Oklahoma AG Sues State's Charter School Board Over Its Approval of Religious Charter School

Last week Oklahoma's Attorney General filed suit against the Oklahoma Statewide Virtual Charter School Board challenging its approval of the Catholic Archdiocese's application for a state-funded online religious charter school. (See prior related posting.) The ACLU and Americans United had previously filed suit in a state trial court challenging the Board's action. The Attorney General's action was filed directly with the Oklahoma Supreme Court. As reported by PBS News, the AG's action came after 3 members of the Board signed a contract this week for the school. In Drummond v. Oklahoma Statewide Virtual Charter School Board, (OK Sup. Ct., filed 10/20/2023), the Attorney General filed an Application to Assume Original Jurisdiction and Petition for Writ of Mandamus and Declaratory Judgment, as well as a Brief in Support (full text) of its motions. The brief reads in part:

Make no mistake, if the Catholic Church were permitted to have a public virtual charter school, a reckoning will follow in which this State will be faced with the unprecedented quandary of processing requests to directly fund all petitioning sectarian groups....  For example, this reckoning will require the State to permit extreme sects of the Muslim faith to establish a taxpayer funded public charter school teaching Sharia Law. Consequently, absent the intervention of this Court, the Board members’ shortsighted votes in violation of their oath of office and the law will pave the way for a proliferation of the direct public funding of religious schools whose tenets are diametrically opposed by most Oklahomans.

As to the merits, this case is simple: Oklahoma’s Constitution disallows sectarian control of its public schools and the support of sectarian practices—indirect or otherwise....

The brief also asserted that the Board's action violates the 1st Amendment's Establishment Clause. The Oklahoma Attorney General issued a press release announcing the filing of the lawsuit.

Colorado Ban on Medication Abortion Reversal Violates Clinic's Free Exercise Rights

In Bella Health and Wellness v. Weiser, (D CO, Oct. 21, 2023), a Colorado federal district court issued a preliminary injunction barring the state from taking enforcement action under a law enacted earlier this year against an anti-abortion pregnancy center for offering and advertising its medication abortion reversal services. The court said in part:

Bella Health considers it a religious obligation to provide treatment for pregnant mothers and to protect unborn life if the mother seeks to stop or reverse an abortion.... The State Defendants have not contested that SB 23-190 burdens Bella Health’s religious practice. Indeed, it is not up to the State or the Court to second-guess the sincerity of Bella Health’s religious motivations or to suggest alternative means of satisfying Plaintiffs’ religious calling. 

The more difficult question is whether Section Three’s prohibition on abortion pill reversal is neutral and generally applicable. It is not for three reasons. First, the law treats comparable secular activity more favorably than Bella Health’s religious activity.... Second, the law contains mechanisms for exemptions that undercut the State’s expressed interests.... Third, the law’s object and effect is to burden religious conduct in a way that is not neutral.

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

Recent Articles of Interest

From SSRN:

• Sergiy Panasyuk, Public Policy in Ukraine During Wartime: The Freedom of Religion v. National Defense Needs, (IACL-AIDC Blog 2023).
• Tamar Hostovsky Brandes, The Constitutional Overhaul and the West Bank: Is Israel’s Constitutional Moment Occupied?, (Israel Law Review, Forthcoming).
• Cometan, International Religious Rights and Standards (September 23, 2023).
• Tyler Shannon, Texas Proposition 3: A State Constitutional Response To Restrictions On Religious Gatherings, (55 Texas Tech Law Review 559 (2023)).
• Colleen Murphy & Lesley M. Wexler, Non-State Punishment, (University of Illinois Law Review, Forthcoming).
• Prerna, Review Article on the Book: Religious Liberty in Western and Islamic Law- Toward a World Legal Tradition by Kristine Kalanges (March 10, 2023).
• Asra Tufail Dahraj, Taxation in Pakistan in the Light of Islam and Modern Economics (September 20, 2023).

From elsewhere:

• Adelaide Madera, LGBTQ+ Rights v. Religious Claims: Navigating the Tensions Between RFRA and Title VII, Canopy Forum, Oct. 2023).
• Journal of Law and Religion, Vol. 38, Issue 2 (May 2023).

Christian Pre-School May Get State Aid Without Complying With Non-Discrimination Rules Which Violate Its Beliefs

In Darren Patterson Christian Academy v. Roy, (D CO, Oct. 20, 2023), a Colorado federal district court issued a preliminary injunction barring Colorado from excluding a private Christian pre-school from its Univeral Pre-School Program. The state requires participating schools to agree that they will not discriminate on the basis of gender, race, ethnicity, religion, national origin, age, sexual orientation, gender identity, citizenship status, education, disability, socio-economic status, or any other identity.” The court said in part:

... [T]he Department’s non-discrimination policy likely violates Plaintiff’s rights by interfering with the school’s selection of key employees in accordance with its religious convictions under the “ministerial exception.” ...

Second, Plaintiff has the right to expressive association which the State’s hiring rules likely violate.... The freedom to associate with others also includes the freedom not to associate with others if doing so would compromise the associating group’s expression of beliefs....

Third, the Department’s rules also force Plaintiff to choose between adhering to religious beliefs and risking exclusion from the program or complying with the Department’s rules. In the specific context of excluding religious schools from participation in educational benefits programs, the Supreme Court has thrice held that a state may not exclude religious observers from receiving otherwise available educational funding because of a school’s religious status or practice....

Plaintiff seeks to hire only coreligionists, and to continue internal policies related to gender distinctions rooted in religious beliefs. These polices violate the Department’s non-discrimination standards for participating preschools.... The First Amendment forbids imposing such a choice.

Fourth, the State’s rules are likely not neutral and generally applicable..... They allow both categorical and individualized exemptions that would undermine the government asserted interests, and thereby trigger strict scrutiny.... See Fulton v. City ...

Plaintiff is also likely to succeed on the merits of its Free Speech claim, at least to the extent that the state would require Plaintiff and its staff to use a student’s or employee’s preferred pronouns as a condition of participating in the program.

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

Canadian Court Says Oath to Monarchy Does Not Infringe Sikh Lawyer's Rights

In Wirring v. Law Society of Alberta, (AB KB, Oct. 16, 2023), the Court of King's Bench of the Canadian province of Alberta (sitting as a trial court) rejected a challenge to the oath of allegiance to the British monarch that law school graduates are required to take in order to be admitted to the Law Society and practice law in Alberta. According to the court:

Mr. Wirring is an amritdhari Sikh. He has pledged an absolute oath of allegiance to Akal Purakh, the divine being in the Sikh tradition. Mr. Wirring asserts that the oath of allegiance to the Queen is incompatible with the oath he has sworn to Akal Purakh.

The court held, however, that the oath requirement did not infringe plaintiff's freedom of religion, or his equality rights, that are protected by the Canadian Charter of Rights and Freedoms. The court said in part:

[117]  ... [T]he Oath of Allegiance ... should be interpreted ... not as an oath to the Queen as a person, but as a symbolic oath to our constitutional democracy by those seeking to be barristers and solicitors....

[165]      I ... accept Mr. Wirring’s own words that he can only see the Oath of Allegiance as an oath to the Queen. However, and importantly, I do not find that portion of his evidence to be part of his sincerely held religious belief. The conclusion that the Oath of Allegiance is an oath to the Queen is Mr. Wirring’s own legal interpretation....

[166]      ... [T]he interpretation of the Oath of Allegiance is an objective exercise performed by the Court....

[172]      Because I have found the Oath of Allegiance to be symbolic, Mr. Wirring is not required under the LPA to pledge allegiance to a spiritual or secular entity other than Akal Purakh. Therefore, there is no objective interference with Mr. Wirring’s freedom of religion by the state.

[173]      ... [I]t is Mr. Wirring’s misunderstanding of the Oath of Allegiance’s meaning, and not the requirement to take the Oath of Allegiance, which is preventing him from admission to the legal profession in Alberta.

YesPunjab reports on the decision.

5th Circuit: Religious Objection to Medications Must Be Considered In Forcible Medication Determination

United States v. Harris, (5th Cir., Oct. 17, 2023), involved a defendant who was charged with threatening to assault a federal judge. Defendant was found incompetent to stand trial and was involuntarily hospitalized to determine whether it was likely that he will attain competency in the foreseeable future. The government sought to involuntarily medicate defendant who, as a Jehovah's Witness, had refused for religious reasons to take medications.  Under Supreme Court precedent (Sell v. United States), one of the factors to be considered in deciding whether involuntary medication is permissible is whether important governmental interests are at stake, taking into account that special circumstances may lessen the importance of that interest.  In the case the U.S. 5th Circuit Court of Appeals held that said in part:

If ... secular circumstances are important enough to lessen the Government’s interest in prosecution, ... we believe religious liberty must be at least as important....

Harris’s religious beliefs, combined with his lengthy detention and his potential civil confinement, thus lessen the Government’s interests under the first Sell factor.

We hasten to emphasize the limits in today’s holding. We do not hold that religious faith constitutes a get-out-of-jail-free card. We also do not hold that all religious objections eliminate the Government’s interests under the first Sell factor. We hold only that religious liberty can constitute a “special circumstance” under Sell,,,,

Employees' Objections to Covid Vaccine Were Not Religious

In Foshee v. AstraZeneca Pharmaceuticals LP, (D MD, Oct. 17, 2023), a Maryland federal district court dismissed a Title VII religious discrimination claim by two employees who were denied a religious exemption from a company's Covid vaccine mandate, finding that their objections were not religious in nature. The court said in part:

Both Foshee and Pivar made similar assertions – that they are guided in their important decisions by God or the Holy Spirit, respectively, that they personally do not see the value in and are concerned about the risks associated with the COVID-19 vaccines, and that they have not felt God or the Holy Spirit calling them to disregard their consciences and get the vaccine....

Foshee’s position, that God gave him a conscience that tells him what to do, similarly amounts to a “blanket privilege.” The same conscience-based justification could be used to evade any job requirement that Foshee disagreed with. Pivar’s position that he listens to the guidance of the Holy Spirit which guides him in his difficult decisions is in the same vein....

Of course, harboring secular reasons alongside religious reasons does not automatically disqualify the religious beliefs, but in this circumstance, the reasons are inextricably intertwined in a way that dilutes the religious nature. For example, plaintiffs do not want to take the vaccines, therefore their consciences tell them not to do it, and they believe it is God’s will or in accord with the Holy Spirit that they follow their consciences. That reasoning is not subject to any principled limitation in its scope. Their beliefs thus confer the type of unverifiable “blanket privilege” that courts cannot permit to be couched as religious in nature.

School Material on Islam Did Not Violate Current Establishment Clause Test

As previously reported, in November 2020 in Hilsenrath v. School District of the Chathams, a New Jersey federal district court held that the 7th grade World Cultures and Geography course presentation of material about Islam did not violate the Establishment Clause. Subsequently the U.S. 3rd Circuit Court of Appeals (2022 U.S. App. LEXIS 20588 (July 20, 2022)) remanded the case to the district court for further consideration in light of the U.S. Supreme Court's decision in Kennedy v. Bremerton School District. Now in Hilsenrath v. School District of the Chathams, (D NJ, Oct. 16, 2023), the district court reaffirmed its former conclusion, saying in part:

In sum, the curriculum and materials here were not coercive and do not otherwise bear or resemble the “hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.” Accordingly, the Board did not violate the Establishment Clause. I will enter summary judgment in the Board’s favor on Hilsenrath’s remaining nominal-damages claim.

India's Supreme Court Refuses to Recognize Same-Sex Marriage

In Supriyo @ Supriya Chakraborty v. Union of India, (Sup. Ct. India, Oct. 17, 2023), a 5-judge bench of India's Supreme Court, in 4 opinions spanning 366 pages, refused to recognize same-sex marriages, but called on the government to study and implement further rights for same-sex couples. As summarized by BBC News:

The petitioners had argued that not being able to marry violated their constitutional rights and made them "second-class citizens".

They had suggested that the court could just replace "man" and "woman" with "spouse" in the Special Marriage Act - which allows marriage between people from different religions, castes and countries - to include same-sex unions.

The government and religious leaders had strongly opposed the petitions. The government had insisted that only parliament could discuss the socio-legal issue of marriage and argued that allowing same-sex marriage would lead to "chaos" in society.

On Tuesday, the judges agreed with the government, saying that only parliament could make law and the judges could only interpret them.

They accepted Solicitor General Tushar Mehta's proposal on behalf of the government to set up a committee, headed by the country's top bureaucrat, to consider "granting queer couples" rights and privileges available to heterosexual couples.

FBI Releases 2022 Hate Crime Statistics

The FBI yesterday released 2022 Crime Statistics, including data on hate crimes (Methodology)  (Data on Incidents). According to the FBI:

In 2022, law enforcement agency participation significantly increased ... with a population coverage of 91.7% submitting incident reports.... There were over 11,000 single-bias hate crime incidents.... [T]he top three bias categories ... were race/ethnicity/ancestry, religion, and sexual-orientation.

The FBI reported 2,042 incidents of religiously-motivated hate crimes. 1,122 of these were anti-Jewish. The next most numerous were 181 anti-Sikh incidents; 158 anti-Muslim and 107 anti-Catholic. President Biden issued a Statement (full text) on the Hate Crime Statistics, saying in part:

The data is a reminder that hate never goes away, it only hides. Any hate crime is a stain on the soul of America.

To those Americans worried about violence at home, as a result of the evil acts of terror perpetrated by Hamas in Israel, we see you. We hear you. And I have asked members of my team ... to prioritize the prevention and disruption of any emerging threats that could harm Jewish, Muslim, Arab American, or any other communities during this time. My Administration will continue to fight Antisemitism and Islamophobia.

Restaurant Settles EEOC Religious Discrimination Suit

The EEOC announced last week that a now-closed restaurant in Atlanta that was part of Landry's, a national restaurant group that continues to operate, has settled a Title VII religious discrimination lawsuit through a consent decree filed in a Georgia federal district court.  The EEOC said in part:

The EEOC alleged in its suit that Del Frisco’s violated federal law by failing to accommodate an employee’s religious practices and then discharging her. The employee, a server at the restaurant, had an existing religious accommodation of not working on Tuesdays so she could attend worship services. In 2019, when New Year’s Eve fell on a Tuesday, Del Frisco’s revoked her accommodation and tried to force her to work—alleging it was mandatory for servers to work the holiday. Despite saying it was a mandatory workday, Del Frisco’s gave other servers who did not need a religious accommodation the day off....

Under the consent decree resolving the lawsuit, Del Frisco’s will pay $25,000 in monetary damages to the former employee and train its management employees on religious discrimination at approximately 30 Del Frisco’s sister restaurants.

Recent Articles of Interest

From SSRN:

• Netta Barak Corren & Tamir Berkman, Constitutional Consequences, (New York University Law Review, Vol. 99, No. 3, 2024).
• Preston Green & Suzanne Eckes, All Aboard!: Making Charter School Boards All-Purpose State Actors Under the Supreme Court’s Amtrak Case, (Drake Law Review, Forthcoming).
• Neil Siegel, The Wages of Crying Roe: Some Realism About Dobbs v. Jackson Women’s Health Organization, (2 J. Am. Const. Hist. (forthcoming 2024)).
• Anne C. Dailey, In Loco Reipublicae, (Yale Law Journal, Forthcoming).
• Nancy A, McLaughlin, Laws Governing Restrictions on Charitable Gifts: The Consequences of Codification, (70 UCLA L. Rev. Disc. 2 (2023)).

From SmartCILP:

• Symposium, Religious Liberty at a Historic Crossroads: An Examination of the American Bedrock Principle and Its Unsettled Future, 54 Loyola University Chicago Law Journal, Issue 2 (2023).
• Zezen Zaenal Mutaqin, Restraint in the Classical Islamic Law, 29 Southwestern Journal of International Law 1-52 (2023).
• Mohamed Arafa, Rethinking the Tales of the Sharie'a: God Is Not a Juristic Person, but the Mosque Is, 29 Southwestern Journal of International Law 115-134 (2023).
• Shlomo C. Pill, The False Promise of Expanded Religious Liberty Rights after the COVID-19 Cases and Fulton v. City of Philadelphia, 31 William & Mary Bill of Rights Journal 825-884 (2023).

State May Regulate Health Care Sharing Ministries

In Gospel Light Mennonite Church Medical Aid Plan v. New Mexico Office of the Superintendent of Insurance, (D NM, Oct. 13, 2023), a New Mexico federal district court refused to enjoin New Mexico's insurance superintendent from regulating Health Care Sharing Ministries. The court held that the state's Insurance Code is a neutral, generally applicable statute, saying in part:

Individual Plaintiffs argue that the Superintendent’s March 26, 2020, press release, --- which cautions consumers about HCSMs and stating that these plans are unauthorized insurance products—is not neutral because it “sends a signal of official disapproval” of Individual Plaintiffs’ religious beliefs.... The Court disagrees....

Applying rational basis review, the court said that it "has little difficulty concluding that state laws mandating compliance with the Insurance Code constitute a legitimate area of governmental concern."

Japan Seeks to Revoke Tax Exempt Status of Unification Church

AP reports that Japan's government today asked the Tokyo District Court to revoke the Unification  Church's status as a religious organization. Japan's branch of the Church is known as the Family Federation for World Peace and Unification.  The step was taken after an Education Ministry investigation concluded that the Church for decades has manipulated its followers into donating money.  According to Japan's Education Minister, the church pushed its followers to purchase expensive goods and donate money beyond their financial ability, causing fear and harm to them and their families. If successful, the government action would remove the Church's tax exemption, but would not prevent it from operating in the country. [Thanks to Scott Mange for the lead.]

Court Gives Limited Relief to Native Americans Who Object to Park Improvements Project

 In Perez v. City of San Antonio, (WD TX, Oct. 11, 2023), a Texas federal district court held that members of the Native American Church should be given access for religious services to a point on the San Antonio River which is a Sacred Site for them.  Access is limited to 15 to 20 people for no more than an hour on astronomical dates that coincide with their spiritual beliefs.  The court deferred ruling on whether access for all-night peyote ceremonies will be allowed. The court refused to grant plaintiffs' request that the proposed improvements to the park in which the Sacred Site is located be limited so that the spiritual ecology of the Sacred Area would be preserved by minimizing tree removal and allowing cormorants to nest. The court said in part:

The most important part of Plaintiffs’ spiritual ecology is the confluence of the shape of the Mother Waters at the bend of the San Antonio River with the shape of the Eridanus constellation of stars.

Given the current extended drought, the lack of water flow from the Blue Hole Springs and other natural sources, there would be no San Antonio River/Mother Waters but for the City artificially assisting the river by pumping recycled waste water, presumably from the sewer reclamation system.... This creates something of a secular/religious symbiotic relationship between Plaintiffs and Defendant until it rains, the springs come to life and until the reformation and resurrection of the Project Area is complete. Amen.

... [T]he Court heard credible testimony of thousands of egrets, herons, and cormorants and their excrement nesting in the Project Area during their migrations at different times of the year. Once nested, the Migratory Bird Treaty Act precludes removal. The Court finds the bird deterrent operation is in the realm of public health and safety....

... [T]he Court finds the City has met its burden of proving a compelling government interest for public health and safety....

Moreover, Plaintiffs desire possibly to save trees by ordering the City to “reevaluate the Bond Project to develop alternative plans” would, given the lengthy redesign and re-permitting processes, exponentially extend Plaintiffs’ and the public’s presently fettered ability to enjoy the area. The temporary closing becomes semi-permanent. Instead of months, access would likely remain limited for years, as is the case of the faithful who find the Notre Dame Cathedral to be their sacred place and who for several years will have to use alternative places of worship. By its Order, it is the Court’s intent to make the fettered unfettered as soon as reasonably possible. It will be up to the parties to decide how long they wish to delay the unfettered with continuing litigation.

UPDATE: On Oct. 25, 2023, the Texas federal district court denied plaintiffs' emergency motion for an injunction pending appeal. 2023 U.S. Dist. LEXIS 192796.

 

Ban on California's Publicly Funded Home School Program Covering Faith-Based Instruction Challenged

California's public charter school program includes schools that fund independent study home schooling. Parents may use state funds for secular educational materials, but not for religious materials.  A school staff member must approve materials purchased with state funds and must periodically review work samples to assure that state educational standards are met. California Constitution Art. IX, Sec. 8 prohibits the teaching of religious doctrine in public schools, and the California Education Code requires charter schools to be non-sectarian. Suit was filed this week in a California federal district court seeking an injunction that will allow parents to spend instructional funds for faith-based materials and will require schools to accept work samples that derive from a faith-based curriculum.  The complaint (full text) in Woolard v. Thurmond, (ED CA, filed 10/11/2023), alleges that applying state law to prevent disbursement of instructional funds for faith-based materials and refusal to accept faith-based work samples violates plaintiffs Free Exercise and Free Speech rights. First Liberty Institute issued a press release announcing the filling of the lawsuit.

Kansas AG Asks 10th Circuit To End Required Use of Preferred Pronouns

Kansas Attorney General Kris Kobach in an Oct. 6 letter (full text) to the Chief Judge of the U.S. 10th Circuit Court of Appeals asks the court to end the practice of some district and circuit court judges to require references to counsel, parties and witnesses by use of their preferred pronouns.  The letter says in part:

There are lawyers in my office who, for both religious and non-religious reasons, reject the idea of individuals dictating their own applicable pronouns....

The idea that a person can dictate his or her own pronouns based on internal feelings and then expect others to go along with that choice is a quite recent development....  But regardless of the merits of this idea as an abstract matter, enlisting the power of the state to force others to affirm such individual choices or feelings crosses a line and raises major questions regarding compelled speech and the First Amendment.

Many people have religious beliefs that would prevent them from using pronouns that do not correspond to a person’s sex. In Christianity (the most common religion in the United States), this position generally proceeds from interpretations of Genesis 1:27 and other scriptures that speak of a male/female dichotomy among persons. Other major world religions likewise have doctrines that point in the same direction.... To force these individuals to violate their religious beliefs in order to be heard in court is a restriction on their free exercise of religion....

Indeed, “gender identity” is the subject of growing wave of legislation and litigation. So requiring those appearing in court to use (or refrain from using) certain pronouns may reveal a prejudgment on issues in litigation.

The Attorney General's office also issued a press release summarizing the letter.

Crisis Pregnancy Center Sues Protesters Under FACE Act

 A civil suit under the Freedom of Access to Clinic Entrances (FACE) Act was filed last week in a New York federal district court by CompassCare which operates an anti-abortion crisis pregnancy center in a Buffalo, NY suburb.  The complaint (full text) in Crisis Pregnancy Services, Inc. v. Kamke, (WD NY, filed 10/5/2023), alleges that defendant organized a counter-protest to CompassCare's Walk for Life at which protesters blocked a highway and assaulted walkers and police.  It alleges that subsequently, one of the defendants wrote graffiti on the organization's driveway, intending to deter staff, volunteers and patients from entering, and on another occasion stole a no-trespassing sign. Another defendant allegedly spray painted the word Liars over the center's entrance sign.  Finally it alleges that Jane Doe defendants were involved with a firebombing and graffiti. LifeNews reports on the lawsuit.

Cert. Filed In Abortion Sidewalk Counseling Dispute

 A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Reilly v. City of Harrisburg, (Sup. Ct., filed 10/10/2023).  In the case, the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of a suit brought by anti-abortion sidewalk counselors challenging Harrisburg's ordinance creating a 20-foot buffer zone designed to exclude protesters around health-care facilities, including abortion clinics. In its opinion, the 3rd Circuit agreed that the city did not have a policy or custom prohibiting one-on-one sidewalk counseling. Liberty Counsel issued a press release announcing the filing of the petition for review.

Indiana Man Indicted for Sending Death Threats to ADL Staff

The Department of Justice announced last week that a federal grand jury has indicted an Indiana man for making telephone death threats to offices of the Anti-Defamation League in New York, Houston, Denver and Las Vegas. The Indictment (full text) in United States v. Boryga, (SD IN, Oct. 3, 2023), charges defendant with four counts of transmitting in interstate commerce a threat to injure. It charges that defendant chose the threat targets because of the actual and perceived religion of ADL employees and members. According to DOJ:

If convicted on all counts, Boryga faces a maximum penalty of 20 years in prison, three years of supervised release and a fine of up to $250,000.

Feds Settle Suit Brought by Native American Tribes Over Destruction of Sacred Site

 A settlement between several federal agencies and Native American tribes in Oregon was reached last week in a case challenging the government's destruction of a small sacred site near Mount Hood when it widened a highway.  (See prior related posting.) The 9th Circuit had dismissed the case as moot, and plaintiffs filed an appeal with the U.S. Supreme Court.  Last week the parties filed a Joint Stipulation to Dismiss (full text) in Slockish v. U.S. Department of Transportation, (Sup. Ct, Oct. 5, 2023). Under the settlement, the government is to construct a tree or plant barrier to protect the site, allow access to an existing quarry for ceremonial and cultural uses, and allow plaintiffs to rebuild a stone altar on the site. [Note that the filed stipulation appears to be erroneously dated "2022" instead of "2023". The Supreme Court docket for the case confirms that 2023 is the correct date.] Oregon Capital Chronicle  and AP report on the settlement.

1st Circuit Remands Covid Vaccine Religious Exemption Case

In Brox v. Woods Hole, Martha's Vineyard and Nantucket Steamship Authority, (1st Cir., Oct. 6, 2023), the U.S. 1st Circuit Court of Appeal affirmed in part and vacated in part a trial court's refusal to require that plaintiffs be given a religious exemption from a state agency's Covid vaccine mandate. The court said in part:

[T]he appellants argue that the Policy, as administered, provides medical exemptions that permit unvaccinated employees to work "in close contact with colleagues, despite the purported direct threat . . . [their] unvaccinated status poses to them" but not religious exemptions that would permit unvaccinated employees to do the same even though their unvaccinated status poses no greater threat. And, according to the appellants, the Policy, as administered, is therefore not generally applicable -- and thus is subject to strict scrutiny -- because it "prohibits religious conduct while permitting secular conduct that undermines the government's asserted interests in a similar way"....

The appellees do argue that the Policy is generally applicable -- and so not subject to strict scrutiny -- for reasons having to do with the differing statutory liability that the Authority would face in denying requests for exemption that are medically rather than religiously based. The appellees assert in that regard that an employer may show that an accommodation for religious practice would constitute an "undue hardship" under Title VII of the Civil Rights Act of 1964 ... more easily than an employer may show that an accommodation for a disability would constitute an undue hardship under the Americans with Disabilities Act.... 

But even if we were to accept the appellees' contention about the greater leeway that an employer has under Title VII,.., the appellees do not develop any argument as to why we must conclude that, as a matter of law, the greater federal statutory liability that an employer faces for denying a medical exemption from a COVID-19 vaccine mandate than for denying a religious exemption from one suffices in and of itself to show that, for free exercise purposes, the former exemption may be granted and the latter exemption may be denied to employees who pose comparable risks of spreading the virus without thereby rendering the mandate not generally applicable and so subject to strict scrutiny....

We thus do not see how we may rely on this ground to affirm the District Court's "likelihood of success" ruling as to the appellants' free exercise claim....

Thus, we vacate the District Court's ruling with respect to its denial of the requested injunctive relief on the appellants' free exercise claim. We leave it to the parties and to the District Court on remand, therefore, to consider the appellants' request for that relief under the applicable legal framework that we have set forth....

Recent Articles of Interest

From SSRN:

• Lucy C. Finchett-Maddock & Andreas Philippopoulos-Mihalopoulos, To Open Up: A performative rewriting of Pendragon v United Kingdom (1998) 27 EHRR CD 179 , (Helen Dancer, Bonnie Holligan and Helena Howe (eds.) Earth Law Judgments Project (Hart, 2024)).
• Samiul Hasan, Preventing Muslim Men from “Doing Injustice”: Ending Polygamy in Muslim Majority Countries, (September 29, 2023).
• Bariyima Kokpan, Examining the Challenges of Justice to Development and Peace: A Case Study of the Justice, Development, Peace Commission of the Catholic Church, (September 8, 2023).
• Beatrice Jessie Hill, History's Speech Acts, (108 Iowa Law Review 2215 (2023)).
• Mitchell N. Berman, Religious Liberty and the Constitution: Of Rules and Principles, Fixity and Change, (U of Penn Law School, Public Law Research Paper No. 23-36 (2023).
• Bejamin Perryman, Proving Discrimination: Evidentiary Barriers and Section 15(1) of the Charter, (Supreme Court Law Review (2d), Forthcoming).
• Oona A. Hathaway, Alaa Hachem & Justin Cole, A New Tool for Enforcing Human Rights: Erga Omnes Partes Standing, (Columbia Journal of Transnational Law, Vol. 61, No. 2, Forthcoming).

From SSRN (Abortion rights):

• Thomas Burrell, Dobbs v. Jackson Women's Health Organization: Revisiting the Fourteenth Amendment, Due Process of Law, and American Citizenship, (Ohio Northern University Law Review, Vol. 49, No. 2, 2023).
• Carmel Shachar & Carleen Zubrzycki, Informational Privacy After Dobbs, (Alabama Law Review, Forthcoming).
• Hillary Schneller, Diana Kasdan, Risa Kaufman & Alex Wilson, Dobbs v. Jackson Women's Health Organization: Reckoning with its Impact and Charting a Path Forward, (University of Pennsylvania Journal of Constitutional Law, Vol. 25, No. 5, 2023).

From SmartCILP and elsewhere:

• Berta Esperanza Hernandez-Truyol, Awakening the Law: Unmasking Free Exercise Exceptionalism, 72 Emory Law Journal 1061-1104 (2023).
• Karin Carmit Yefet & Ido Shahar, Divorced from Citizenship: Palestinian-Christian Women between the Church and the Jewish State, [Abstract], 48 Law & Social Inquiry 89-129 (2023).
• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) and 501(c)(4) Organizations, (Sept. 2023 edition).

California Governor Vetoes Bill Explicitly Barring Caste Discrimination

Yesterday, California Governor Gavin Newsome vetoed Senate Bill 403 (veto message). The bill would have explicitly outlawed discrimination on the basis of caste. The Governor's message said that caste discrimination is already prohibited by current law that bars discrimination, among other things, on the basis of race, color, religion, ancestry and national origin. As reported by Reuters, opponents of the bill contend that it broadly paints the Hindu and South Asian communities as being discriminatory.

School District Settles Suit by Native Americans Over Cutting of Students' Hair

A consent decree (full text) was entered this week in Johnson v. Cody-Kilgore Unified School District, (D NE, Oct. 4, 2023). In the case, Native American parents (members of the Rosebud Sioux tribe) who practice traditional Lakota religious traditions sued over the school's cutting of their children's hair as part of a lice check and disposing of the hair in violation of Lakota tradition. (See prior posting.) Under the Consent Order, the School District will prohibit School Officials from cutting students' hair for any reason without the written parental (or guardian's) consent. It will also provide recognition of Native American Heritage Month and Indigenous Peoples' Day. Also the school district will pay damages totaling $227,500. Nebraska Examiner reports on the settlement agreement.

Episcopal Priest Sues County Commissioners Over Invocation Policy

Suit was filed this week in a Michigan federal district court by an Episcopal Priest in Grand Haven, Michigan, challenging the manner in which the Ottawa County Board of Commissioners currently selects individuals to deliver invocations at Board meetings. The complaint (full text) in Cramer v. Ottawa County, (WD MI, filed 10/2/2023), alleges that prior to 2023, different Commissioners on a rotating basis selected individuals to offer invocations. However, since January 2023 when Joe Moss became Chairperson of the Commission, only he selects persons to give invocations.  He has selected only male pastors of Christian churches who share his religious beliefs.  Some of the pastors have included in their invocations praise for a far-right political group that Moss founded and leads. Plaintiff is an advocate of LGBTQ rights, while Moss has promoted an anti-LGBTQ agenda. Grand Haven Tribune reports on the lawsuit.

Reservist Challenges Military's Admonition of Him for His Remarks at Retirement Ceremony

Suit was filed this week in a Texas federal district court by Jace Yarbrough, a Major in the Air Force Reserve, challenging a Letter of Admonition issued to him by the military for the content of remarks he made while speaking, in uniform, at a retirement ceremony for Senior Master Sergeant Duane Fish, an Air Force flight superintendent with whom he worked closely and with whom he shared religious beliefs and values.  The complaint (full text) in Yarbrough v. United States Space Force, (ED TX, filed 10/3/2023), asserts that Yarbrough's Christian faith is central to his worldview, conduct and speech. The complaint describes the remarks at issue as encouraging people to practice the courage and virtue exemplified by SMSgt Fist.  It goes on:

92. In keeping with that theme, [Yarbrough] expressed his personal concerns about the negative impact of politicization within the military.... He worried that “radical” factions in “our wider culture” have “brought the culture war inside the DoD,” and that politicization of the military would be “a death knell for courage and competence.” 

93. To support his views, he drew on the teachings and thought of Eastern Orthodox Christian and writer Aleksandr Solzhenitsyn ... regarding the corrosive cultural consequences of dishonesty and self-deception.... 

94. Mr. Yarbrough gave two examples of objective realities he believes are known intuitively to all persons as persons: 1) “men can’t birth babies” and 2) “boys should not be allowed in girls’ locker rooms.” 

95. He expressed his faith-based belief that forcing people to deny such self-evident beliefs “requires constant . . . self-deception,” which can “habituate [us] to dishonesty” and cause us to lose our “grip on objective reality,” making us “less capable and less effective in our world.... 

96. As part of his warning against politicization, he referenced “recent DoD-wide extremism training” that he had attended, in which he “was relieved to see that [his] teammates recognized that training for what it was, a thinly veiled flex of political power.”...

The suit alleges that the Letter of Admonition, among other things, violated the Religious Freedom Restoration Act, as well the Free Exercise, Free Speech and Establishment Clauses.

First Liberty Institute issued a press release, including a link to the full text of plaintiff's remarks at the retirement ceremony.

Group Urges Students To Bring A Bible To School Today

Today has been designated "Bring Your Bible to School Day" by the Christian organization, Focus on the Family. The event's website says in part:

Bring your Bible to whatever school looks like for you! Whether your school is public, private, or at home, you can participate!...

As Christians, we’re called to share the gospel with the world! Bring Your Bible to School Day provides you with an easy way to start that conversation with your friends and classmates.

It explains further:

You are allowed to invite your friends to join you to read the Bible and talk about it. But remember, you cannot make someone else read the Bible if they don’t want to....

You can offer Bibles to friends and classmates as long as you hand them out in a way that does not disturb class time. For example, you can share the Bible during lunch, at recess, before school, or after school.

According to the website, last year, 877,000 students from over 50,000 schools participated.

Potential Candidate Challenges Religious Oath On New Jersey Candidate Petition Forms

Suit was filed this week in a New Jersey federal district court challenging the New Jersey requirement that candidates filing to run for public office sign an oath that ends with the phrase "so help me God." The complaint (full text) in Tosone v. Way, (D NJ, filed 10/3/2023), alleges that plaintiff, who wishes to run for public office, is unable as a matter of conscience to sign an oath which is religious. Alleging that the current version of the oath violates Article VI of the Constitution, as well as the free speech, free exercise and Establishment Clauses, plaintiff seeks a court order requiring the Secretary of State to provide a form that allows him to run for public office without his swearing "so help me God." New Jersey Monitor reports on the case.

New South Asian Congressional Caucus Launched Amid Criticism from Some Civil Rights Groups

Last week, Michigan Congressman Shri Thanedar announced formation of the 28-member "Hindu, Buddhist, Sikh, Jain US Congressional Caucus." According to India West Journal: "The group will address cultural misunderstandings, promote interfaith dialogue and harmony, and support initiatives to promote the well-being, education, and empowerment of the Hindu, Buddhist, Sikh, and Jains in the US." However, four Hindu, Sikh and Muslim civil rights groups issued a press release sharply criticizing formation of the caucus, saying it does not represent all parts of the South Asian community across faith, caste and ethnic lines.  The press release says in part:

"... In June of this year, Congressman Thanedar announced his intention to form a Hindu Caucus without input from the full spectrum of Hindu American civil society, including Dalit and linguistic community organizations. This caucus seems to be a new iteration of that previous announcement.”

“If this caucus is that announcement repackaged with a more inclusive label but the same makeup, it will likely combat meaningful oversight of the U.S.-India relationship, ongoing work to protect the civil rights and safety of Sikhs and other marginalized groups, and efforts to ban caste discrimination at a federal level. Moreover, given the lack of Muslim representation, it may oppose ongoing efforts to combat Islamophobia. In short, any caucus without inclusive representation from the Indian diaspora will serve as nothing more than a vehicle for Hindu nationalist policies that will inevitably harm the entire South Asian American community, including Sikh, Muslim, Dalit, Buddhist, Jain, and even Hindu Americans.

School Enjoined from Social Transitioning of Students Without Parental Consent

In T.F. v. Kettle Moraine School District, (WI Cir. Ct., Oct. 3, 2023), a Wisconsin state trial court enjoined a school district from allowing or requiring staff to refer to students using a name or pronouns at odds with the student’s biological sex, while at school, without express parental consent. The court said in part:

This Court has before it what modern society deems a controversial issue – transgenderism involving minors within our schools. Clearly, the law on this issue is still developing across the country and remaining largely unsettled. However, this particular case is not about that broad controversial issue. This particular case is simply whether a school district can supplant a parent’s right to control the healthcare and medical decisions for their children. The well established case law in that regard is clear – Kettle Moraine can not. The School District abrogated the parental rights of B.F. and T.F. on how to medically treat A.F. when the district decided to socially affirm A.F. at school despite B.F. and T.F. requesting it does not. Through its policy of disregarding parental wishes on a medical or health related decision and with how fast questioning ones gender can arise, P.W. and S.W. are at real risk of being harmed by the current School District policy. 

The current policy of handling these issues on a case-by-case basis without either notifying the parents or by disregarding the parents wishes is not permissible and violates fundamental parental rights.

The Freeman reports on the decision.

11th Circuit: Buddhist Organization Prevails Under Alabama State Constitution in Zoning Fight

In Thai Meditation Association of Alabama, Inc. v. City of Mobile, Alabama,(11th Cir., Oct. 2, 2023), the U.S. 11th Circuit Court of Appeals partly reversed the summary judgments entered in favor of the city of Mobile at the district court level.  At issue is Mobile's denial zoning approval for a Buddhist organization to use a house in a residential district for religious purposes. The appeals court held that neither party is entitled to summary judgment under RLUIPA because of factual disputes.  It held that the district court correctly dismissed plaintiff's Free Exercise claim because the zoning designation process is neutral and generally applicable. It held however, that the Buddhist organization is entitled to an injunction under the Alabama Religious Freedom Amendment to the state constitution, saying in part:

To begin, we have never held that neighborhood character or zoning are compelling government interests sufficient to justify abridging core constitutional rights....  ... [A]mici also note that generalized, high-level invocations of “zoning” are often used to target minority faith’s land use applications.... These concerns underscore why it is necessary to hold government entities to their burden to state and support a well-defined government interest. 

Here, the City has failed to carry its burden to demonstrate a compelling government interest. The generalized invocations of neighborhood character and zoning fail as a matter of law under our precedents. The City’s invocation of traffic concerns fare slightly better..., but they are unsubstantiated in the record....

9th Circuit Stays Pending Appeal Feds' Partial Injunction Against Idaho Abortion Ban

In United States v. State of Idaho, (9th Cir., Sept. 28, 2023), the U.S. 9th Circuit Court of Appeals stayed, pending appeal, a district court's injunction barring enforcement of Idaho's abortion ban ("section 622") to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act (EMTALA). (See prior posting.) The appeals court said in part:

The Legislature has made a strong showing that EMTALA does not preempt section 622. EMTALA does not require abortions, and even if it did in some circumstances, that requirement would not directly conflict with section 622. The federal government will not be injured by the stay of an order preliminarily enjoining enforcement of a state law that does not conflict with its own. Idaho, on the other hand, will be irreparably injured absent a stay because the preliminary injunction directly harms its sovereignty.

Politico reports on the decision. [Thanks to Scott Mange for the lead.]

Faith-Based Foster Care Agency May Limit Clients to Those with Compatible Religious Beliefs

 In two decisions issued last week, a South Carolina federal district court rejected Establishment Clause challenges to waivers from federal anti-discrimination requirements granted faith-based child placement agencies.  In Rogers v. U.S. Department of Health & Human Services, (D SC, Sept. 29, 2023), plaintiff challenged an Executive Order issued by the governor of South Carolina allowing licensing of religious child placement agencies that worked only with clients who shared their religious beliefs. At issue in the case was the rejection by Miracle Hill Ministries of a foster-parent application submitted by a same-sex couple who belonged to the local Unitarian-Universalist Church. The court rejected plaintiffs' Equal Protection claim because plaintiffs had not identified any state action involved.  It rejected their Establishment Clause claim, saying in part:

Plaintiffs’ legal premise is based on the now abandoned framework of the “Lemon Test” by focusing their argument on the third factor in Lemon regarding an “excessive government entanglement with religion.” ... Instead, based on historical practices and understandings which Kennedy requires, Establishment Clause protections are more likely triggered “when the government use[s] the established church to carry out certain civil functions, often by giving ‘the established church a monopoly over a specific function.’” ...

Plaintiffs identify but misstate three “hallmarks” of “founding-era religious establishments” that “reflect[] ‘forms of coerc[ion]’ regarding ‘religion or its exercise.’”... Stated in full, they are: 1) “the government punished dissenting churches and individuals for their religious exercise,” 2) “the government provided financial support for the established church, often in a way that preferred the established denomination over other churches,” and 3) “the government used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function[.]” ...

Plaintiffs fail to meet their burden to show that these “hallmarks” exist here...

In Madonna v. U.S. Department of Health & Human Services, (D SC, Sept. 29, 2023), plaintiff was rejected by Miracle Hill because she did not share its evangelical-Christian beliefs and could not affirm its statement of faith. Rejecting plaintiff's Establishment Clause claims, the court said in part:

Defendants did not compel Maddonna to sign Miracle Hill’s statement or leave her without an adequate alternative to signing it. To the contrary, Maddonna could foster the same children at any of twenty-six other private agencies in the State... or with the State itself....  Accordingly, Maddonna has not shown “a historically disfavored establishmentarian practice” based on a claim of “subtle and indirect pressure.”...

Maddonna’s attempt to implicate an impermissible religious accommodation is foreclosed by Fulton v. City of Philadelphia, an analogous case in which the Supreme Court found the denial of a similar religious accommodation for foster care agencies burdened the Free Exercise Clause.

Becket issued a press release announcing the decisions.

6th Circuit Upholds TN and KY Laws Barring Gender Transition Treatment For Minors

 In L.W. v. Skrmetti, (6th Cir., Sept. 28, 2023), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, reversed preliminary injunctions issued by district courts in challenges to statutes in Tennessee and Kentucky prohibiting chemical, hormonal or surgical treatment of minors for gender dysphoria. The majority rejected due process and equal protection challenges to the state laws, saying in part:

No one in these consolidated cases debates the existence of gender dysphoria or the distress caused by it. And no one doubts the value of providing psychological and related care to children facing it. The question is whether certain additional treatments—puberty blockers, hormone treatments, and surgeries—should be added to the mix of treatments available to those age 17 and under. As to that, we return to where we started. This is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two. Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments. That is precisely the kind of situation in which life-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges.

Judge White dissented, saying in part:

The statutes we consider today discriminate based on sex and gender conformity and intrude on the well-established province of parents to make medical decisions for their minor children. Despite these violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the majority concludes that the statutes are likely constitutional and reverses district court orders enjoining the statutes. I respectfully dissent.

EEOC Sues Chipotle For Manager's Harassment of Muslim Teen

 The EEOC announced that last week it filed a Title VII suit against the restaurant chain Chipotle contending that a manager at a Kansas restaurant location harassed a teenage employee for wearing a hijab. According to the EEOC:

During the summer of 2021, an assistant manager began repeatedly asking [the employee] to remove her hijab, or headscarf, pressuring her to show him her hair. Despite the teen’s rejections and complaints to management, Chipotle failed to act to stop the manager’s harassment. Chipotle’s inaction resulted in the manager escalating his abuse, ultimately grabbing and forcibly removing part of the teen’s hijab.

After the teen reported the incident, Chipotle again failed to take prompt corrective action, and she was forced to submit her two weeks’ notice. The EEOC further alleges that Chipotle retaliated against the teen by refusing to schedule her to work additional shifts unless she agreed to transfer locations, while allowing her harasser to continue working at the same location.

2 North Carolina Abortion Restrictions Enjoined

 In Planned Parenthood South Atlantic v. Stein, (MD NC, Sept. 30, 2023), a North Carolina federal district court issued a preliminary injunction barring enforcement of two provisions of North Carolina's law regulating abortions.  The court said in part:

The plaintiffs are likely to succeed on the merits of their vagueness challenge to the requirement that providers determine and document the probably intrauterine location of a pregnancy before administering medication intended to terminate a pregnancy. The Act does not provide a clear standard by which providers can make this determination....

The plaintiffs are also likely to succeed on the merits of their equal protection challenge to the Act's requirement that surgical abortions after 12 weeks of pregnancy must be performed in a hospital.  The plaintiffs have offered uncontradicted evidence that the same medical procedures used for surgical abortions are used for miscarriage management and that the risks of those identical procedures are the same whatever their purpose... The plaintiffs have shown the absence of any rational medical basis for distinguishing between these two classes of patients....

CNN reports on the decision. 

Baltimore Catholic Archdiocese Files For Bankruptcy Reorganization

The Archdiocese of Baltimore Announced last Friday that it is filing for Chapter 11 bankruptcy protection in advance of the Oct. 1 effective date of a Maryland Child Victims Act of 2023 which removes the statute of limitations for civil actions by victims of sexual abuse that occurred while the victim was a minor. In the Announcement, Archbishop Lori said in part:

... I have made the decision I believe will best allow the Archdiocese both to equitably compensate victim-survivors of child sexual abuse and ensure the local Church can continue its mission and ministries.

In an interview with Catholic Review, the Archbishop said in part:

... [S]ince the new law does not provide a defined period of time or “lookback window” for victim-survivors to file suits, as many other states have done, the archdiocese could have faced many years of liability for anything that happened over the course of the last 80 years. The Chapter 11 reorganization process creates a one-time window for victims of past cases of abuse to file a claim and participate in the settlement process. Once that process is complete, no future lawsuits or claims will be allowed in historic cases of abuse.

Supreme Court Opens Fall Term

The U.S. Supreme Court today opened its Fall 2023 Term today by issuing the typically long first-day-of-term Order List. The Court denied review in hundreds of cases.  Among the interesting cases were Truong v. Stitt, (Docket No. 22-7743) and Truong v. Dewine, (Docket No. 22-7800), in which a pro se plaintiff sued a lengthy list of defendants-- including five U.S. Supreme Court Justices-- challenging, among other things, Oklahoma's (10th Circuit opinion) and Ohio's (district court opinion) laws restricting abortions. In disposing of the cases, the Supreme Court said:

Because the Court lacks a quorum, 28 U. S. C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U. S. C. §2109, which provides that under these circumstances "the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court." Justice Thomas, Justice Alito, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett took no part in the consideration or decision of this petition.

Yesterday, before the start of the new term, the traditional Red Mass was held at the Cathedral of St. Matthew the Apostle in Washington, D.C.  Catholic Standard, reporting on the Mass, said that Chief Justice Roberts, Justice Barrett; and retired Justice Kennedy were in attendance.

Recent Articles of Interest

From SSRN:

• Petrina Tan Tjin Yi, Faith-Based Investing, Stewardship, and Sustainability: A Comparative Analysis, (NUS Law Working Paper No. 2023/024 (2023).
• Manal Totry-Jubran, Examining Palestinian Arabs Group Rights in Israel through A Multicultural Lens. (Oxford Handbook on the Israeli Constitution (2023, Forthcoming)).
• Inês Granja, Interview with Heiner Bielefeldt: Understanding Religious Freedom, (iCourts Working Paper Series, no. 334, 2023).
• Marta Lasek-Markey, Protecting the employee's conscientious choices and EU non-discrimination law. A case study from Ireland (September 21, 2023).
• Michael L. Smith, Public Accommodations Laws, Free Speech Challenges, and Limiting Principles in the Wake of 303 Creative, (Louisiana Law Review, Vol. 84, (Forthcoming)).
• Robert W. McGee, Monica Violeta Achim & Gabriela-Mihaela Muresan, Do All Agnostics and Atheists Think the Same Way about Tax Evasion? A 78-Country Study, (June 28, 2023).
• Peter J. Smith & Robert W. Tuttle, Establishment Clause Mythology, (GWU Legal Studies Research Paper No. 2023-55 (2023).

From SmartCILP:

• Loren Jacobson, Abortion and the Spiritual Imperative: Are the New Abortion Bans Susceptible to Religion Clause Challenges?, 72 DePaul Law Review 663-702 (2023).
• Symposium: Liberalism, Christianity & Constitutionalism, 98 Notre Dame Law Review 1439-1848 (2023).

Texas AG Sues Yelp for $1M for Mislabeling Pregnancy Resource Centers

Texas Attorney General Ken Paxton last week filed a civil lawsuit against Yelp contending that it violated the Texas Deceptive Trade Practices- Consumer Protection Act by posting a "consumer notice" on the Yelp listings of anti-abortion Crisis Pregnancy Centers. The complaint (full text) in State of Texas v. Yelp, Inc., (TX Dist. Ct., filed 9/28/2023), alleges in part:

Yelp has engaged in deceptive trade practices, including disparagement of the goods, services, or business of another by false or misleading representation of facts.... Specifically, Yelp posted a “consumer notice” on the Yelp business pages of every pregnancy resource center across the nation, misleadingly stating that these centers “typically provide limited medical services and may not have licensed medical professionals onsite.” That was false. Pregnancy resource centers provide significant care and counseling to pregnant women. And they commonly provide significant medical services, and have licensed medical professionals onsite....

In or around February 2023, after approximately six months of displaying false and misleading disclaimers on the business pages of pregnancy resource centers, Yelp finally removed the misleading disclaimer regarding the alleged lack of medical professionals and medical services onsite, replacing it with a new disclaimer that stated: “This is a Crisis Pregnancy Center. Crisis Pregnancy Centers do not offer abortions or referrals to abortion providers.”

In addition to injunctive relief, the suit asks for civil penalties, attorneys' fees, restitution and costs that total at least $1 million. Paxton's office issued a press release announcing the filing of the lawsuit. [Thanks to Scott Mange for the lead.]

8 Federal Agencies Clarify When Title VI Bars Discrimination Related to Religion

The White House announced yesterday that eight federal agencies have "clarified—for the first time in writing—that Title VI of the Civil Rights Act of 1964 prohibits certain forms of antisemitic, Islamophobic, and related forms of discrimination in federally funded programs and activities."  The agency actions are seen as part of President Biden’s National Strategy to Counter Antisemitism.  Title VI of the 1964 Civil Rights Act covers discrimination on the basis of race, color, or national origin in programs and activities receiving federal financial assistance. It does not explicitly bar religious discrimination.  The agency Fact Sheets publicized by the White House each focuses on the kind of discrimination against persons of a particular religion that could come within the scope of Title VI. Here are the agencies' interpretations:

Department of Agriculture Fact Sheet; Department of Health and Human Services Fact Sheet; Department of Homeland Security Fact Sheet; Department of Housing and Urban Development Fact Sheet and Memorandum; Department of Interior Fact Sheet; Department of Labor Fact Sheet; Department of Treasury Fact Sheet; Department of Transportation Fact Sheet.

Court Preliminarily Enjoins Montana's Ban on Transgender Treatments for Minors

 In Van Garderen v. State of Montana, (MT Dist. Ct., Sept. 27, 2023), a Montana trial court granted a preliminary injunction against enforcement of SB 99, the state's ban on surgical and hormonal treatments for minors suffering from gender dysphoria.  It concluded that the law likely violates the Equal Protection and Privacy provisions of the Montana Constitution.  The court said in part:

The Court finds that SB 99 likely violates Montana's Equal Protection Clause because it classifies based on transgender status—making it a sex-based classification—and because it infringes on fundamental rights, subjecting it to strict scrutiny. The Court finds that SB 99 likely does not survive strict scrutiny because it does not serve its purported compelling governmental interest of protecting minor Montanans from pressure to receive harmful medical treatments. Alternatively, the Court finds that SB 99 is unlikely to survive any level of constitutional review. The Court also finds that SB 99 likely violates Plaintiffs’ right to privacy under Montana’s Constitution because the Court does not find that the treatments proscribed by SB 99 constituted “medically-acknowledged, bonafide health risk[s][,]” and because, again, SB 99 likely cannot survive strict scrutiny.....

LawDork reports at greater length on the decision. [Thanks to Scott Mange for the lead.] 

School Board Member Sues to Vindicate Her Reading of Bible at Board Meetings

Suit was filed this week in an Arizona federal district court by Heather Rooks, a member of the Peoria, Arizona school board, seeking a declaratory judgment to vindicate her practice of quoting Scripture during the period of each Board meeting devoted to members making their own comments.  Advocacy organizations had complained about Rook's practice, and legal counsel to the Board furnished an opinion that reading Scripture during Board meetings violates the Establishment Clause. The complaint (full text) in Rooks v. Peoria Unified School District, (D AZ, filed 9/26/2023) seeks a judicial ruling that plaintiff's practice does not violate the Establishment Clause or the Arizona Constitution, that punishment for her practice violates her free speech and free exercise rights, and that she is entitled to absolute legislative immunity for her recitation of Scripture. Fox News reports on the lawsuit.

EEOC Sues on Behalf of Muslim Employee

 On Tuesday, the EEOC announced that it has filed a Title VII lawsuit against Blackwell Security Services, Inc., a hotel and condominium staffing company, for refusing to accommodate a Muslim employee's religious practice.  According to the EEOC:

[T]he employee, who worked as a concierge in Chicago, Illinois, is a practicing Muslim who wears a beard as required by his religious beliefs. Soon after he was hired, he was told by a Blackwell supervisor that it was company policy that all employees be clean shaven. The employee requested an exemption from the policy to accommodate his religious practice. However, according to the EEOC’s complaint, Blackwell told him to shave his beard or be terminated. To avoid losing his job, the employee complied.

Michigan Supreme Court Adopts New Rule Requiring Use of Preferred Pronouns, or Respectful Alternative

In Amendment of Rule 1.109 of the Michigan Court Rules, (MI Sup. Ct., Sept. 27, 2023), the Michigan Supreme Court by a vote of 5-2 adopted a Rule requiring Michigan courts to use the name and personal pronouns listed by parties and attorneys on pleadings in the case when addressing, referring to or identifying a party or attorney orally or in writing. Alternatively, the court may use "other respectful means of address not inconsistent with the individual’s designated salutation or personal pronouns." Two Justices filed opinions concurring in the adoption of the Rule, and two other Justices filed dissents. Justice Welch, concurring, said in part:

[P]eople object to honoring a person’s specified pronouns on the basis that they do not personally agree with the notion that someone can switch genders or be nonbinary. This was the subject of a great deal of the input we received after publishing the proposed amendments. Whether for religious or other reasons, many comments reflected a personal belief that gender could not change. But the rule provides that “other respectful means” can be used to address a party who makes a specific pronoun request. Certainly, asking our judges to be respectful to litigants using other general neutral means (such as addressing a party as “Attorney Smith” or “Plaintiff Smith”) does not force anyone to violate their beliefs.

Justice Bolden concurring said in part:

Some commenters have raised First Amendment concerns, arguing that the amendment compels speech and/or infringes upon religious liberty. However, Code of Judicial Conduct, Canon 2(A) ...requires judges to “accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and [they] should do so freely and willingly.”... Similarly, the United States Supreme Court has explained that government employees have certain limitations on their freedom that they must accept in the workplace....

Justice Zahra, dissenting, said in part:

Some believe that the use of preferred pronouns is simply a matter of courtesy and that those who oppose it are stubborn, perhaps even bigoted. Others, however, believe they should not be compelled, especially under oath and/or in conflict with their deeply held religious beliefs, to affirm a person’s preferred pronouns that are inconsistent with the biological gender on that person’s birth certificate. All told, this is a fluid political debate into which our judicial branch of state government should not wade, let alone dive headfirst and claim to have resolved. Such hubris has no place within the operation of a judicial branch of state government. As aptly stated by the Catholic Lawyers Society of Metropolitan Detroit, “[t]he Court should decline to insert itself into one of the most controversial social issues of our time, declare a winner, dismiss objections as mere products of bigotry, and threaten to punish dissenters whilst ignoring their constitutional rights.” I am deeply troubled by the Court’s willingness to do so.

Justice Viviano, dissenting, said in part:

... [A]ll the arguments that the concurrences employ against the constitutional concerns with the present action could in turn be employed to support the opposite rule. I have my doubts that the majority would be so cavalier about the First Amendment implications of their actions if the shoe was on the other foot.

CBS Detroit reports on the new rule.

Israel's High Court Orders Government To Explain Its Inaction Against Top Rabbi's Hateful Remarks

 Times of Israel and Jerusalem Post report that on Tuesday Israel's Supreme Court, sitting as the High Court of Justice, issued a temporary injunction ordering the government to explain why it has not taken disciplinary action against Jerusalem's Sephardi Chief Rabbi Shlomo Amar for the severely derogatory remarks he has made about Reform Judaism, the LGBTQ community and the Women of the Wall Movement.  For example, Amar has blamed small earthquakes in Israel earlier this year on the LGBTQ community and has called Reform Jews "evil people who do every injustice ... against the Torah." Petitioners-- the Reform Movement, the Women of the Wall, and the Jerusalem Open House for Pride and Tolerance-- say they have asked the government to take action 16 times in the last four years, but nothing was done.

Employees Failed to Show Sincere Religious Beliefs for Vaccine Exemptions

In Gardner-Alfred v. Federal Reserve Bank of New York, (SD NY, Sept. 25, 2023), a New York federal district court dismissed RFRA, Title VII and First Amendment claims by two Federal Reserve Bank employees who were denied religious exemptions from the FRB's Covid vaccine mandate.  The court, in a 52-page opinion, concluded that neither Lori Gardner-Alfred nor Jeanette Diaz had demonstrated that their objections to the vaccine were based on sincere religious beliefs. The court said in part:

Gardner-Alfred claims to be a member of the Temple of Healing Spirit, which is a belief system that she describes as “oppos[ing] the invasive techniques of traditional Western medicine.” ...

Defendant argues that no reasonable jury could find that Gardner-Alfred’s objections to the vaccine were grounded in sincerely held religious beliefs.,,,  Defendant argues that there is no evidence Gardner-Alfred enjoyed any relationship with the Temple of Healing Spirit beyond paying for a vaccination exemption package and that her medical history, both before and after she made her request for a religious accommodation, is inconsistent with her alleged religious beliefs....

 No reasonable jury thus would be able to conclude that her claimed religious beliefs were anything other than contrived....

... [T]here is undisputed evidence that Diaz would have a motive to “fraudulently hid[e] secular interests behind a veil of religious doctrine.”... Diaz submitted her accommodation request days after attending a secular anti-vaccination webinar featuring materials entitled “White Paper—Experimental Covid Vaccines,” and “Review of Ivermectin Efficacy.”...  [S]he subscribed to at least eight newsletters, which sent her several hundred emails, from sources opposing the vaccine on secular grounds.... 

There also is evidence of Diaz acting in a manner inconsistent with her claimed religious views.... Diaz concedes that she has on many occasions taken medications and received injections without first checking whether they contain or were made or manufactured with aborted fetal cell lines...

Diaz further does not dispute that the views that she now claims to hold are different from those held by the church of which she claims to be a member..... 

... She bases her objection on the letter she received from the Colorado Catholic Conference, an organization with which she had no prior affiliation and has no current affiliation.... The letter is available for download from the internet from anyone who seeks it....

DOJ Announces Outreach Programs on RLUIPA

In a press release last Friday, the Justice Department announced that to mark the 23rd anniversary of the Religious Land Use and Institutionalized Persons Act, it will hold a series of outreach events to highlight the Department's enforcement efforts, saying in part:

The department’s first RLUIPA outreach event will take place at Seton Hall Law School in Newark, New Jersey, on Oct. 30. The event will include remarks from officials with the Justice Department’s Civil Rights Division, the U.S. Attorney’s Office for the District of New Jersey, religious leaders in New Jersey whose organizations have benefited from RLUIPA’s protections and attorneys who have experience litigating RLUIPA cases. The department will host additional events across the country in the coming months, including in California and Michigan.

The Department has also posted updated material about RLUIPA, including information on identifying and reporting violations.

President Sends Yom Kippur Greetings

The White House today posted a Statement from President Biden (full text) sending best wishes for Yom Kippur to Jewish communities in the United States, Israel and around the world.  The Statement says in part:

The blessing of Yom Kippur is that it is not just a day of reflection, repentance, and reverence – but a day of transformation, forgiveness, and hope. God invites us to write a new chapter in the story of our lives, and in the life of our nation. As the High Holidays conclude, let us all summon the courage to make the changes required to bridge the gap between the world we see and the world we seek.

Yom Kippur begins at sundown this evening. 

Recent Articles of Interest

From SSRN:

• Rabiat Akande & Faisal Bhabha, Insulating the Church: Ethiopian Orthodox Church of Canada v. Aga and the Suppression of Public Law in the Construction of Religious Communities, (Osgoode Legal Studies Research Paper Forthcoming, (2023) 108 SCLR (2d) 191 - 212).
• Rabiat Akande, An Imperial History of Race-Religion in International Law, (American Journal of International Law Forthcoming).
• Rabiat Akande, Centring the Black Muslimah: Interrogating Gendered, Anti-Black Islamophobia, (Forthcoming in Systemic Islamophobia in Canada : a Research Agenda. Edited by Anver M. Emon, University of Toronto Press, 2023).
• Nasrin Sultana, Women's Property and Inheritance Rights: Application of Laws from the Perspective of Two Major Religions in Bangladesh, (Social Science & Humanities Open (2023).
• Tejaswini Kaushal, Position Of Women In Indian Society In Light Of Divorce And Allied Laws: A Critical Discourse (September 30, 2022).
• Rabiat Akande, The Construction of Minorities: Self-Determination and the Legal Politics of Religious Difference in Late Northern Nigeria, circa 1949-1960, (Forthcoming, in Religion, Race and Democracy in Africa, University of Virginia Press (under review)).
• Sarah Craig, et. al., European Union Developments in Equality and Human Rights: The Impact of Brexit on the Divergence of Rights and Best Practice on the Island of Ireland, (Equality Commission for Northern Ireland and the Irish Human Rights and Equality Commission, 2022).
• Scott Skinner-Thompson, Trans Animus, (Boston College Law Review, Forthcoming).
• Helen Flannery & Brian Mittendorf, Charitable Objectives or Donor Interests? What Sponsor Language Reveals about Donor-Advised Fund Priorities and Resource Flows, (September 7, 2023).

From SmartCILP:

• Lydia E. Lavelle, Freedom of Speech: Freedom to Creatively Discriminate?, 29 Cardozo Journal of Equal Rights and Social Justice 69-110 (2022).
• Shlomo Pill & Ariel J. Liberman, Roadmap to Reconciliation II: Ruminations on the Need for Integrity in Intellectual Interfaith Engagement, 38 Touro Law Review 847-870 (2022).

Expanded Protection of Utah Lands Did Not Violate Establishment Clause

In Huck v. United States, (D UT, Sept. 21, 2023), a Utah federal district court rejected Establishment Clause, equal protection, due process and other challenges to Congress' 2019 designation of certain public lands in Utah as wilderness areas. The designation resulted in the lands being subject to more stringent use restrictions, including a ban on motor vehicles. Plaintiffs alleged that the designation was done to support Earth-religions and their beliefs regarding the ‘sacredness’ of public lands, in violation of the Establishment Clause. The court said in part:

 Given the recency of the Kennedy v. Bremerton School District decision, there is limited case law interpreting and applying the Supreme Court’s new [Establishment Clause] standard....

Recognizing these are relatively unchartered waters, the court considers Plaintiffs’ challenge with an eye toward the historical practice and understanding of the Establishment Clause and federal public lands management. While the concept of designated wilderness areas and motor vehicles might have seemed outlandish to the Founding Fathers, there is substantial legal authority supporting the federal government’s historically broad authority to designate public lands and restrict the public’s access to them. These actions, without more, do not raise the specter of government coercion of religious practices or observances....

Similarly, Plaintiffs have not plausibly alleged BLM’s motor vehicle restrictions violate “governmental neutrality between religion and religion, and between religion and nonreligion.”

The court also rejected plaintiffs' equal protection claim, saying in part:

Though Plaintiffs speculate that “[t]he BLM (as well as other . . . agencies) [conspired] with Earth-religionists [to] . . . deprive the aged, disabled or handicapped . . . from being able to access and travel upon many of the public lands,” these conclusory allegations—or speculations—fall short of satisfying Plaintiffs’ burden of alleging that the challenged actions were driven by discriminatory intent. On the contrary, Plaintiffs stress that the Dingell Act and motor vehicle restrictions were the result of the Earth-religionists’ efforts to “preserve and protect ‘Gaia’ or ‘Mother Earth,’” rather than an attempt to hinder the elderly or disabled.