Challenge To Maine's Elimination of Religious Exemption To School Vaccination Mandate May Move Ahead

Fox v. Makin, (D ME, Aug. 16, 2023), is a challenge to the Maine legislature's removal of religious exemptions from the state's school vaccination requirements.  Plaintiffs' son was denied a religious exemption by the principal and vice-principal of the son's school at the direction of the state commissioner of education. In the case, a Maine federal district court allowed plaintiffs to move ahead with their claims for injunctive and declaratory relief against the Commissioner, principal and vice-principal. The court held that plaintiffs' free exercise claim was subject to strict scrutiny, finding that the vaccination law lacked general applicability. The court said in part:

Maine continues to permit multiple non-religious exemptions, including a 90-day grace period for non-religious students, a medical exemption, and the IEP sunset provision, all of which arguably undermine its student health and safety interests while restricting religious exemptions that may pose comparable risks....

The Court finds it plausible that section 6355 is not narrowly tailored to advance Maine’s interests.

The court also found that defendants had qualified immunity from damage claims, saying in part:

... [I]t was not clearly established during the period alleged in the Amended Complaint that failing to permit a religious exemption to mandatory school vaccination (while providing others certain non-religious exemptions) violates religious objectors’ constitutional rights. Thus, even if the Court were to assume – without deciding – that section 6355 is unconstitutional, it would be “unfair to subject” the Commissioner and the individual School Defendants “to money damages for picking the losing side of the controversy” by complying with section 6355....

North Carolina Legislature Overrides 3 Vetoes Relating To Transgender Youth and To Parental Rights

On Wednesday, the North Carolina legislature overrode Governor Roy Cooper's vetoes of three bills. House Bill 808 (full text) (veto message) (override vote) prohibits medical professionals from performing gender transition surgery on minors or prescribing puberty blockers or cross-sex hormones to minors. It also creates a cause of action for damages for minors who suffer physical, psychological, emotional, or physiological harm from such procedures or medication and allows minors to bring such actions up until they are 43 years old or 4 years after discovery of the injury and its cause, whichever is later.

House Bill 574 (full text) (veto message) (override vote) bars transgender women from middle school, high school and college athletic teams. The ban applies to all middle and high schools (specifically including church and religious schools) that are members of an organization that administers interscholastic athletic activities. Private church or religious schools that are not members of such an organization must comply with the ban in any game in which it is playing against a team that is a member. At the college level (public or private) the ban applies to all teams that are part of an intercollegiate athletic program. The law also creates a cause of action for any student who is deprived of an athletic opportunity or who is injured or likely to be injured by a violation of the Act. It also creates a cause of action for any student who is subject to retaliation for reporting a violation or any institution or employee harmed for complying with the law.

Senate Bill 49 (full text) (veto message) (override vote), labeled the "Parents' Bill of Rights", has broad provisions giving parents the right to direct the education, upbringing, moral or religious training and health care decisions of their children. It gives parents the right to seek medical or religious exemptions from immunization requirements and to withhold consent to reproductive health and safety education programs. It gives parents the right to access medical records of their children and to ban biometric scans, DNA storage or certain voice and video recordings of their children. It requires (with law enforcement exceptions) parental notification by the state of any suspected criminal offense against their children. It allows parents to review records of materials their children have borrowed from a school library.

The law includes extensive provisions on parental involvement in their children's public school education. Parents must be given information about a broad range of items relating to student progress, including "the course of study, textbooks, and other supplementary instructional materials for his or her child and the policies for inspection and review of those materials." The law requires procedures to notify parents of student physical and mental health, including advance notification of any name or pronoun changes used for the student.

  The law also provides:

Instruction on gender identity, sexual activity, or sexuality shall not be included in the curriculum provided in grades kindergarten through fourth grade, regardless of whether the information is provided by school personnel or third parties.

CNN reports on the new laws.

5th Circuit Says FDA Improperly Reduced Abortion Pill Restrictions, But Prior Supreme Court Order Keeps FDA Rules In Effect During Appeals

In Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration, (5th Cir., Aug. 16, 2023), the U.S. 5th circuit Court of Appeals upheld the portions of a Texas federal district court's orders that stayed actions taken by the FDA in 2016 and 2021 regarding the administration and distribution of the abortion pill mifepristone. The 2016 action increased the gestational age when the drug can be used from 49 to 70 days. It also lightened certain other dosage and prescribing restrictions. In 2021, in connection with the Covid epidemic, the FDA removed the in-person prescribing requirement for mifepristone, allowing it to be sent by mail. The court found that doctors have standing to challenge these actions, among other things citing conscience injuries to objecting doctors.  Challenges to two other FDA actions on mifepristone were rejected on standing and statute of limitations grounds.

The court concluded that plaintiffs are likely to succeed on their Administrative Procedure Act challenges that the FDA's actions were arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. This was the case as to the 2016 action because the FDA did not consider the cumulative effect of the changes it was proposing. They were likely to succeed on their challenge to the 2021 action because the FDA did not adequately study adverse event data.

However, as the court recognized, the U.S. Supreme Court has already ordered a stay of all the district court's orders until federal appeals are completed. Thus the 5th Circuit's action does not reinstate the district court's bans. 

Judge Ho concurred in part and dissented in part, saying tht he would also hold that the initial approval of mifepristone in 2000 should be set aside.

NPR reports on the decision.

Pro-Life Protesters Can Continue Viewpoint Discrimination Suit Over D.C. Defacement Ordinance

 In Frederick Douglas Foundation, Inc. v. District of Columbia, (DC Cir., Aug.15, 2023), the U.S. Court of Appeals for the D.C. Circuit held that a pro-life group can move ahead with its viewpoint discrimination claim against the D.C. government, but not its equal protection claim.  Plaintiffs alleged that D.C. did not enforce its defacement ordinance against "Black Lives Matter" protesters who chalked or painted protest signs on public and private property. However it did enforce the ordinance against pro-life protesters who wished to paint or chalk "Black Pre-Born Lives Matter" on sidewalks or streets. The court said in part:

... [T]o make out a First Amendment selective enforcement claim, the Foundation is not required to allege discriminatory intent. Viewpoint discrimination violates the First Amendment, “regardless of the government’s benign motive … or lack of animus toward the ideas contained in the regulated speech.”... “Innocent motives do not eliminate the danger of censorship.”...

The Foundation, in the alternative, frames its selective enforcement claim in terms of equal protection. To the extent a separate equal protection claim for viewpoint discrimination arises under the Fifth Amendment, the Foundation has failed to allege an essential element—purposeful discrimination. Even taking the facts in the light most favorable to the Foundation, we find it has not put forward plausible evidence of the District’s animus....

The First Amendment prohibits the government from favoring some speakers over others. Access to public fora must be open to everyone and to every message on the same terms. The District may act to prevent the defacement of public property, but it cannot open up its streets and sidewalks to some viewpoints and not others.... The Foundation has plausibly alleged that its members were similarly situated to individuals against whom the defacement ordinance was not enforced, and that the District discriminated on the basis of viewpoint when enforcing the ordinance. Because the Foundation has failed to adequately allege animus on the part of the District, however, its equal protection challenge fails.

Judge Wilkins filed a concurring opinion, saying in part:

In my view, even though the Foundation must meet the high bar of pleading purposeful discrimination to prevail on its First Amendment claim,.. the high standard is met here.

ADF issued a press release announcing the decision.

 

Injuring Police Chief's Reputation At His Church Was Not Free Exercise Violation

In Chesley v. City of Mesquite,(D NV, Aug. 14, 2023), a Nevada federal district court dismissed a suit brought by Joseph Chesley, Mesquite's former police chief, against the city, its former city manager and others for spreading rumors that Chesley had inappropriate sexual relations with women (including underage women), that he had embezzled money from a local business and improperly approved police overtime. Among others, the rumors were spread to members of Chesley's church.  As one of his claims, Chesley alleged that his free exercise rights were violated because the rumors and the city's inaction in stopping the rumors from spreading destroyed his reputation at his place of worship and impaired his ability to take part in worship at his church. In dismissing this claim, the court said in part:

Under circumstances such as these, where “the government action is neither regulatory, proscriptive, or compulsory” the question is whether the challenged government action “substantially burdens a religious practice and either is not justified by a substantial state interest or is not narrowly tailored to achieve that interest.” ... Chesley has not pled any substantial burdening of his Free Exercise Rights. The harms he alleges—a “destroyed” reputation at his church, and consummate discomfort worshipping there—are subjective, and the Ninth Circuit is clear that “a subjective chilling effect on free exercise rights is not sufficient to constitute a substantial burden.”...

7th Circuit: Parties Cannot Force A Constitutional Ruling On School Aid By Rejecting Statutory Alternative

In St. Augustine School v. Underly, (7th Cir., Aug. 14, 2023), is the latest installment in a case that arose in 2015 and has been litigated up and down the federal and Wisconsin state court system ever since. A Wisconsin statute provides transportation benefits for private religious schools, but only for one school from a single organizational entity in each attendance district.  At issue in this case is whether two Catholic schools in the same attendance district (one billing itself as a "Traditional Catholic School") were sufficiently linked that only one of them could receive the transportation assistance. 

The state Superintendent had concluded that St. Augustine School could not receive benefits because another Catholic school in its attendance district was already getting them. After receiving guidance from the Wisconsin Supreme Court, in December 2021 the U.S. 7th Circuit held that the Superintendent violated Wisconsin statutory law in denying transportation benefits to St. Augustine School, and so remanded the case to the district court for it to impose a remedy. (See prior posting.) Plaintiffs, however, were unhappy because they wished to obtain a ruling on the federal constitutional issues involved, so they made no argument for damages under state law.  The district court thus only issued a declaratory judgment in favor of St. Augustine, denying an injunction and damages. Now on appeal of that decision, the 7th Circuit said in part:

The remaining question is what to do in light of the fact that the Forros unambiguously waived their right to relief under their state-law theories. If by so doing they hoped to force us to reach the federal theories, they were mistaken. We will not allow ourselves to be manipulated into constitutional adjudication in this manner; parties do not have the right to compel a court to write what would essentially be an advisory opinion on a theory that it did not need to reach. St. Augustine IV provided plaintiffs with a clear path to recovery that they chose to forego. Litigants are held to their choices, even when the consequences are harsh. We accordingly see no error in the district court’s decision to treat their requests for damages and injunctive relief under state law as waived and to issue only a declaratory judgment....

Judge Ripple dissented, arguing that the court should reach the federal constitutional issues, saying in part:

As this case has traveled its circuitous path, a regrettable analytical fog has progressively obscured the good faith and thoughtful attempts of all actors, judges and lawyers, to resolve this case. Today, in my view, despite its best efforts, the majority, impeded by this fog, further obscures the matter by drawing the wrong conclusions from this muddied procedural history and, in the process, by departing from the mandate of the Supreme Court of the United States dated July 2, 2020. I respectfully dissent.

6th Circuit: Kentucky Governor Had Qualified Immunity For Covid School-Closing Order

 In Pleasant View Baptist Church v. Beshear, (6th Cir., Aug. 14, 2023), the U.S. 6th Circuit Court of Appeals held that Kentucky Governor Andy Beshear had qualified immunity in a suit challenging his Covid order temporarily barring in-person classes at public and private schools. The suit was brought by a group of churches, private religious schools and parents alleging that the 2020 Covid order violated their free exercise rights (as well as parental rights to send their children to religious schools and  their right to freedom of association). Plaintiffs' request for declaratory relief became moot when the orders were lifted. However, their claims for monetary damages did not. Affirming the district court's finding of qualified immunity, the appeals court said in part:

Neither this court’s nor the Supreme Court’s precedent clearly established that temporarily closing in-person learning at all elementary and secondary schools would violate the Free Exercise Clause when Governor Beshear issued EO 2020-969 on November 18, 2020. As the Governor points out, Plaintiffs have not provided this court with any cases denying a government official qualified immunity for their immediate public-health response to the COVID-19 pandemic.... Because the Governor issued EO 2020-969 in the midst of a vibrant debate on this constitutional issue, he is thus entitled to a qualified-immunity defense. Accordingly, because Plaintiffs cannot demonstrate that a clearly established right existed at the time Governor Beshear issued EO 2020-969....

Judge Murphy filed a concurring opinion.

MD Supreme Court: State Law Sex Discrimination Ban Does Not Include Sexual Orientation Discrimination

In Doe v. Catholic Relief Services, (MD Sup. Ct., Aug. 14, 2023), the Maryland Supreme Court, responding to certified questions from a federal district court, refused in interpreting state law to follow the analogous holding of the U.S. Supreme Court in its Title VII Bostick decision.  The Maryland court held that, in light of the separate prohibition on sexual orientation discrimination in state law, the ban on sex discrimination in the Maryland Fair Employment Practices Act does not also cover discrimination on the basis of sexual orientation. It went on to hold that in light of the specific ban on pay disparities based on sex or gender identity, the Maryland Equal Pay for Equal Work Act does not bar pay disparities based on sexual orientation. Finally the court held that the exemption in the Maryland Fair Employment Practices Act for "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion, sexual orientation, or gender identity to perform work connected with the activities of the religious entity" covers "claims brought by employees who perform duties that directly further the core mission (or missions) of the religious entity." It is not co-extensive with the ministerial exception doctrine.

Justice Hotten, joined by Justice Eaves, filed a dissenting opinion contending that the ban on sex discrimination in both statutes includes sexual orientation discrimination. They would also read the religious institution exemption more narrowly than the majority, contending that it only applies when a nexus exists between the employer’s religious activities and the work that an employee performs.

The underlying case that led to the certified questions involved a complaint by a Program Data Analyst employed by Catholic Relief Services who was denied spousal health benefits for his same-sex spouse.

[Thanks to Arthur Spitzer for the lead.]

Baylor Gets DOE Assurance That It Is Exempt From Title IX Sexual Harassment Rules

In a July 25 letter (full text), the U.S. Department of Education Office of Civil Rights has assured Baylor University that, as a university controlled by a religious organization, it is exempt from various regulations under Title IX to the extent that they are inconsistent with the University's religious tenets.  As reported by the Religious Exemption Accountability Project, in the past many religious universities have been assured they are exempt from Title IX regulations barring discrimination on the basis of sexual orientation, gender identity, marital status, sex outside of marriage, pregnancy or abortion. (See prior posting.) For the first time, however, Baylor was also assured that it is exempt from sexual harassment rules. More specifically, it was assured that compliance with its religious tenets by the University or its students would not constitute “unwelcome conduct” under the Department’s definition of “sexual harassment” under Title IX. 

Baylor's letter requesting a ruling (full text) was filed in response to several complaints filed with the DOE Office for Civil Rights. The letter reads in part:

The University does not discriminate on the basis of sexual orientation or gender identity or expression per se, but it does regulate conduct that is inconsistent with the religious values and beliefs that are integral to its Christian faith and mission....

The OCR complaints at issue here allege that Baylor violated OCR's Title IX regulations by its application of its Statement on Human Sexuality, Sexual Conduct Policy, Civil Rights Policy, Theological Seminary Policy, Baptist Faith and Message of 1963, and Truett Handbook to its campus community, both as a general matter and specifically in three situations: (1) the University's alleged decision to deny applications for an official charter for Gamma Alpha Upsilon, (2) the University's alleged response to notice that students were subjected to harassment based on their sexual orientation and/or gender identity, (3) and the University's alleged decision to pressure University media to not report on LGBTQ events and protests in September and October 2021.

According to an extensive report on Baylor's request, Baptist News Global says in part:

Baylor Assistant Vice President for Media and Public Relations Lori Fogleman said Baylor is responding to the “expanded definition of sexual harassment” under Title IX from the Biden administration, which includes discrimination against LGBTQ people.

NJ Anti-Discrimination Law Creates Defense for Catholic School That Requires Teachers to Follow Catholic Teachings

 In Cristello v. St. Theresa School, (NJ Sup. Ct., Aug. 14, 2023), the New Jersey Supreme Court dismissed a suit against a Catholic school which had fired an art teacher/ toddler room caregiver who was unmarried and become pregnant.  The teacher's employment agreement required her to abide by the teachings of the Catholic Church and prohibited employees from engaging in premarital sex. The teacher sued under the New Jersey Law Against Discrimination (LAD) alleging pregnancy and marital status discrimination.  The court's majority opinion held that the LAD provision creating an exception for religious organizations following the tenets of its religion in establishing employment criteria gives the school an affirmative defense. The majority said in part:

Determining whether a religious employer’s employment action was based exclusively on the tenets of its religion requires application of only neutral principles of law and does not impermissibly entangle the courts in ecclesiastical matters.

Justice Pierre-Louis filed a concurring opinion taking the position that the religious tenet provision does not create an affirmative defense, but instead shifts to plaintiff the requirement to show that the purported reason for the firing was a pretext for prohibited discrimination. However here plaintiff did not show that this was a pretext.

Washington Examiner reports on the decision.

Recent Articles of Interest

From SSRN:

• Victoria Litman, Psychedelic Policy, Religious Freedom, and Public Safety: An Overview, (Ohio State Journal of Criminal Law, Forthcoming).
• Jonathan Harkavy, 2023 Supreme Court Commentary: Employment Law ,(July 29, 2023).
• Cometan, 2023 Global Religious Recognition Report, (July 26, 2023).
• Rachel F. Moran, Racial Equality, Religious Liberty, and the Complications of Pluralism, (Hastings Constitutional Law Quarterly, Vol. 50, No. 2, 2023).
• Agustina Ramón Michel, Abortion. More than Criminalization, not yet Women’s Constituional Right, (En Hübner Mendes, C. y Gargarella, R. (edits.) The Oxford Handbook of Constitutional Law in Latin America. Oxford, Oxford University Press (2020).
• Conor Casey, The Fundamental Law of the Vatican City State: Exploring Hidden Treasures in the Constitution of the World’s Smallest State, (August 3, 2023).
• Troy A. Rule, Preserving Sacred Sites and Property Law, (August 7, 2023).
• Mark Satta, Commercial Discrimination as Religious Messaging in 303 Creative v. Elenis, (Religions (Forthcoming)).

From SSRN (Religious law):

• Saiful Alam, Md., Humayra Akhter, Nurullah Patwary, Md., & Sayeda Fatema, Islamic Articulation of the Carpe Diem Motif in Herrick's 'To Daffodils': A Post-Structuralist and Intertextual Inquiry, (Integrated Journal for Research in Arts and Humanities, 3(4), 59–68, (July 2023)).
• Nathan B. Oman, Property and the Latter-day Saint Tradition, (William & Mary Law School Research Paper No. __, Forthcoming).
• Nathan B. Oman, 'The Blessing That’s Anticipated Here Will Be Realized in the Next Life': The Development of Modern Latter-day Saint Marital Sealing Rules, (Journal of Mormon History 49, no. 3 (2023): 103–40).
• Mark Cammack, Islamic Law as Hermeneutic: Developments within Traditionalist Islam in Indonesia, (29 Southwestern Journal of International Law 53 (2023)).

Hawaii County's Denial of Permit to Temple Did Not Meet Strict Scrutiny Test

In Spirit of Aloha Temple v. County of Maui, (D HI, Aug. 11, 2023), in a case that has been in litigation for more than seven years, a Hawaii federal district court entered partial summary judgment for plaintiffs on one issue in the case. It held that the state had not met the strict scrutiny test on plaintiffs RLUIPA, free exercise and equal protection challenges to the denial of a special use permit to allow Spirit of Aloha Temple to use agriculturally-zoned land for a church and several other church-operated facilities including a wedding venue site. The court concluded that the denial was neither narrowly tailored nor the least restrictive means of furthering a compelling governmental interest. However, a number of other issues remain to be decided before determining whether there were statutory or constitutional violations. There remains the question of whether denial of the special use permit imposed a substantial burden on the Temple. According to the court, for purposes of RLUIPA that, in turn, depends on whether plaintiffs had a reasonable expectation of being able to build a religious institution on the land when they acquired it. For plaintiffs' federal and state free exercise claims, plaintiffs must show that their operation of the property was rooted in religious belief and that the county had an intent to discriminate. The court went on to hold that the RLUIPA non-discrimination (as opposed to its "substantial burden") provisions do not turn on strict-scrutiny review, but instead on whether there was religious discrimination.  When the regulation is neutral, that requires showing an intent to discriminate.

Near-Final Tally of Ohio Issue 1

With over 99% of the votes now counted, Ohio's Issue 1 failed on Tuesday by a vote of 57.01% against and 42.99% in favor. (Results from Secretary of State.) Issue 1 would have made it more difficult for voters to amend the Ohio Constitution, among other things by raising the required popular vote to 60% instead of the current majority.  The immediate aim of proponents of Issue 1 was to make it more difficult to pass a Reproductive Rights amendment that will be on the November ballot.

Expelled Church Members' Claims Barred by Statute of Limitations

In Boyett v. First Baptist Church of Bossier, (LA App., Aug. 9,2023), a Louisiana state appellate court in a 2-1 decision affirmed the trial court's holding that Louisiana's statute of limitations (called "prescription" in Louisiana law) barred a suit by members who had been expelled from the church.  Plaintiffs claimed that the Articles under which they were expelled had been improperly adopted.  Judge Hunter dissenting argued that the majority applied the wrong statute of limitations, so that the trial court should reach the merits of the case using the "neutral principles of law" approach.  He contended that the ecclesiastical abstention doctrine did not require dismissal of the case, and that the court should reverse the trial court's dismissal and remand the case for the taking of additional evidence.

Catholic Couple Sues Foster Care Agency For Religious Discrimination [Revised]

 A Catholic couple has filed suit in a Massachusetts federal district court against the Massachusetts Department of Children and Families claiming free exercise and free speech violations. Plaintiffs were denied a foster care license because they would not be affirming to a child who identified as LGBTQIA.  The complaint (full text) in Burke v. Walsh, (D MA, filed 8/8/2023), alleges in part:

As faithful Catholics, the Burkes believe that all children should be loved and supported, and they would never reject a child placed in their home. They also believe that children should not undergo procedures that attempt to change their God-given sex, and they uphold Catholic beliefs about marriage and sexuality....

In effect, DCF has interpreted its regulations, which require foster families to “support[] and respect[] a child’s sexual orientation or gender identity,” 110 CMR 7.104(1)(d), as an absolute bar for Catholics who agree with the Church’s teaching on sex, marriage, and gender.

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

[Note-- this post was erroneously published previously with a title but no text.]

11th Circuit: PLRA Exhaustion Requirement Does Not Include Filing of Rule Change Petition

In Sims v. Secretary, Florida Department of Corrections,(11th Cir., July 31, 2023), the U.S. 11th Circuit Court of Appeals held that the Prison Litigation Reform Act's requirement that prisoners exhaust available administrative remedies before filing suit only requires exhaustion of the prison system's grievance process.  A prisoner does not also have to file a petition with the Department of Corrections seeking a change in its rules.  At issue was the Florida prison system's denial of a request by a Muslim inmate for an exemption from grooming rules that require beards be no longer than one-half inch.

Suit By Christian Ministry Says Quebec Wrongly Cancelled Its Use of Convention Center

In Canada, suit was filed last week in a Quebec trial court by the Christian organization Harvest Ministries International challenging the province's cancellation of the organization's contract reserving the Quebec City Convention Centre for its Faith, Fire and Freedom Rally.  According to the Motion to Institute Proceedings (full text) in Harvest Ministries International v. Proulx, (Quebec Dist. Ct., filed 8/2/2023), the reservation was cancelled because Harvest Ministries anti-abortion views contradict Quebec's fundamental principles, even though the Rally itself was not an anti-abortion event.  The suit alleges that the cancellation violates Harvest Ministries' freedom of religion, expression and assembly and its right equality protected by Quebec's Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms. It seeks damages of $212,000. The Justice Centre For Constitutional Freedoms issued a press release announcing the filing of the lawsuit.

FSIA Precludes Suit Against Hungary for Property Confiscated from Its Jewish Population In Holocaust

In Simon v. Republic of Hungary, (DC Cir., Aug. 8, 2023), in a case on remand from the Supreme Court, the Court of Appeals for the D.C. Circuit held that under the Foreign Sovereign Immunities Act, the government of Hungary may not be sued in United States Courts for taking of property from its own nationals. The court said in part:

In 1944, as World War II neared its end, the Hungarian government implemented an accelerated campaign to exterminate its remaining Jewish population. Within a matter of months, the government systematically executed over half a million Jews—roughly two-thirds of the Jewish population in Hungary at the war’s outset. This state-perpetrated genocidal campaign ranks among the greatest crimes in human history.

The questions raised by these appeals bear on whether survivors of the Hungarian Holocaust may hale the Hungarian government and its instrumentalities into United States courts to answer for a subset of the wrongs they committed—namely, their confiscation of property from victims of the Holocaust. The plaintiffs invoke the Foreign Sovereign Immunities Act’s expropriation exception as a means to pierce the Hungarian state’s sovereign immunity and assert jurisdiction in federal district court. Defendants object that the exception is inapplicable....

Cognizant of the Supreme Court’s recent holding that “a country’s alleged taking of property from its own nationals” generally falls outside the scope of the Foreign Sovereign Immunities Act’s expropriation exception ..., the plaintiffs in these suits assert they were not Hungarian nationals at the time of the takings at issue. They instead claim that they were either stateless or Czechoslovakian nationals. The district court dismissed the claims of the plaintiffs asserting statelessness but concluded that most of the plaintiffs asserting Czechoslovakian nationality could proceed. 

We largely affirm. Like the district court, we conclude that the plaintiffs claiming statelessness ... have not made out a recognized claim within a Foreign Sovereign Immunities Act exception....

We likewise affirm the district court’s denial of the defendants’ motions to dismiss the claims of some of the plaintiffs asserting Czechoslovakian nationality, with a few exceptions....

Judge Randolph dissented as to the plaintiffs claiming Czechoslovakian nationality.

 

In Contempt Sanction, Court Orders Attorneys To Attend Religious Liberty Training

In Carter v. Transport Workers of America, Local 556, (ND TX, Aug.7, 2023), a Texas federal district court ordered sanctions against Southwest Airlines for its failing to comply with an earlier Order in the case that found the Airline had violated Title VII when it fired a flight attendant because of  her social media messages about her religiously-motivated views on abortion. Southwest claimed that the flight attendant had violated the company's social media policy regarding civility. In its current Order, The court set out a specifically worded communication that the Airline is required to send to its flight attendants regarding its obligation under Title VII not to engage in religious discrimination. The court also ordered that three of the Airline's attorneys who were responsible for non-compliance with the earlier Order attend at least 8 hours of religious liberty training conducted by the Christian legal non-profit Alliance Defending Freedom. The court explained, in part:

When a litigant “does not appear to comprehend” a legal concept, training in “the relevant subject area” constitutes a “particularly apropos” sanction.

[Thanks to Joel Taubman for the lead.]

Challenges To School's Transgender Bathroom Policy Dismissed

In Doe No. 1 v. Bethel Local School District Board of Education, (SD OH, Aug. 7, 2023), an Ohio federal district court, in a 52-page opinion, dismissed a wide-ranging group of challenges-- including due process, equal protection and free exercise challenges-- to a school board policy allowing students to use school bathrooms corresponding to their gender identity. The court said in part:

All Plaintiffs claim that the School District is “providing communal intimate facilities for transgender students in accordance with their believed core identity while denying the Muslim and Christian families communal intimate facilities in accordance with their believed core identity.”...

Parents have a right to make the initial choice about where their child attends school.... But inventing a constitutional right to strike down a state school’s choices about curriculum and school operations would impermissibly extend that right and, in our pluralistic society, require State schools to cater to inconsistent obligations from parents who may have different moral objections about how a school operates.... The substantive protections in the Due Process Clause do not extend so far....

The Muslim and Christian Plaintiffs—parents and students alike—allege that the School District’s actions have burdened the exercise of their religion.... Namely, both student groups have sincerely held religious beliefs that prevent them from sharing bathrooms with the opposite gender and receiving instruction about LGBTQ+ beliefs.... In exposing the Muslim and Christian Student Plaintiffs to the prospect that they will encounter a transgender individual in the bathroom, the School District has allegedly indirectly burdened the exercise of their faith because they have caused them to refrain from using the bathroom.... As to the Muslim and Christian Parent Plaintiffs, they allege that the School District’s actions are denying them “the ability to exercise their good-faith religious beliefs in raising their children in [their] faith.”... 

... [T]he School District’s policy ... is neutral and generally applicable. As a reminder, the School District announced that it would allow students to use the bathroom that corresponded with their gender identity..... This is (1) facially neutral because it makes no reference, overt or implied, to religion or religious conduct; and (2) generally applicable because it restricts religious and nonreligious conduct equally—every student gets to use the bathroom that corresponds with their gender identity.....

Moreover, Plaintiffs’ complaint does not hint of any plausible fact that suggests the School District is using this policy to suppress religious beliefs, as the School District’s actions make no mention of, and do not reference, religion whatsoever....

Because the bathroom policy is generally applicable, it is subject only to rational basis review. 

Cincinnati Enquirer reports on the decision.

Proposed Regulations Under Pregnant Workers Fairness Act Include Abortion as Pregnancy Related Condition

Yesterday the EEOC filed for publication in the Federal Register Proposed Rules (full text) under the Pregnant Workers Fairness Act. The Act requires employers with 15 or more employees to provide reasonable accommodations for employees and applicants arising out of pregnancy, childbirth or related medical conditions, absent undue hardship on the operation of the business. "Related medical conditions" are defined by the proposed regulations as including "termination of pregnancy, including via miscarriage, stillbirth, or abortion." Anti-abortion advocacy organizations say the proposed regulations will force employers to violate their religious beliefs. (See ADF press release.)

9th Circuit: Fraud Claim Against LDS Church By Prominent Donor May Move Ahead

In Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (9th Cir., Aug. 7, 2023), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, reversed a California federal district court's dismissal of a fraud claim brought against the LDS Church by James Huntsman, a prominent former member who had contributed over $2.6 million in tithes to the Church. The court described Huntsman's claim:

Huntsman alleged that the Church represented that tithing money was not used to finance commercial projects, but that, in fact, the Church used tithing money to finance a shopping mall development and to bail out a troubled for-profit life insurance company owned by the Church.

The court rejected the Church's claim that the suit was barred by the ecclesiastical abstention doctrine, saying in part:

In the case before us, we are not required to rely on or interpret the Church’s religious teachings to determine if it misrepresented how it was using tithing funds. Nor are we required to examine Huntsman’s religious beliefs about the appropriate use of church money. 

Instead, as presented to us, the questions are secular. The questions are whether the Church’s statements about how it would use tithing funds were true, and whether Huntsman reasonably relied on those statements when he made tithing contributions. A court or jury can answer these questions based on secular evidence and analysis.....

The majority then concluded that the district court had erred in granting summary judgment to the Church, saying in part:

The question before the district court, and before us, is whether a reasonable juror could conclude that the five statements by church officials and in church publications amounted to fraudulent misrepresentation by the Church.... Huntsman contends that a reasonable juror could conclude from the five statements that the Church fraudulently misrepresented that neither tithing principal nor earnings on tithing principal were being or would be used to finance the City Creek Mall project. We agree.

Judge Korman dissented in part, agreeing with the district court that no reasonable juror could find that the Church had misrepresented the source of funding for the mall project.

2nd Circuit Upholds Connecticut's Repeal of Religious Exemptions from Vaccination Requirements

In We the Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (2d Cir., Aug. 4, 2013), the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision, upheld the constitutionality of Connecticut's repeal of religious exemptions from its mandatory vaccination laws, while retaining medical exemptions. The majority said in part:

 At bottom, plaintiffs' argument that the Act is not neutral under Smith boils down to the proposition that repealing any existing religious exemption is hostile to religion per se.... We find this argument unpersuasive, for four reasons....

Plaintiffs and the dissent suggest that further development of the factual record might reveal that medical exemptions and religious exemptions are comparable for Free Exercise Clause purposes. But because the Act's medical exemptions further the State's interest in a way a religious exemption would not, permitting plaintiffs to proceed to discovery would require more of the State than what the Supreme Court has prescribed.

Judge Bianco dissented in part, saying in part:

Notwithstanding these many fact-intensive questions regarding whether this law satisfies the general applicability requirement under Smith, the majority opinion closes the courthouse doors to plaintiffs on their free exercise claim on a motion to dismiss before any discovery and before plaintiffs had an opportunity to present evidence bearing on the general applicability requirement in this particular context. The majority opinion does so by concluding, inter alia, that medical and religious exemptions are not comparable for free exercise purposes as a matter of law. Neither Supreme Court precedent nor this Court’s jurisprudence allows a court to so summarily cast aside the fundamental constitutional right of individuals to the free exercise of religion. In reaching this conclusion ... the majority opinion ignores two recent decisions by this Court addressing similar COVID-19 vaccination requirements.

AP reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• Asma Uddin, Religious Liberty Interest Convergence, (William & Mary Law Review, Vol. 64, No. 1, 2022-2023).
• Nathon B. Oman,  'A Welding Link of Some Kind': A Minimalist Theology of Same-Sex Marriage Sealings, (in Nathan B. Oman, Law and the Restoration: Law and Latter-day Saint History, Thought, and Scripture (Salt Lake City, Utah: Kofford Books, Forthcoming)).
• Aaron Tang, Lessons From Lawrence: How "History" Gave Us Dobbs—And How History Can Help Overrule It, (133 Yale L.J. Forum ___ (forthcoming 2023)).
• Daffa Rizqi Prayudya & Solahuddin Al-Ayubi, Islamic Central Bank Digital Currency (CBDC) Design, (Al-Infaq: Jurnal Ekonomi Islam (2023).
• Milena Kojić, Markus Vogl, Petar Mitić & Aida Hanić, Nonlinear Dynamics of Islamic Fixed Income Securities: Evidence from Generalized Chaos Analysis Framework, (June 30, 2023).

Australian State's Ban on Kirpan in Schools Is Invalid

 In Athwal v. State of Queensland, (Queensland Sup. Ct., Aug. 1, 2023), a 3-judge panel of the Supreme Court of the Australian state of Queensland held invalid a provision in the Weapons Act that specifically provides carrying a knife for religious purposes is not one of the exceptions to the ban on possessing a knife in a school. The court concluded that the provision, which has the effect of barring Sikhs from wearing a kirpan, in a school, is inconsistent with a provision of the national Commonwealth Racial Discrimination Act. Justice Dalton filed a concurring opinion. New Indian Express reports on the decision.

9th Circuit: Fire Chief's Dismissal Was Not Motivated by Religious Discrimination

In Hittle v. City of Stockton, California, (9th Cir., Aug. 4, 2023), the U.S. 9th Circuit Court of Appeals affirmed a district court's dismissal of a religious discrimination suit under Title VII and the California Fair Employment and Housing Act brought by the city's former Fire Chief.  Among the several reasons given to plaintiff by the city for his dismissal was his attendance at a religious leadership event on city time and with use of a city vehicle, and his approval for three other Department employees to also attend. The city had also received anonymous complaints that plaintiff gave favored treatment to other employees who were part of his Christian coalition. The court said in part:

Hittle must demonstrate that his religion was “a motivating factor” in Defendants’ decision to fire him with respect to his federal claims, ..., and that his religion was “a substantial motivating factor” for his firing with respect to his FEHA claims....

[B]ecause neither Montes nor Deis made any remarks demonstrating their own hostility to religion, but focused on the Summit’s lack of benefit to the City and other evidence of Hittle’s misconduct, Hittle failed to demonstrate that hostility to religion was even a motivating factor in his termination....

... [B]ased on the record before us, the district court’s granting of summary judgment in Defendants’ favor was appropriate where Defendants’ legitimate, non-discriminatory reasons for firing Hittle were, in sum, sufficient to rebut Hittle’s evidence of discrimination, and Hittle has failed to persuasively argue that these non-discriminatory reasons were pretextual.

In a press release, First Liberty Institute said it would seek review of the 9th Circuit panel's decision.

Trial Court Expands Exemptions in Texas Abortion Law; Appeal Suspends Ruling

In Zurawski v. State of Texas, (TX Dist. Ct., Aug. 4, 2023), a Texas state trial court issued a temporary injunction barring enforcement of Texas' abortion ban in more situations than the limited exceptions in the statute.  The court restrained enforcement against any physician who provides abortions where the pregnant person has a complication that poses a risk of infection or makes continuing a pregnancy unsafe, has a condition exacerbated by pregnancy that cannot be effectively treated during pregnancy or where the fetus is unlikely to survive the pregnancy.

The court said in part:

The Court further finds that any official’s enforcement of Texas’s abortion bans as applied to a pregnant person with an emergent medical condition for whom an abortion would prevent or alleviate a risk of death or risk to their health (including their fertility) would be inconsistent with the rights afforded to pregnant people under Article I, §§ 3, 3a, and/or 19 of the Texas Constitution and therefore would be ultra vires.

The state immediately filed a Notice of Accelerated Interlocutory Appeal which apparently has the effect under Texas law of suspending the trial court's temporary injunction pending action by the state Supreme Court. (Attorney General's press release.)  NPR reports on the decision. [Thanks to Thomas Rutledge for the lead.]

New Jersey Issues Guidance On Public Accommodation Law Coverage After 303 Creative Decision

Earlier this week (July 31), the New Jersey Division on Civil Rights issued a Guidance on the New Jersey Law Against Discrimination Following the U.S. Supreme Court’s Decision in 303 Creative LLC v. Elenis (full text) (press release). The Release says in part:

The Supreme Court’s ruling exempts from anti-discrimination laws like the LAD only a narrow set of services offered by some places of public accommodation. In order to assert an exemption, at a minimum, a public accommodation must establish that (1) its creative services are “original” and “customized and tailored” for each customer; (2) the creation is “expressive” and expresses the creator’s own First Amendment-protected speech; and (3) the public accommodation’s refusal to provide the creative service to a customer is based on the message it conveys, not the customer’s identity or protected characteristic standing alone. As a practical matter, many of the products or services that meet that narrow definition—for example, a documentary film created by a movie director—are created by artists or businesses that fall outside the LAD’s definition of a public accommodation already. Moreover, because the overwhelming majority of places of public accommodation do not provide “customized,” “original,” and “expressive” products or services to the public that express the creator’s own speech, the Court’s decision does not exempt most places of public accommodation—or most goods and services—from the LAD. That is why, as the Court itself acknowledged, state civil rights law still applies to “a vast array of businesses” selling “innumerable goods and services.”

[Thanks to Jeff Pasek for the lead.] 

Application For Tax Exemption Does Not Violate Organization's Free Exercise Rights

In Children of the Kingdon v. Central Appraisal District of Taylor County, (TX App, Aug. 3, 2023), a Texas state appeals court affirmed a $32,000 property tax assessment against a religious organization that had not filed an application for a tax exemption. Responding to the organization's free exercise claim, the court said in part:

[W]e construe Appellants’ ... argument to be that the Free Exercise Clause of the First Amendment protects their religious belief to not enter into written agreements with the government; thus, they would not be required to file an application for a property tax exemption in order to not be held liable for the payment of property taxes....

Here, Appellant asserts that the requirement that one must file an application for a property tax exemption violates their rights guaranteed by the Free Exercise Clause, because it is their religious belief to be governed separately from secularism and thus not enter into any agreement or accept any privilege from secular governments. We disagree with Appellants assertion and hold that this requirement does not violate their First Amendment rights. 

First, the exemption application requirement is neutral. It is not specifically directed at or to a religious practice; instead, the requirement is a means of protecting the equality and uniformity of the property tax scheme as guaranteed by the Texas constitution. Second, the requirement is generally applicable....

Ecclesiastical Abstention Doctrine Bars Court from Deciding Dispute Over Parish Funds

 In Salado v. Roman Catholic Diocese of El Paso, (TX App, Aug. 2, 2023), a Texas state appellate court held that the ecclesiastical abstention doctrine prevents the court from deciding whether funds raised by parishioners to build a new church building had been wrongfully misappropriated by the diocese. Parishioners had raised some $1.4 million, but the bishop decided that a new church should not be built and instead merged the parish with another one and transferred the funds to the new merged parish. The court said in part:

To resolve the dispute of whether the funds raised by the Parishioners on behalf of Sant Jose Parish were misappropriated when they transferred to the new Saint John Paul II Parish would require this Court to interpret Cannon Law and policies of the Roman Catholic Church regarding the rights and authority of bishops regarding the patrimony of a parish. Churches have a fundamental right “to decide for themselves, free from state interference, matters of church government[.]”

Denying Satanic Temple's Invocation Request Upheld

In The Satanic Temple, Inc. v. City of Boston, (D MA, July 31, 2023), a Massachusetts federal district court upheld Boston City Council's refusal to invite a representative of The Satanic Temple ("TST")  to deliver an invocation at a City Council meeting. The court said in part:

TST can prevail on its Establishment Clause claim if the evidence shows that the City's denial of TST's request to give the invocation was based on TST's religious beliefs. The City provides ample evidence that the refusal to invite TST to give an invocation was not because of TST's religious beliefs. All of the evidence submitted suggests that individual City Councilors invited speakers who served their constituents and were active in their communities, and TST did not qualify as such....

While TST provides some evidence that it had been involved in the greater Boston community, which is the primary factor City Councilors consider when selecting invocation speakers, through “Menstruatin’ with Satan,” “Warmer than Hell,” and Boston Pride tabling, there is no evidence that the City Councilors knew of those activities, nor that those activities took place within the Councilors’ districts. Indeed, the evidence clearly conflicts with that conclusion.....

The emails sent from the public to the City Councilors fall short of supporting TST's discrimination claim. Emails from the public expressing disagreement with TST's beliefs —particularly where, as here, there is no evidence that any City Councilor responded to those emails—do not support an inference that City Councilors did not invite TST to give an invocation because they shared the same opinion as the senders....

The City Council's process—or lack thereof—for selecting invocation speakers is the most troublesome to the Court of all factors to consider regarding legislative prayer practices. There is no dispute that the selection of the invocation speaker is left to each individual City Councilor's discretion, and there are no formal written policies governing this procedure. This leaves ample room for abuse, which concerns the Court. However, the lack of a formal, written policy does not by itself create a constitutional problem (though the existence of one could provide neutrality-enforcing guidelines that would help avoid constitutional issues in the future), nor does the fact that the selection of speakers is left to the discretion of the individual Councilors.

The court also rejected a free exercise claim. [Thanks to Greg Chaufen for the lead.]

Court Upholds Accreditation Requirement For Religious University

In Wisdom Ministries, Inc. v. Garrett,(ND OK, Aug. 1, 2023), an Oklahoma federal district court rejected a constitutional challenge to a cease and desist order issued by the Oklahoma State Regents.  The Regents insisted that Wisdom University, an Oklahoma-based online university operated by Wisdom Ministries, obtain proper accreditation before it issues degrees. The court held that the requirement does not violate the university's free expression, free exercise, Establishment Clause, freedom of association or equal protection rights, saying in part:

The issue raised by plaintiff has nothing to do with governmental restriction of content or subject matter being taught at Wisdom University but, instead, the state is applying a facially neutral regulation that ... falls with the power of the state to regulate business conduct....

Consumer protection is a legitimate state interest, and there is an equal need to protect students attending a secular or religious institution from paying for a degree program that does not meet certain minimal objective standards. The statute does not impose any higher burden on religious schools to obtain accreditation and such institutions are free to obtain accreditation from an agency specializing on accreditation for religious schools. Nothing about the accreditation requirement suggests that the state is favoring secular institutions or acting with hostility to religious institutions, and plaintiff has not shown that enforcement of the accreditation requirement of § 4103 violates the Free Exercise Clause as applied to religious colleges or universities....

Plaintiff’s allegations do not support a plausible claim that enforcement of the accreditation requirement of § 4103 will violate plaintiff’s rights under the Establishment Clause. Plaintiff makes a series of conclusory allegations that obtaining proper accreditation will involve the Regents in plaintiff’s religious affairs, but these allegations are speculative at best. Defendants have taken the position that Wisdom Ministries is free to operate a school or university without obtaining the accreditation required by § 4103, as long as Wisdom Ministries does not purport to offer a degree.

Idaho AG's Interpretation of Anti-Abortion Law Is Enjoined

In Planned Parenthood Greater Northwest v. Labrador, (D ID, July 31, 2023), an Idaho federal district court granted a preliminary injunction barring the state attorney general from enforcing an interpretation of a law barring healthcare professionals from assisting in performing an abortion that would cover professionals who merely provide information about or refer patients for legal out-of-state abortions. The court said in part:

... [T]he Medical Providers allege that the Crane Letter interpretation violates the First Amendment, the dormant commerce clause, and the due process clause. The Medical Providers claim they are “overwhelmingly” likely to succeed on the merits of all three claims.... Interestingly, the State did not engage this argument in any way, relying instead entirely on its jurisdictional challenges.... As discussed below, the Court finds that the Medical Providers are likely to succeed on their First Amendment cause of action.

In particular, the Medical Providers contend that the Crane Letter interpretation violates the First Amendment because it impermissibly regulates speech based on content and viewpoint.... because health care providers are silenced on a single topic—abortion—and is viewpoint discretionary because health care providers can provide information and referrals about out-of-state resources like anti-abortion counseling centers or prenatal care....

... Because the State has not opposed the First Amendment claim, and because the Court finds the Medical Providers’ argument persuasive, the Court finds that the Medical Providers have shown that they are likely to succeed on the merits of their First Amendment challenge.

Reuters reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Suit Challenges Illinois Deceptive Practices Law Aimed At Anti-Abortion Pregnancy Centers

Suit was filed last week in an Illinois federal district court challenging Illinois SB 1909 which prohibits limited purpose pregnancy centers from using misrepresentations or concealment to interfere with a person's access to abortion or emergency contraception. The 55-page complaint (full text) in National Institute of Family & Life Advocates v. Raoul, (ND IL, filed 7/27/2023), attacks the legislation on free expression, free exercise, and various 14th Amendment grounds. The complaint alleges in part:

... [S]peaking common pro-life views as part of a pregnancy help ministry, or failing to speak the State’s pro-abortion views on hotly disputed issues, is illegal under state law, on pain of crippling fines, injunctions,  and attorney fees. Meanwhile, abortion facilities (as well as expressly exempted licensed healthcare providers and hospitals) remain free to engage in their own controversial speech about abortion, as they wish.

Thomas More Society issued a press release announcing the filing of the lawsuit. 

Suit Challenges Oklahoma's Approval of Catholic Charter School

Suit was filed yesterday in an Oklahoma state trial court challenging the decision of the state's Virtual Charter School Board to approve a Catholic-sponsored charter school that will be funded by the state. The 70-page complaint (full text) in OKPLAC, Inc. v. Statewide Virtual Charter School Board, (OK Dist. Ct., filed 7/31/2023) alleges that the school's application indicated that the school's operation would violate numerous provisions of the Oklahoma Constitution, the Oklahoma Charter Schools Act, and regulations of the Virtual Charter School Board. The complaint alleges in part:

St. Isidore submitted notarized statements that it would comply with antidiscrimination and other legal requirements only “to the extent required by law, including . . . religious exemptions . . . with priority given to the Catholic Church’s understanding of itself and its rights and obligations pursuant to the Code of Canon Law and the Catechism of the Catholic Church.”...

Because St. Isidore’s program requires students to submit to instruction in particular religious tenets, it is not actually open to children of all faiths and is instead discriminatory based on religion....

St. Isidore also will discriminate among prospective or enrolled students based on sexual orientation, gender identity, pregnancy outside of marriage, and sexual activity outside of marriage....

The Charter Schools Act requires charter schools to be “nonsectarian in [their] programs . . . and all other operations.”...

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

7th Circuit Vacates Prior Decision On Teacher's Refusal To Call Transgender Students By Registered Name

As previously reported, earlier this year in Kluge v. Brownsburg Community School Corp., the U.S. 7th Circuit Court of Appeals in a 2-1 decision upheld a school's dismissal of a teacher who refused on religious grounds to comply with the school policy of calling transgender students by their names registered in the school's official database. Now, in an Order (full text) issued on July 28, the 7th Circuit has vacated its decision and remanded the case to the district court for reconsideration in light of the U.S. Supreme Court's recent decision in Groff v. DeJoy. ADF issued a press release announcing the court's new Order.

6th Circuit Hears Oral Arguments In Wedding Photographer Case

On Friday, the U.S 6th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Chelsey Nelson Photography LLC v Louisville Jefferson Co KY. In the case, a Kentucky federal district court held that Louisville's public accommodation ordinance violates the free speech rights of a Christian wedding photographer who has moral and religious objections to same-sex marriages. (See prior posting.) Louisville Public Media reports on the oral arguments.

New Ukrainian Law Moves Christmas To EDec. 25, Rejecting Russian Orthodox Date

 AP reports that last Friday. Ukrainian President Volodymyr Zelenskyy signed a law that moves the date on which Ukraine will celebrate Christmas from January 7 (the date observed by the Russian Orthodox Church) to December 25. According to AP:

The explanatory note attached to the law said its goal is to “abandon the Russian heritage,” including that of “imposing the celebration of Christmas” on Jan. 7. It cited Ukrainians’ “relentless, successful struggle for their identity” and “the desire of all Ukrainians to live their lives with their own traditions, holidays,”....

The law also moves the dates for two other Ukrainian patriotic holidays.

Recent Articles of Interest

From SSRN:

• Paolo Davide Farah, Law, Society, and Religion: Islam and the West, (in Federico Lorenzo Ramaioli, Juridical Perspectives between Islam and the West – A Tale of Two Worlds, Global Issue Series, Palgrave MacMillan (United Kingdom), Forthcoming 2023).
• Michale Quinlan, 'Yes My Lord' Examining the Impact of Religion on the Legal Profession, (Crime, Criminal Justice and Religion A Critical Appraisal (Philip Birch, Conor Murray and Andrew McInnes (ed), Routledge, 2023).
• Deborah Machalow, Religious Diversity and A Woman’s Right to Choose: The Religious Right’s Mistakenly Assumed Monopoly on Belief and Religious Support for Abortion, (Rutgers Journal of Law and Religion, Vol. 22, No. 3, 2022).
• Michael J. Broyde, AI and Jewish Law: Seeing How ChatGPT 4.0 Looks at a Novel Issue, (B.D.D.- Bekhol Derakhekha Daehu of Bar Ilan University, forthcoming).
• Christopher C. Lund, Answers to Fulton's Questions, (Iowa Law Review, Vol. 108, p. 2075, 2023 (symposium)).
• Deborah Machalow, Screwed But Not Even Kissed: The Parade of Reproductive and Economic Horribles Likely to Follow Dobbs, (Journal of Gender, Race and Justice, Vol. 26, No. 1, 2023).
• Mehdi J. Hakimi, The Afghan State and the Hazara Genocide, (Harvard Human Rights Journal, Vol. 37 (Forthcoming)).
• Paolo Davide Farah, Law, Society, and Religion: Islam and the West, (in Federico Lorenzo Ramaioli, Juridical Perspectives between Islam and the West – A Tale of Two Worlds, Global Issue Series, Palgrave MacMillan (United Kingdom), Forthcoming 2023).

From SmartCILP:

• Mark Strasser, On Espinoza, Schools, and the Religion Clauses, [Abstract], 14 Drexel Law Review 543-590 (2022).

Suit Challenges Ohio Reproductive Freedom Amendment Ballot Issue

 A legal action was filed Friday in the Ohio Supreme Court seeking to disqualify from the November ballot a proposed Reproductive Freedom amendment to the state constitution which has been certified for inclusion on the ballot by the state Secretary of State. The complaint (full text) in Giroux v. Committee Representing Petitioners, (OH Sup. Ct., filed 7/28/2023) contends that the initiative petitions failed to comply with the legal requirement to include the text of existing statutes that would be implicitly repealed by the amendment if it is adopted. Cincinnati Enquirer reports on the lawsuit. [Thanks to Thomas Rutledge for the lead.]

Church Autonomy Doctrine Does Not Shield Criminal Conduct

 In Hochstetler v. State of Indiana, (IN App., July 27, 2023), an Indiana state appellate court held that criminal conduct is not shielded by the church autonomy doctrine. In the case, three Old Order Amish bishops were convicted of misdemeanor intimidation for threatening to place an Amish wife under a bann if she did not remove herself from a protective order she had obtained to protect her and her children from her husband.

Some Claimed Exemptions From Vaccine Mandate Were Not Religious In Nature

In Ellison v. Inova Health Care Services, three hospital employees sued because their claims for religious exemptions from the Covid vaccine mandate were rejected.  They asserted that their employer violated Title VII by failing to accommodate their religious beliefs. The court found that only the aborted fetal cell objections of one defendant were adequately linked in the pleadings to plaintiff's religious beliefs.  Other objections to the vaccine were not religious in nature.  The court said in part: 

In Ellison’s request for exception, he claims that, as a Christian, he has a right to refuse the vaccine. Specifically, he claims that the Bible requires Christians to treat their bodies as “temple[s] of the Holy Spirit,” meaning that he is “compel[led]” to care for his mind and body.... And because, in his view, taking the COVID-19 vaccine would “introduce to [his] body a medication that could induce harm,” he claims that complying with the hospital’s policy would be “antithetical to [his] desire to honor God.”...

... [T]he Court finds that, though couched in religious terms, Ellison refused the vaccines based on concerns of vaccine safety.

Two of the plaintiffs claimed that they pray over their health care decisions and follow God's answers.  The court rejected this, calling it an unverifiable claim of a blanket privilege that undermines our system of ordered liberty.

Conscience Clause in Health Insurance Mandate Does Not Violate Church's Free Exercise

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, July 25, 2023), a Washington federal district court dismissed a free exercise challenge by a church to a Washington law requiring all health insurance plans that provide maternity coverage to also provide substantially equivalent abortion coverage. Under the law, employers with religious or moral objections to specific services do not have to purchase coverage for those services, but enrollees must still be able to access coverage for the services. The court said in part:

None of the State’s arguments seem to fully address the crux of Cedar Park’s facilitation complaint: that its employees would not have access to covered abortion services absent Cedar Park’s post-SB 6219 plan. This fact is undisputed and undoubtedly true. Because of SB 6219, Cedar Park’s employees gained coverage for abortion services under their employer-sponsored health insurance plan that they would not otherwise have. Even if the “facilitation” is somewhat minimal, SB 6219 requires Cedar Park to facilitate access to covered abortion services contrary to Cedar Park’s religious beliefs....

Because the Court concludes that SB 6219 is neutral and generally applicable, the law is valid if it is rationally related to a legitimate governmental purpose....

The Washington legislature identified multiple legitimate governmental purposes for enacting SB 6219, including promoting gender equity, promoting economic success of women, improving women’s health, and protecting privacy.

Hindu Profs May Move Ahead with Some Challenges To "Caste" In Anti-Discrimination Policy

In Kumar v. Koester, (CD CA, July 25, 2023), a California federal district court dismissed for lack of standing plaintiffs' free exercise and equal protection challenges to California State University's inclusion of the term "caste" in its Interim Non-discrimination Policy. However, the court concluded that plaintiffs-- South-Asian, Hindu CSU professors-- may move ahead with their Establishment Clause and vagueness claims. 

Plaintiffs object to the University's policy that treats "caste" as a social and religious hierarchy created by the Hindu religion. They contend that caste is no part of Hinduism and that its inclusion in the University policy promotes racial and religious stereotypes and subjects plaintiffs' Hindu religious beliefs to public ridicule. The court dismissed plaintiffs' equal protection challenges because "abstract stigmatic injuries" are not sufficient to create standing.  Insofar as plaintiffs argue that the Policy provides insufficient protection to non-Asian victims of caste discrimination, plaintiffs allege no injury to themselves. As to plaintiffs' free exercise challenges, the court said in part:

Plaintiffs emphatically denounce the caste system and reject the notion that it is part of their religion. Thus, the Policy does not threaten any of Plaintiffs' rights to practice their religion.

As to plaintiffs' Establishment Clause claims, the court said in part:

To evaluate the merits of an Establishment Clause claim, a court must reference historical practices and understandings.... A government practice that unevenly impacts religion may nevertheless be constitutional if it is supported by history and tradition.... Defendant contends that inclusion of the term "caste" is supported by a long history and tradition of disallowing racial discrimination in schools. While Defendant is correct that there is a long history of preventing racial discrimination in education, Defendant has not adequately demonstrated that there is a history or tradition of incorporating words with religious connotations to curb racial discrimination. Therefore, Defendant has failed to demonstrate that implicating Hinduism through the Policy's inclusion of the term "caste" is supported by history and tradition.

[Thanks to Glenn Katon for the lead.]

Vermont Pregnancy Counseling Centers Sue Over New Restrictions

Suit was filed yesterday in a Vermont federal district court attacking Vermont's recently-enacted SB 37 which, among other things, imposes new regulation on anti-abortion pregnancy counseling centers. The law prohibits advertising of services that is "untrue or clearly designed to mislead the public about the nature of the services provided." It also provides that licensed health care professionals who provide services at such centers are responsible for ensuring that services, information and counseling at the center complies with these requirements. The complaint (full text) in National Institute of Family and Life Advocates v. Clark, (D VT, filed 7/25/2023) contends that these provisions are unconstitutionally vague and also violate the free speech rights of clinics, alleging in part:

111. The Advertising Prohibition provides no guidance as to how it should be applied to advertisements including medical information on which there is no medical consensus.

112. The Advertising Prohibition is also unclear as to whether it requires a disclosure in all advertisements that the pregnancy center does not provide abortions or "emergency contraception."

113. Requiring such a disclosure would compel the centers' speech.

114. The Advertising Prohibition has chilled Plaintiffs' speech.

115. For example, Aspire's medical director created a video about abortion pill reversal that Aspire would like to post on its website....

168. Because Plaintiffs do not charge for their services, the Provider Restriction, 9 V.S.A. § 2493(b), regulates Plaintiffs' non-commercial speech.

169. The Provider Restriction is a viewpoint- and content-based regulation of pure speech because it directly regulates speech about health-care-related" information" and "counseling" by "limited-services pregnancy centers," even when no medical treatment or procedure is involved. 9 V.S.A. § 2493(b).

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

Guam Legislature Overrides Veto of Bill Authorizing Government-Funded Religious Charter Schools

On July 24, the Guam legislature by a vote of 13-0 overrode Governor Lourdes Leon Guerrero's July 12 veto of Bill No.62-37.  (Full text of veto message). The bill allows both private religious schools and private non-sectarian schools to petition to convert to government-funded Academy Charter Schools. The legislation authorizes up to 7 charter schools to operate at any one time. (Full text of bill and veto override vote). The legislature's introductory language in the bill reads in part:

I Liheslaturan Guåhan intends to remove any discrimination or distinction between private sectarian or non-sectarian applicants for converting existing schools or for new charter schools. I Liheslaturan Guåhan recognizes the enormous contribution and history of private sectarian education on Guam and intends for all applicants to be considered on their records and applications to convert to an Academy Charter School.

According to the Guam Daily Post:

Gov. Lou Leon Guerrero in a veto message this month said that Bill 62 violated the First Amendment and the doctrine of separation of church and state, as well as the Organic Act of Guam. She stated she couldn’t authorize the spending of taxpayer money on a religious school, which would then be regulated by the government.

But Attorney General Doug Moylan differed in a legal opinion issued to lawmakers. Several faith-based organizations receive money from the government of Guam already, he noted.

Court Upholds Procedure for Obtaining Immigrant Religious Worker Classification

In Society of the Divine Word v. U.S. Citizenship & Immigration Services, (ND IL, July 20, 2023), an Illinois federal district court rejected RFRA, free exercise, Establishment Clause and equal protection challenges brought by more than a dozen religious institutions to the way in which federal law treats foreign-born ministers and international religious workers who the institutions seek to employ.  Current federal law does not allow them to file their application for a "green card" until after their employer has obtained a special immigrant religious worker classification for them. This is different than the rules for employees of secular organizations who may file for a green card concurrently with their employer's filing. The court said in part:

Plaintiffs counter that § 245.2(a)(2)(i)(B) violates the RFRA because their decisions regarding “when and where religious workers may be put into religious service” are protected by the First Amendment. They argue that § 245.2(a)(2)(i)(B) places “extreme and sometimes insurmountable burdens” on their ability to staff their religious missions. These burdens include processing delays, resource expenditure to follow up on and seek expedited adjudication of petitions, and lapses in employment authorization....

The court agrees with plaintiffs that § 245.2(a)(2)(i)(B) is still capable of substantially burdening their religious exercise even if they can use other employment-based immigration categories to hire their foreign-born religious workers. That being said, the court disagrees with plaintiffs that they have demonstrated that these alleged burdens (time, planning, and cost) have a substantial impact on their ability to determine when and where to hire and fire the religious ministers of their choice. Instead, § 245.2(a)(2)(i)(B) requires employers to plan the timing of employment decisions based on immigration status, and potentially limits the pool of qualified applicants that plaintiffs can choose from if they fail to plan accordingly. Limiting the pool of available employees based on immigration status is not the same as interfering with a religious organization’s hiring decision by pressuring them to hire or fire a particular employee, as in Hosanna Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012)...

Plaintiffs’ next argument is that § 245.2(a)(2)(i)(B) violates the Equal Protection and Due Process Clauses because it discriminates against them on the basis of religion....

... [T]his court concludes that § 245.2(a)(2)(i)(B) is not based on religion; it is based on the demonstrated risk of fraud in the special immigrant religious worker program, which is not subject to other requirements that might avoid fraud in other employment-based categories. 

Recent Articles of Interest

From SSRN:

• Mark Edward Blankenship Jr., 'Apprenticeship' as IP Metaphor: A Modern & Innovative Natural Law Approach in Intellectual Property Law, (Northern Kentucky Law Review, Vol. 50, No. 1, 2023).
• Elizabeth Sepper & James David Nelson, Religion Law and Political Economy, (Iowa Law Review, Vol. 108, No. 5, 2023).
• Nathan B. Oman, Travel Bans: Mormons and Muslims, (William & Mary Law School Research Paper No. 09-472 (2023).
• Leonardo Madio & Francesco Principe, Who Supports Liberal Policies? A Tale of Two Referendums in Italy, (July 19, 2023).
• Mritunjay Kumar, Chanchal Kumar Singh & Aastha Naresh Kohli, Breaking Down the Code, (India Legal Magazine, 2023).
• Keith Wanyangu, Kenya's Conversation on the Right to Sexual Orientation Is Just Cultural, (July 9, 2023).
• Mahbobullah Hazim & Abdulaziz Nazari, The Negative Consequences of Gender Mixing and Its Rulings in Islamic Shariah, (Integrated Journal for Research in Arts and Humanities, 3(4), July 2023, 6–19).

From SSRN (Abortion rights):

• Joseph W. Singer, Conflict of Abortion Laws, (Northeastern University Law Review, Vol. 16, No. 2 (2024, Forthcoming).
• Paul J. Zwier, US State Abortion Law in an International Context: Distinguishing Religion and Politics, (July 14, 2023).
• Gemma Donofrio, Bruen, Dobbs, Rahimi, and Domestic Violence: Fewer Abortions, More Guns, and the Effects of Both on Survivors of Intimate Partner Violence, (July 17, 2023).

From SmartCILP:

• Stephen M. Feldman, The Roberts Court's Transformative Religious Freedom Cases: The Doctrine and the Politics of Grievance, [Abstract], 28 Cardozo Journal of Equal Rights & Social Justice 507-558 (2022).
• B. Jessie Hill, Due Process, Delegation, and Private Veto Power, 108 Iowa Law Review 1199-1246 (2023).

UN Human Rights Council Adopts Resolution Condemning Burning of Qur'an

The United Nations Press Centre reports that on July 14, the United Nations Human Rights Council

concluded its fifty-third regular session after adopting 30 resolutions and holding an urgent debate on the alarming rise in premeditated and public acts of religious hatred as manifested by recurrent desecration of the Holy Quran in some European and other countries.

The Council adopted Resolution A/HRC/53/L.23, Countering Religious Hatred Constituting Incitement to Discrimination, Hostility or Violence (full text), which reads in part:

Affirming that burning the Holy Qur’an or any other holy book is offensive, disrespectful and a clear act of provocation, constituting incitement to discrimination, hostility or violence and a violation of international human rights law, ...

Condemning any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence, whether it involves the use of print, audiovisual or electronic media or any other means...

1. Condemns and strongly rejects the recent public and premeditated acts of desecration of the Holy Qur’an, and underscores the need for holding the perpetrators of these acts of religious hatred to account in line with obligations of States arising from international human rights law....

ADF-UK issued a press release criticizing the Council's Resolution as an anti-blasphemy resolution that infringes free expression rights.

Missouri Supreme Court Orders Steps to Allow Reproductive Rights Initiative Petitions to Be Circulated

In State of Missouri ex rel. Dr. Anna Fitz-James v. Bailey, (MO Sup. Ct., July 20, 2023), the Missouri Supreme Court affirmed a trial court's issuance of a writ of mandamus requiring the state Attorney General to approve the State Auditor's fiscal note summaries to eleven Reproductive Rights initiative petitions. That approval is necessary so that the Secretary of State can certify the ballot language and proponents can begin to circulate the petitions for signatures. (Full text of petitions [scroll to No. 2024-77 through 2024-87]). AP reports on the case. State Attorney General Andrew Bailey-- a gubernatorial appointee in Missouri-- contended that the Auditor's conclusion that the proposed constitutional amendments would have no fiscal impact were inaccurate.  Bailey, an abortion opponent, contended that. if approved by voters, the state could lose $12.5 billion in Medicaid funds and $51 billion in future tax revenues because of fewer births. This earlier report by the Missouri Independent has additional background.

 In its opinion, the Missouri Supreme Court said in part:

The Attorney General’s narrow authority to approve the “legal content and form” of the fiscal note summaries cannot be used as a means of usurping the Auditor’s broader authority to assess the fiscal impact of the proposals and report that impact in a fiscal note and fiscal note summary....

The Attorney General, nevertheless, characterizes his claim as challenging the “legal content and form” of the fiscal notes and their summaries because he contends they use language that is argumentative or likely to prejudice readers in favor of the proposed measure.... [H]e claims the content of the notes is likely to prejudice voters in favor of the proposals by underestimating the fiscal impact. And, because he believes the fiscal notes understate the costs to state and local governments, the Attorney General claims the summaries inevitably do so as well. The Attorney General has no authority under section 116.175 to refuse to approve fiscal note summaries on such grounds....

For more than 40 years, this Court has noted “that procedures designed to effectuate [the rights of initiative and referendum] should be liberally construed to avail voters with every opportunity to exercise these rights” and that “[t]he ability of voters to get before their fellow voters issues they deem significant should not be thwarted in preference for technical formalities.”... If the Attorney General had complied with his duty ..., the Secretary would have certified the official ballot titles for Fitz-James’s initiative petitions nearly 100 days ago.