights in a Chamber Judgment held that Ukraine violated Article 14 (prohibition of discrimination) of the European Convention on Human Rights taken in conjunction with Article 8 (right to respect for private and family life) by denying any form of legal recognition to same-sex couples. The Court said in part:

While the Court has to date not interpreted Article 8 of the Convention as imposing a positive obligation on the States Parties to make marriage available to same-sex couples, it has confirmed that in accordance with their positive obligations under that provision, the member States are required to provide a legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship.... The Court has also held that Contracting States enjoy a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same sex couples....

The Court ordered Ukraine to pay the two petitioners 5032 Euros each as damages and to pay 4000 Euros for costs and attorney's fees.

The Court also issued a press release (PDF download link) summarizing its decision.

Nevada Governor Vetoes Medical-Aid-In-Dying Bill

On Monday, Nevada Governor Joe Lombardo vetoed (full text of veto message) S.B. 239 (full text) which would have authorized physicians and advanced practice registered nurses to prescribe medications which a patient certified to be terminally ill could self-administer to end his or her own life. The Governor said in part:

Fortunately, expansions in palliative care services and continued improvements in advanced pain management make the end-of-life provisions in SB 239 unnecessary.

KLAS News reports on the governor's action.

State Law May Bar Women's Spa from Refusing to Serve Transgender Women Who Have Not Had Sex-Confirmation Surgery

In Olympus Spa v. Armstrong, (WD WA, June 5, 2023), a Washington federal district court dismissed, with leave to amend, a suit by a Korean style spa designed for women. The suit challenges Washington's public accommodation law which bars discrimination, among other things, on the basis of gender expression or identity. Because spa patrons are required to be naked during certain spa services (massages and body scrubs), the spa refuses to serve transgender women who have not gone through post-operative sex-confirmation surgery. The spa advertises itself as welcoming "biological women." Three of the spas employees and one of its patrons are also plaintiffs in the case. Plaintiffs claim that their requiring them to service nude males and females in the same rooms substantially burdens the exercise of their religious beliefs. The court held however that because the public accommodation law is neutral and generally applicable, it needs to meet only rational basis review and does so because of the state's interest in ensuring equal access to public accommodation.

The court also rejected plaintiffs' claim that their free expression rights were violated by requiring them to remove language from their website that only "biological women" are females. The court said in part:

The WLAD [Washington Law Against Discrimination] bars Olympus Spa from denying services to customers based on sexual orientation and, in this regard, it incidentally burdens Olympus Spa’s speech by prohibiting advertisement of discriminatory entrance policies (e.g., one that permits only “biological women”). But that does not convert the WLAD into a content-based regulation....

Finally, the court dismissed plaintiffs' freedom of association claims, saying in part:

The Court does not minimize the privacy concerns at play when employees are performing exfoliating massages on nude patrons. Aside from this nudity, though, there is simply nothing private about the relationship between Olympus Spa, its employees, and the random strangers who walk in the door seeking a massage. Nor is there anything selective about the association at issue beyond Olympus Spa’s “biological women” policy. The Court therefore has little difficulty concluding that the personal attachments implicated here are too attenuated to qualify for constitutional protection.

Tuesday, June 06, 2023

Miami Beach Settles Synagogue's Zoning Harassment Lawsuit for $1.3M

Miami Herald reports that a dispute between the Orthodox Jewish Congregation Bais Yeshaya D’Kerestir and Miami Beach, Florida zoning officials that was scheduled to go to trial in federal court yesterday has been settled, with the city agreeing to pay the Congregation $1.3 million on its 1st Amendment Code enforcement harassment lawsuit. (The city has already spent $1.7 million in legal fees on the case.) The city claimed that the 4-bedroom property at issue was operating as a synagogue in an area zoned residential. According to the Miami Herald:

People pray at the home daily, including for a minyan that requires at least 10 Jewish men to be present, according to the congregation. The congregation and its rabbi, Arie Wohl, argued that those prayer sessions — which sometimes include dozens of people, according to the city — are invitation-only and therefore constitute “private prayer.”

“Just as any homeowner may invite friends for a Cub Scout meeting or a book club, Plaintiff and the full-time resident invite friends and family to join them for private prayer in their home,” the federal lawsuit says.

But the city says activity at the home went beyond private prayer. Code enforcement officers, using body-worn cameras, said they found evidence the house was operating as a synagogue, including an industrial-size coffee urn, a community bulletin board and benches for up to 30 people.

As part of the settlement agreement, the Congregation has agreed not to seek a religious tax exemption for the property in the future, and to restrict parking and use of outdoor speakers. The settlement also covered a related state court lawsuit.

Oklahoma Approves U.S.'s First Publicly Funded Religious Charter School

Politico and the Tulsa World report that yesterday the Oklahoma Statewide Virtual Charter School Board by a vote of 3-2 approved the application of the St. Isidore of Seville Catholic Virtual School to become the country's first publicly-funded religious charter school. Tulsa World explains that the deciding vote was cast by a Board member newly appointed only last Friday. According to Politico:

The split vote from the Oklahoma Statewide Virtual Charter School Board on Monday caps months of debate over government support for sectarian education that has divided the state’s educators and elected Republicans, including Gov. Kevin Stitt and Attorney General Gentner Drummond.

At issue is whether the requirement in the Oklahoma Constitution and the state's Charter Schools Act that public schools be non-sectarian violates the U.S. Constitution's free exercise clause. (See prior related posting.) Americans United says it is preparing to file suit to challenge the approval.

Abraham Cooper Elected USCIRF Chair

The U.S. Commission on International Religious Freedom announced yesterday that it has elected Abraham Cooper as its Chair for 2023-24, saying in part:

... Cooper was appointed to the Commission by Senate Minority Leader Mitch McConnell. He is the Associate Dean and Director of Global Social Action for the Simon Wiesenthal Center (SWC), a leading Jewish human rights organization .... He is also a founder of the Global Forum on Anti-Semitism. An acknowledged expert on online hate and terrorism, he regularly meets with world leaders to defend the rights of the Jewish people, combat terrorism, and promote multi-faith relations worldwide.

Frederick A. Davie, advisor to the president of Union Theological Seminary, was elected Vice-Chair.

Monday, June 05, 2023

Court Refuses to Dismiss Suit by Civil Detainee Who Was Forced to Attend a Christian Religious Service

In Erie v. Hunter, (MD LA, May 31, 2023), a Louisiana federal district court refused to dismiss an Establishment Clause suit brought by a civil detainee at mental health facility who was forced to attend a Christian religious service at the facility by a psychiatric aide who claimed that she had to accompany 25 other residents to the service and could not leave plaintiff in his room unsupervised. The court said in part:

... [T]he State reverts to its position that ... Ms. Hunter faced a binary choice: either compel Mr. Erie's attendance at the worship service, or “refuse[] to allow the 25 other patients in SFF unit 1” to attend the service, thereby violating “their own free exercise rights.”.... And because the Supreme Court has rejected “a ‘heckler's veto' which would allow religious activity to be proscribed based upon [Mr. Erie's] perception or discomfort,” it was reasonable for Ms. Hunter to choose an “incidental infringement” on Mr. Erie's rights....

... [N]o reasonable official would confuse this case with a “heckler's veto” case. Mr. Erie is not challenging ELMHS's practice of allowing weekly worship services in the SFF recreation hall, and there is no evidence whatsoever that Mr. Erie attempted to disrupt the January 9 worship service....

Second, and in any event, Mr. Erie has raised a fact dispute even regarding Ms. Hunter's claim that her choices were limited to forcing Mr. Erie to attend church or prohibiting the remaining SFF residents from attending church. Again, ELMHS's own investigation concluded that “there was [sic] other options [Ms. Hunter] could have use [sic] to locate other staff to stay with the [residents] who do not want to go to attend the religious services,”....

[Thanks to Glenn Katon for the lead.]

Recent Articles of Interest

From SSRN:

Marc Spindelman, Stirrings of a Conservative Christian Rule of Law [in Alliance for Hippocratic Medicine v. FDA, (The American Prospect (May 29, 2023)).
Lucia Ann Silecchia, Property and Moral Responsibilities: Some Reflections on Modern Catholic Social Theory, (Texas A&M University Journal of Property Law, Vol. 9, Pp. 733-56, 2023).
Adan Zulfiqar, Human Rights Norms from Below, (Yale Journal of International Law, Vol. 48, No. 1, 2023).
J. Alex Touchet & Bradley J, Lingo, Failure to Accommodate: Assessing the Legacy of Trans World Airlines v. Hardison on Working-Class People of Faith, (George Mason Law Review Forum (Forthcoming)).
Ajay Kumar, Two Different But Same Perspectives On Constitutional Morality, ((2022 Winter) ILI Law Review 258-275).
Michael L. Smith, Idaho's Law of Constitutional Interpretation: Lessons from Planned Parenthood Great Northwest v. State, (Idaho Law Review, Vol. 59, Forthcoming).
Linda C. McClain & James E. Fleming, Ordered Liberty after Dobbs, (Journal of the American Academy of Matrimonial Lawyers 623 (2023)).
Qaz Irfan, Riba in Shariah, (May 14, 2023).

From SSRN (Articles & Book Introductions by John Witte, Emory Center for Study of Law & Religion);

John Witte, The Protestant Reformation of Constitutionalism, (in Nicholas Aroney and Ian Leigh, eds., Christianity and Constitutionalism (Oxford: Oxford University Press, 2022), 126-48).
John Witte, “Foreword” to Festschrift for Michael J. Perry, (Emory Law Journal 71 (2022): i-iv).
John Witte, “Foreword,” to Franciszek Longchamps de Bérier and Rafael Domingo, eds., Law and Christianity in Poland: The Legacy of the Great Jurists, (London: Routledge, 2022), ix-xii ).
John Witte, Religious Freedom in Religious Education, (Advance (Fall, 2022), 1-10).
John Witte, “Foreword,” to Zachary Calo, Joshua Neoh and Keith Thompson, eds.,Christianity, Ethics, and the Law: The Concept of Love in Christian Legal Thought,, (London: Routledge, 2023), xi-xiii).
John Witte, “We Must Obey God Rather Than Men”: Lutheran Resistance Against Pope and Emperor in the Reformation Era, (in David Gides, ed., Uncivil Disobedience: Theological Perspectives (Minneapolis: Lexington Books, 2023), 75-92).
John Witte, Introduction to In Defense of the Marital Family (Leiden: Brill, 2023), 1-5).
John Witte, Biblical Foundations of Human Rights and Liberties, (Jahrbuch für biblische Theologie (with Eric Wang) , CSLR Research Paper No. __ Forthcoming).
John Witte & Rafael Domingo Osle, Preface to Oxford Handbook on Christianity and Law, (Oxford: Oxford University Press, forthcoming).
John Witte & Mathias Schmoeckel, Christianity and Procedural Law, (in John Witte, Jr. and Rafael Domingo, eds., Oxford Handbook on Christianity and Law (Oxford: Oxford University Press, forthcoming)).

From SmartCILP:

Philip A. Miscimarra, NLRA Coverage—The Search for Answers: Student Assistants, Religious Universities, Charter Schools, and Independent Contractors, 36 ABA Journal of Labor & Employment Law 25-74 (2022).
Henry Amorosa, Paula Alexander Becker & Evan Weiss, A Social Contract: The Doctrine of Unconscionability and Its Relation to Social Progress, 28 Cardozo Journal of Equal Rights & Social Justice 51-78 (2021).
R. George Wright, Free Speech and Antisemitism: Collin v. Smith Today, 20 First Amendment Law Review (2022).
John M. Breen & Lee J. Strang, A Light Unseen: The History of Catholic Legal Education in the United States: A Response to Our Colleagues and Critics, 59 Journal of Catholic Legal Studies 1-50 (2020).
David. A Dailge & Daniel V. Goff, Beyond Lawyer Assistance Programs: Applying the United States Marine Corps' Concepts and Principles of Spiritual Fitness as a Means towards Increasing the Health, Resiliency and Well-Being of Lawyers—While Restoring the Soul of the Profession, 59 Journal of Catholic Legal Studies 51-92 (2020).

Friday, June 02, 2023

Court Reaffirms Refusal to Dismiss Case Challenging 1st-Grade Teacher's Gender Identity Instruction

In Tatel v. Mt. Lebanon School District (II), (WD PA, May 31, 2023), a Pennsylvania federal district court reaffirmed its prior decision and concluded that parents of first-grade students have asserted plausible claims that their due process and free exercise rights, as well as their rights to familial privacy and equal protection, were violated by a teacher who pursued her own agenda in discussing gender identity with young students. The court said in part:

This case ... involves not merely instruction to influence tolerance of other children or families, but efforts to inculcate a teacher’s beliefs about transgender topics in Plaintiffs’ own children. ... [T]he allegations in this case go beyond mere reading of a few books. Here, the teacher allegedly pursued her agenda throughout the school year, including teaching first-graders that their parents may be wrong about their gender, telling one boy could dress like his mother, and telling the children to keep the teacher’s discussions about gender topics secret from their parents.... [I]t was the children’s own family and their own gender identity that Williams targeted. Plaintiffs allege that Williams targeted one child for repeated approaches about gender dysphoria despite, or because of, the parents’ beliefs.... It is reasonable to infer that Williams intended to influence the children’s own gender identity and to have at least one child become like the teacher’s transgender child.

In assessing plaintiffs' free exercise claim, the court said in part:

Plaintiffs allege that Williams’ agenda about gender dysphoria and transgender transitioning conflicts with their sincerely held religious and moral beliefs that “human beings are created male or female and that the natural created order regarding human sexuality cannot be changed regardless of individual feelings, beliefs, or discomfort with one’s identity, and biological reality, as either male or female.”... Plaintiffs contend that Defendants deliberately supplanted the parents’ role to control the instruction of their young children about their gender identity in accordance with their religious values ... and adopted a de facto policy that Williams could continue to advocate her agenda to first-graders in the future without notice or opt out rights for the parents.... As noted, this case is not about teaching kindness or tolerance, but about a teacher’s agenda to instruct first-graders that their parents’ religious beliefs about their own children’s gender are or may be wrong.....

Volokh Conspiracy has additional discussion of the case.

Lawsuit Challenges Laws Restricting Abortion Clinic Sidewalk Counselors

Suit was filed yesterday in a Colorado federal district court challenging on free speech grounds a Colorado statute and a Denver ordinance that prohibit approaching a person within 8 feet of an abortion clinic or other health care facility "for the purpose of passing a leaflet or handbill to ..., or engaging in oral protest, education, or counseling with such other person." According to the complaint (full text) in Faustin v. Polis, (D CO, filed 6/1/2023):

Defendants’ ban on approaching women outside of abortion clinics to speak with them unquestionably discriminates based on the content—and even the viewpoint—of speech. On its face, the ban applies only to speech with a particular purpose and message: speech “for the purpose . . . of engaging in oral protest, education, or counseling.”... And it targets only that speech on one side of the abortion debate: speech “protest[ing] or counsel[ing] against” what Colorado euphemistically terms “certain medical procedures.”... Defendants’ ban is also content- and viewpoint-based due to the nature of its justification: protecting the “unwilling listener’s interest in avoiding unwanted communication” from pro-life speakers when seeking “access to a medical facility.”...

First Liberty Institute issued a press release announcing the filing of the lawsuit.

Oklahoma Suprme Court Says 2 Anti-Abortion Laws Are Unconstitutional

In Oklahoma Call for Reproductive Justice v. State of Oklahoma, (OK Sup. Ct., May 31, 2023), the Oklahoma Supreme Court in a 6-3 decision held two recently enacted abortion bans unconstitutional under the state constitution. In doing so, the court relied on its prior decision in Oklahoma Call for Reproductive Justice v. Drummond, (OK Sup. Ct., March 21, 2023) which held that "a woman has an inherent right to choose to terminate her pregnancy if at any point in the pregnancy, the woman's physician has determined to a reasonable degree of medical certainty or probability that the continuation of the pregnancy will endanger the woman's life due to the pregnancy itself or due to a medical condition that the woman is either currently suffering from or likely to suffer from during the pregnancy." In the most recent case, the court said in part:

S.B. 1503 prohibits abortions after detection of a fetal heartbeat except in case of medical emergency. S.B. 1503 states in relevant part: "Sections 3 and 4 of this act shall not apply if a physician believes a medical emergency exists that prevents compliance of this act." S.B. 1503, § 5(A). There is no definition of medical emergency. There is also no severability clause.

H.B. 4327 on the other hand is a total ban on all abortions unless the "abortion is necessary to save the life of a pregnant woman in a medical emergency" or the "pregnancy is the result of rape, sexual assault, or incest that has been reported to law enforcement."... H.B. 4327 states that "'Medical emergency' means a condition in which an abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself."...

Pursuant to this Court's decision in Oklahoma Call for Reproductive Justice v. Drummond ... we find these two statutes to also be unconstitutional....

The court concluded that the severability clause in HB 4327 was insufficient to save the statute. AP reports on the decision.

Thursday, June 01, 2023

Football Coach Can Proceed on Some Claims Against University After Termination for Refusing Covid Vaccine

In Rolovich v. Washington State University, (ED WA, May 30, 2023), a Washington federal district court refused to dismiss failure to accommodate and breach of contract claims by the head football coach of Washington State University who was terminated after he refused to comply with the state's Covid vaccine mandate. Discussing plaintiff's Title VII failure to accommodate claim, the court said in part:

Plaintiff’s claim that his Catholic faith informed his decision not to receive the COVID-19 vaccine is sufficient at the pleading stage to meet the prima facie element that he has a bona fide religious belief.... Plaintiff has adequately pleaded the first element of the prima facie case for a failure to accommodate claim. Defendant does not challenge the remaining elements of Plaintiff’s prima facie case....

Defendant asserts that Plaintiff’s accommodation request would have resulted in increased travel costs, harm to recruitment and fundraising efforts, and damage to WSU’s reputation and donor commitments, in addition to an increased risk of exposure to COVID-19 to student athletes and other coaching staff....

While these claims of undue hardship may be supported by evidence not presently before the Court, they are insufficient on their own to support a finding that Plaintiff’s accommodation would have imposed an undue hardship....

The court concluded that the WSU Athletic Director was entitled to qualified immunity as to the coach's free exercise and due process claims. USA Today reports on the decision.