Recent Articles of Interest

From SSRN:

• Imran A. Nyazee, The Probable Islamic State of the Future, (October 21, 2023).
• Mark Satta, 303 Creative v. Elenis, Groff v. DeJoy and the Difference a Sentence Can Make, (The Canopy Forum, 2023).
• Rafal Mańko, Exceptio Popularis: Resisting Illiberal Legality, (forthcoming in "Law, Populism and the Political in Central and Eastern Europe", edited by Rafał Mańko et al., Birkbeck Law Press (Routledge), 2024).
• Andrew M. Koppelman, Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment, (Wayne Law Review, Forthcoming).
• Anne Marie Lofaso, Does Title VII Prohibit Discrimination in Employment-Transfer Decisions Only if They Cause Materially Significant Disadvantages for Employees?, ( PREVIEW of United States Supreme Court Cases, Vol. 52, Issue 3 (2023)).
• Erika Bachiochi & Rachel Morrison, Dobbs, Equality and the Contested Meaning of Women's Rights, (Texas Review of Law and Politics (Fall 2024), Forthcoming).
• Ben Charoenwong, Shariah-Compliant Investing in the Machine Age: Equity Classifications with Machine Learning, (September 2021).

From SmartCILP:

• Richard P. Hiskes, The Image of a Lesser God: Imago Dei and the Human Rights of Children, [Abstract], 45 Human Rights Quarterly 513-532 (2023).

Court Disqualifies Proposed Nevada Reproductive Freedom Amendment From 2024 Ballot

In Washington v. Aguilar, (NV Dist. Ct., Nov. 21, 2023), a Nevada state trial court held that an Initiative Petition proposing a Reproductive Freedom Constitutional Amendment could not be placed on the 2024 ballot. The court held that the initiative proposal violates the single subject rule, contains a misleading description of the Amendment's effect and contains an unfunded mandate.  The court said in part:

This Court agrees with Plaintiffs that the Petition embraces a multitude of subjects that amount to logrolling. Subsection 1, alone, embraces the following subjects: prenatal care, childbirth, postpartum care, birth control, vasectomy, tubal ligation, abortion, abortion care, management of a miscarriage, and infertility care. Subsection 1 purportedly creates a “fundamental right to reproductive freedom,” but there is no limiting language in that section to circumscribe that right such that the section embraces a single and articulable subject....

The court found the description of the Amendment misleading because "it fails to mention that the law will bar the State from prosecuting, fining, or regulating any miscarriage or stillbirth"; it fails to mention that a medical provider can order a late term abortion to protect the pregnant person's health.; and it fails to explain that it affects equality and equal protection.

Finally, the court found that the proposed Amendment creates an unfunded mandate because a Panel or Board would need to be created to determine whether a healthcare provider acted within the standard of care.

Nevada Independent reports on the decision.

Inclusion of "Caste" In Antidiscrimination Policy Does Not Violate Establishment Clause

In Kumar v. Koester, (CD CA, Nov. 21, 2023, a California federal district court rejected an Establishment Clause challenge to the inclusion of "caste" in California State University's Discrimination, Harassment and Retaliation Policy. The Policy includes in its anti-discrimination ban a prohibition on discrimination based on "Race or Ethnicity (including color, caste, or ancestry)". Plaintiffs-- two Hindu professors-- contend that the Policy defines Hinduism as including a caste system and amounts to government disapproval of Hinduism.  In rejecting these contentions, the court said in part:

Plaintiffs argue that the CFA [California Faculty Association] and CSSA [California State Student Association] Resolutions demonstrate anti-Hindu sentiments. And because Defendant considered its stakeholders' input when amending the Policy, Defendant, in turn, expressed disapproval of Hinduism when it included the word "caste" in the Policy.

Plaintiffs' argument fails for two reasons. First, Plaintiffs have not demonstrated that CFA or CSSA speak for Defendant.... Plaintiffs do not offer any evidence that the Workgroup inappropriately considered the two Resolutions amongst the large amount of feedback it received from a wide array of CSU stakeholders....

Second, Plaintiffs' argument fails because the resolutions do not express anti-Hindu sentiments. To be sine, the Resolutions clearly denounce caste discrimination that occurs in South Asian societies and CFA's resolution explicitly references the presence of caste discrimination in "the Hindu religion."... But CFA's resolution does not link caste discrimination to Hinduism exclusively.... [Its] description of "caste" recognizes caste discrimination as a social ill that permeates South Asian culture and society....

Just as Plaintiffs fail to show that the Policy disapproves of Hinduism, they also fail to demonstrate that the Policy defines Hindu doctrines.

The court also dismissed plaintiffs' due process challenges for lack of standing. 

President Biden Issues 2023 Thanksgiving Day Proclamation

Yesterday President Biden issued a Proclamation (full text) designating today as a National Day of Thanksgiving. The Proclamation reads in part:

We are truly a good Nation because we are a good people — the First Lady and I see it every time we travel the country because we meet so many incredible people doing the most extraordinary things.  We have met with service members, veterans, and their families, who have selflessly served and sacrificed for our country.  We have witnessed the resolve of firefighters, police officers, and first responders, who risk their lives every day to protect us.  We have seen the best of our character in the doctors, nurses, scientists, public servants, union workers, and teachers, who ensure everyone is taken care of and no one is left behind.  We have seen all the possibilities this Nation holds in the mothers, fathers, and caregivers, who work hard to build a future worthy of their children’s greatest dreams, and in young people across the country, who are the most talented, engaged, and educated generation in history.

This Thanksgiving we are grateful for our Nation and the incredible soul of America.  May we all remember that we are the United States of America — there is nothing beyond our capacity if we do it together.

Appeals Court Upholds Denial of Unemployment Benefits To Health Care Worker Who Was Denied Religious Exemption From Vaccine Mandate

In Cyriaque v. Director- Ohio Department of Job and Family Services, (OH App., Nov. 22, 2023), an Ohio state appellate court upheld the denial of unemployment benefits to a clinical trainer at a community health center who was denied a religious exemption from a federal Covid vaccine mandate.  Her employment was terminated when she continued to refuse the vaccine.  In upholding the denial of benefits, the appeals court said in part:

It was, of course, the hearing officer’s province to assess the credibility of Cyriaque’s assertion that the exemption request was based upon her sincere religious opposition to the COVID-19 vaccines. In coming to this decisive determination, the hearing officer was free to believe all, some, or none of Cyriaque’s testimony. As noted, Cyriaque’s exemption statement submitted to Community Health did not assert that her religious opposition to the COVID-19 vaccines was based upon the use of aborted fetal cells in the development of the vaccines. In contrast, Cyriaque’s hearing testimony and other evidence exclusively focused upon the use of aborted fetal cells being used in the development of the vaccines as the basis for the requested exemption. This contrast between Cyriaque’s statement provided to Community Health and her hearing testimony provided support for the hearing officer’s finding that Cyriaque’s exemption request was not premised upon her sincere religious opposition to the COVID-19 vaccines. Given this, we cannot conclude the commission’s decision was unlawful because it violated Cyriaque’s rights under the Free Exercise Clause, that the decision was unreasonable, or that the decision was against the manifest weight of the evidence.

Oklahoma Supreme Court Temporarily Enjoins 3 Laws Restricting Abortions

In Oklahoma Call for Reproductive Justice v. Drummond, (OK Sup. Ct, Nov. 14, 2023), the Oklahoma Supreme Court in a 5-4 decision directed the trial court to issue a temporary injunction preventing enforcement of three statutes that impose regulatory requirements on abortions while challenges to the laws proceed. The court's majority opinion says in part:

[In Oklahoma Call for Reproductive Justice v. Drummond I] we held that the Oklahoma Constitution protects a limited right to an abortion, i.e., one that creates an inherent right of the mother to terminate a pregnancy when necessary to preserve her life.... This ... was defined to mean: a woman has an inherent right to choose to terminate her pregnancy if, at any point in the pregnancy, the woman's physician has determined to a reasonable degree of medical certainty or probability that the continuation of the pregnancy will endanger the woman's life due to the pregnancy itself or due to a medical condition that the woman is either currently suffering from or likely to suffer from during the pregnancy.... We made no ruling on whether the Oklahoma Constitution provides a right to an elective termination of a pregnancy....

H.B. 1904 provides a new requirement that a physician who performs an abortion must be board-certified in obstetrics and gynecology. S.B. 779 requires a physician who is certified to provide an abortion-inducing drug either to have admitting privileges at a hospital in the county or contiguous to the county where the abortion-inducing drug was administered or to have a written agreement with an associated physician in such location. S.B. 778 requires an Ultrasound be performed at least 72 hours prior to providing an abortion-inducing drug, but it does make an exception if such requirement would pose a greater risk of death or impairment.....

The clear weight of the evidence presented showed the apparent effect of the three Acts would place unnecessary burdens on the lawful termination of a pregnancy....

Maintaining the status quo would further the public interest of protecting a woman's right to terminate a pregnancy in order to preserve her life....

A concurring opinion and four dissenting opinions were filed. A dissent by Chief Justice Kane, joined by Justice Kuehn, says in part:

The constitutional analysis undertaken by the majority continues to omit the weighing of the rights and interests of the unborn. Any analysis of an abortion statute that proceeds under the proposition that the life of the unborn is unworthy of consideration is defective. In a separate concurring writing, my colleague makes the identical point as to the life of the mother. I completely agree with my colleague on this. However, the interests of the mother were the only interests considered by the majority- the rights of the unborn remain unheard.

AP reports on the decision.

Christian School Sues Vermont Challenging Sexual Orientation and Gender Identity Rules

Suit was filed yesterday in a Vermont federal district court by a Christian school seeking to participate in the state's Town Tuitioning and Dual Enrollment Programs as well as in Vermont Principals' Association athletic competitions. It has been precluded from doing so because of rules banning it from discriminating on the basis of sexual orientation or gender identity in order to participate. Two families whose children participate in athletics at the school are also plaintiffs. The complaint (full text) in Mid Vermont Christian School v. Bouchey, (D VT, filed 11/21.2023), alleges in part:

The State-through its Agency of Education ... and the Vermont Principal's Association ... requires religious schools like Mid Vermont Christian School ... to follow (and affirm compliance with) laws, rules, and policies that prevent those schools from operating consistently with their religious beliefs about sexuality and gender.

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

No Damages Under Illinois RFRA for Wedding Cancelled Over Covid Vaccine Mandate

In Schneider v. City of Chicago, (ND IL, Nov. 20, 2023), an Illinois federal district court dismissed a damage action brought under the Illinois Religious Freedom Restoration Act by a couple who cancelled their wedding at the Drake Hotel, losing their deposit, when the city of Chicago required proof of COVID vaccination for gatherings in large areas such as hotels and banquet halls. The couple had religious objections to receiving vaccines. The court held that because the city's Health Order included a religious exemption, plaintiffs had not alleged that the Order substantially burdened their religious practice or beliefs.  The couple contended that there was no ascertainable way for them to obtain a religious exemption from the city. The court responded:

[P]laintiffs point to nothing in their complaint or the health order itself to support a reasonable inference that the City of Chicago would not provide a religious exemption or that religious exemptions were impossible to receive. Their notion of impossibility amounts to an unreasonable interpretation of the Order—that the absence of more specific directions on how to obtain an exemption meant that no exemption was obtainable....

[A]fter two calls to the Corporation Counsel went unanswered, the plaintiffs summarily concluded that obtaining a religious exemption in time for their February 2022 wedding was “impossible.”... [T]his conclusion is not entitled to the assumption of truth....

Even if plaintiffs had been able to state a claim for violation of the Illinois Religious Freedom Restoration Act, their complaint only requests money damages and those damages are prohibited by the Illinois Tort Immunity Act.... . It is likely that the Illinois Supreme Court would hold that the ITIA protects local governments from damages claims under IRFRA.

Statutory Changes Allow Suit for Sex Abuse Against Jehovah's Witnesses Congregations

In C.P. v. Governing Body of Jehovah's Witnesses, (NJ App., Nov. 15, 2023), a New Jersey appellate court affirmed a trial court's denial of summary judgement to Jehovah's Witnesses congregations and governing bodies. Plaintiff C.P. was sexually abused by Charles, her grandfather.  During the years the abuse was occurring, Charles also served as an elder at two Jehovah's Witnesses congregations.  In a 1994 lawsuit, plaintiff was awarded over $2.2 million in damages from her grandfather. Subsequently New Jersey's Charitable Immunity Act and statute of limitations were amended so that plaintiff could now sue the congregations involved, and this suit followed.  The court explained:

According to plaintiff, defendants knew Charles had engaged in sexual conduct with at least three minors—including herself—but did not discipline him and negligently retained him as an elder—a spiritual leader and mentor. Plaintiff claims defendants knew incidents of sexual abuse by their agents was prevalent within their organizations but nevertheless protected Charles and other sexual abusers from criminal prosecution through "mandated secrecy" policies and practices. Plaintiff also alleges defendants owed a "special duty" to protect her from her grandfather's sexual criminal acts because they held themselves out as "being able to provide a safe environment" for children. Ultimately, plaintiff contends Charles was disfellowshipped—excommunicated as a result of reports about and his admission to sexual misconduct, and therefore, defendants engaged in willful, wanton, or grossly negligent conduct.

Defendants claimed that the "entire controversy doctrine" and judicial estoppel bar the present suit. The court disagreed, saying in part:

As the trial court found, the two litigations involve separate claims. The 1994 action sought damages for harm directly inflicted by Charles; the 2021 action seeks damages from defendants for claims of negligent hiring and retention, alleging defendants knew and allowed Charles—a known child abuser—to serve as an elder in their church, exposing children to sexual molestation.

2nd Circuit Remands Free Exercise Claim of Inmate Who Could Not Attend Religious Services

In Wiggins v. Griffin, (2d Cir., Nov. 20, 2023), the U.S. 2nd Circuit Court of Appeals vacated and remanded a New York federal district court's dismissal of a suit against prison officials by a Baptist inmate who contends that his exercise of religion was burdened when there was a delay of over five months in updating the call-out list for Protestant religious services after plaintiff was moved to a new cellblock. Plaintiff was unable to attend religious services until the list was updated. Because one of the 3 judges on the appeals panel died after argument, the case was decided by a 2-judge panel. The court held that it did not need to decide whether plaintiff needed to show a "substantial burden" or just a "burden" on his free exercise rights since there was evidence from which a jury could find a substantial burden and defendants conceded that a substantial burden was present.  In a concurring opinion, Judge Menashi said in part:

In an appropriate case, we should hold that a prisoner alleging a violation of the Free Exercise Clause under § 1983 need only show a burden on sincerely held religious beliefs—not a “substantial” burden that involves showing that the beliefs are “central.” Three decades is too long for federal judges to be telling litigants which of their religious beliefs are “unimportant.”

The court remanded the case for a jury determination of whether defendants had qualified immunity, saying in part:

[A] jury may find that one or more Defendants purposefully ignored or delayed processing Wiggins’s requests, seeking to deny his participation in communal worship, or may have been deliberately indifferent to Wiggins’s requests. In such a scenario, they would have violated Wiggins’s clearly established right....  But, on the other hand, a Defendant may have simply missed Wiggins’s requests or failed to take extra steps to ensure they were processed. If so, qualified immunity may be appropriate.

The court went on to decide the state of mind necessary to show a violation of the 1st Amendment's free exercise clause: 

The First Amendment‘s command that government not “prohibit” the free exercise of religion... “connotes a conscious act, rather than a merely negligent one,”.... Given this understanding of the First Amendment, isolated acts of negligence cannot violate an individual’s free exercise of religion in this context....

Although mere negligence cannot support a First Amendment free exercise claim, we have previously held that deliberate indifference “clearly suffices.”...

With these principles to guide us, we affirm the district court’s dismissal of the claim against [prison Superintendent] Griffin. Wiggins sent Griffin two letters. Although Griffin left one letter unanswered, he quickly acted upon the second. ... [T]his evidence ... establishes (at most) that Griffin acted negligently in response to the first letter. Such a showing is insufficient. Whether the record suffices to permit a finding that any of the remaining [three] defendants were deliberately indifferent poses a closer question. Instead of single acts of negligence, the record contains sufficient evidence to allow a jury to conclude that one or more of the remaining defendants repeatedly failed to redress Wiggins’s exclusion from the call-out list....

President Issues Statement On Transgender Day of Remembrance

The White House today issued a Statement from President Joe Biden on Transgender Day of Remembrance (full text). The President said in part:

There is no place for hate in America and no one should be discriminated against simply for being themselves. Today, on Transgender Day of Remembrance we are reminded that there is more to do meet that promise, as we grieve the 26 transgender Americans whose lives were taken this year. While each one of these deaths is a tragedy – the true toll of those victimized is likely even higher, with the majority of those targeted being women of color.

Recent Articles of Interest

From SSRN:

• Caleb Acker, The Torcaso-Masterpiece Rule "As Such", (October 16, 2023).
• Anthony Michael Kreis, Patterns of Panic, (Saint Louis University Law Journal (forthcoming 2024) (Childress Lecture Symposium).
• Nausica Palazzo, Fedotova: Dawn of a New Era for European LGBTQ Families?. (Maastricht Journal of European and Comparative Law, Volume 30, Issue 2, April 2023, pp. 216-228).
• Maryam Jamshidi, The War on Terror and Vigilante Federalism, (Cornell Law Review, Vol. 108, No. 170, 2023).
• Paulo Roberto Arvate, Lisa Lenz & Sergio Mittlaender, Strategic Discrimination and the Emergence of Systematic Exclusion, (Empirical Economics, Forthcoming).
• Juan Carlos Riofrio Martinez-Villalba, Tom Angier’s Natural Law vs. the Natural Law Formula, (October 15, 2023).

From SmartCILP:

• Tamir Moustafa, Book Review. Islamic Law, Secularism, and the Modern State: Recasting a Scholarly Debate. Recasting Islamic Law: Religion and the Nation State in Egyptian Constitution Making, by Rachel M. Scott, 48 Law & Social Inquiry 713-717 (2023).
• Elise McLaren Villers, The Divine Right of Judges: How Christian Thought Shaped the American Judiciary, 54 St. Mary's Law Journal 609-628 (2023).

Michigan Agency Charges Hair Salon with Gender Identity Discrimination

The Michigan Department of Civil Rights this week filed a charge of sex (gender identity) discrimination on behalf of three claimants with the Michigan Civil Rights Commission. The complaint (full text) in Michigan Department of Civil Rights v. Studio 8 Hair Lab, LLC, (MI Civil Rts. Commn, filed 11/15/2023), says that a Traverse City hair salon posted the following on its business Facebook page:

If a human identifies as anything other than a man/woman please seek services at a local pet groomer. You are not welcome at this salon. Period. Should you request to have a particular pronoun used Please note we may simply refer to you as hey you,,,, This small business has a right to refuse services. We are not bound to any oaths as relators are regarding discrimination.

Follow-up postings included the statement: "There are 2 genders; anything more is a mental health issue." The complaint contends that this posting violates the public accommodation provisions of the Elliott-Larsen Civil Rights Act. The Department of Civil Rights issued a press release announcing the filing of the discrimination charge.

Church Sues Challenging Fee for Water Connection

Suit was filed this week in a Texas state trial court by a church challenging a Houston-area utility district's insistence that the church pay a capital recovery fee of $83,780 rather than the actual cost of $24,900 to connect its new office building and auditorium to the district's water system. The district insists that the added fee "prevents taxpayers from bearing the burden of paying taxes on the bonds issued to construct water, sewer, and drainage facilities that also serve the Church." The complaint (full text) in Grace Community Church- The Woodlands, Inc. v. Southern Montgomery County Municipal Utility District, (TX Dist. Ct., filed 11/15/2023), alleges that the fee in excess of the actual cost of the connection amounts to an unlawful tax on a tax-exempt organization.  It also contends that the fee violates the Texas Religious Freedom Restoration Act and the First Amendment's free exercise clause. First Liberty issued a press release announcing the filing of the lawsuit.

Today Is 30th Anniversary of RFRA

Today is the 30th anniversary of President Bill Clinton's signing of the Religious Freedom Restoration Act (Public Law 103-141). In his Remarks on Signing the Bill (full text), the President said in part:

It is interesting to note ... what a broad coalition of Americans came together to make this bill a reality; ... that coalition produced a 97-to-3 vote in the United States Senate and a bill that had such broad support it was adopted on a voice vote in the House. I’m told that, as many of the people in the coalition worked together across ideological and religious lines, some new friendships were formed and some new trust was established, which shows, I suppose, that the power of God is such that even in the legislative process miracles can happen. [Laughter]

We all have a shared desire here to protect perhaps the most precious of all American liberties, religious freedom. Usually the signing of legislation by a President is a ministerial act, often a quiet ending to a turbulent legislative process. Today this event assumes a more majestic quality because of our ability together to affirm the historic role that people of faith have played in the history of this country and the constitutional protections those who profess and express their faith have always demanded and cherished.

Biden Nominates First Muslim Federal Appeals Court Judge

The White House yesterday announced several nominations that President Biden intends to make to federal circuit and district courts. Among the nominations was that of Adeel A. Mangi to the U.S. 3rd Circuit Court of Appeals.  As reported by NBC News, if confirmed by the Senate, Mangi will be the first Muslim American to serve on a federal appeals court.

Court Upholds Oregon's Rules for Approving Adoptive Parents Over Free Exercise and Free Speech Challenges

In Bates v. Pakseresht, (D OR, Nov. 14, 2023), an Oregon federal district court, in a 53-page opinion, rejected plaintiff's challenge to the state's denial of her application to be certified to adopt children through the Oregon Department of Human Services.  Plaintiff was denied certification because, consistent with her Christian religious beliefs, she would not agree to support an adoptive child's sexual orientation, gender identity, or gender expression. Rejecting plaintiff's free exercise claim, the court said in part:

A willingness to take in an LGBTQ+ child, but disavow their identity, cannot by analogy be compared to a business owner's willingness to provide some services, but not others, to LGBTQ+ individuals. To make such a claim demonstrates a lack of understanding of the importance of providing a child with the holistic support and care required to produce well-rounded and confident adults....

The court also rejected plaintiff's free speech claim, saying in part:

[T]he issue in this case is not that plaintiff is seeking to provide religious instruction to her child. She is seeking to provide religious instruction to a child in the care and custody of the state. She does not possess the same rights as a parent in this situation because the state is the de facto parent. Although plaintiff's ultimate goal is adoption, she is seeking a certification that grants her only the opportunity to house and care for a child under the state's umbrella of protection.

White House Summarizes Recent Initiatives to Combat Antisemitism and Islamophobia at Schools and Colleges

The White House yesterday issued a Fact Sheet: Biden-⁠Harris Administration Takes Action to Address Alarming Rise of Reported Antisemitic and Islamophobic Events at Schools and on College Campuses.  It announces recent initiatives and updated resources from the Department of Justice, the Department of Education, the Department of Agriculture, and the Department of Homeland Security to counter the increase in antisemitic and Islamophobic incidents at schools and colleges since the October 7 Hamas terrorist attacks in Israel.

New Jersey Will Allow Candidates To File With Secular Alternative To Oath of Allegiance

As previously reported, in early October a suit was filed in a New Jersey federal district court challenging the New Jersey requirement that candidates filing to run for public office sign an Oath of Allegiance that ends with the phrase "so help me God." In response to this lawsuit, on Oct. 24 the Acting Director of the New Jersey Division of Elections circulated a Memo (full text) to County Clerks stating that now candidates have the option of filing a solemn affirmation or declaration in lieu of an oath, and when that option is chosen, the words "so help me God" are to be omitted. This led the Freedom from Religion Foundation which is counsel for plaintiffs in the October lawsuit to file for voluntary dismissal of the suit.  New Jersey Monitor reports on these developments.

11th Circuit: No Bivens Remedy for Free Exercise Infringement by Government Contractor or Its Employees

 In Walker v. Dismas Charities, Inc., (11th Cir., Nov. 14,2023), the U.S. 11th Circuit Court of Appeals rejected Free Exercise and 8th Amendment claims by an inmate serving part of his sentence for conspiracy to commit arson in home confinement. Relying on the Supreme Court's decision in Egbert v. Boule, the court concluded that there is no Bivens implied damages remedy under the Constitution in a suit against a corporate entity that has contracted with the government to supervise federal prisoners serving their federal criminal sentences in home detention....  The court also rejected the claim that a Bivens remedy lies against employees of the government contractor, saying in part:

Walker’s complaint seeks to extend the implied remedy against federal officials first recognized in Bivens to a new class of defendants: individual employees of government contractors. On top of that, he asks us to recognize an implied cause of action under the Constitution to claims brought by a person in home confinement as part of a federal criminal sentence alleging violations of his right to free exercise of religion under the First Amendment, his right to procedural due process under the Fifth Amendment, and his right to be free from cruel and unusual punishment under the Eighth Amendment. Because “a court is not undoubtedly better positioned than Congress to create” such a damages remedy, we conclude that Walker does not have an implied cause of action under the Constitution for his constitutional claims....

Michigan Passes Institutional Desecration Ban

 Last week, the Michigan legislature gave final passage to HB 4476 (full text) (legislative history) which creates the crime of "institutional desecration." A person is guilty of the crime if the person:

maliciously and intentionally destroys, damages, defaces, or vandalizes, or makes a true threat to destroy, damage, deface, or vandalize ... because of the actual or perceived race, color, religion, sex, sexual orientation, gender identity or expression, physical or mental disability, age, ethnicity, or national origin of another individual or group of individuals....

any religious building, educational institution, library, museum, community center, campground, cemetery, business or charitable institution.  The bill now goes to Governor Whitmer for her signature. Michigan Radio reports on the bill's passage.

SCOTUS' New Ethics Code Includes Guidance on Involvement with Religious Organizations

Yesterday, the U.S. Supreme Court announced the promulgation of a Code of Conduct (full text) for Supreme Court Justices. Several provisions in the Code give guidance on a Justice's involvement with religious and other organizations. The new Code provides in part:

Canon 2 (C): A Justice should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin....

Canon 3(B): ... A Justice should disqualify himself or herself in a proceeding... [when] The Justice knows that the Justice, individually or as a fiduciary, or the Justice’s spouse or minor child residing in the Justice’s household, has a financial interest in the subject matter in controversy.... An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization....

Canon 4(A): A Justice may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and government activities.... However, a Justice should not participate in extrajudicial activities that detract from the dignity of the Justice’s office, interfere with the performance of the Justice’s official duties, reflect adversely on the Justice’s impartiality, lead to frequent disqualification, or violate the limitations set forth below....

In deciding whether to speak or appear before any group, a Justice should consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public. Except in unusual circumstances, no such appearance will be created when a Justice speaks to a group of students or any other group associated with an educational institution, a bar group, a religious group, or a non-partisan scholarly or cultural group....

Canon 4(B): A Justice may participate in and serve as an officer, director, trustee, or nonlegal advisor of a nonprofit civic, charitable, educational, religious, or social organization, subject to the following limitations:

(1) A Justice should not serve if it is likely that the organization will either be engaged in proceedings that would ordinarily come before the Justice or be regularly engaged in adversary proceedings in any court.

(2) A Justice should not give investment advice to such an organization but may serve on its board of directors or trustees even though it has the responsibility for approving investment ....

Canon 4(C): A Justice may assist nonprofit law-related, civic, charitable, educational, religious, or social organizations in planning fundraising activities and may be listed as an officer, director, or trustee. Use of a Justice’s name, position in the organization, and judicial designation on an organization’s letter head, including when used for fundraising or soliciting members, is permissible if comparable information and designations are listed for others. Otherwise, a Justice should not personally participate in fundraising activities....

AP reports on the Court's new ethics code.

Recent Articles and Books of Interest

From SSRN:

• Samuel J. Levine, Law and Redemption: Expounding and Expanding Robert Cover’s Nomos and Narrative, (34 Yale J.L. & Human. 253 (2023)).

From SmartCILP:

• Steven J. Heyman, Transforming Natural Religion: An Essay on Religious Liberty and the Constitution, 48 BYU Law Review 1447-1520 (2023).
• Antony Barone Kolenc, A Juror's Religious Freedom Bill of Rights, 48 BYU Law Review 1521-1580 (2023).
• Martha Minow, Walls or Bridges: Law's Role in Conflicts over Religion and Equal Treatment, 48 BYU Law Review 1581-1618 (2023).

New Books:

• Caroline K. Roberts, Freedom of Religion or Belief in the European Convention on Human Rights: A Reappraisal, (Cambridge University Press, Nov. 2023).
• Judith Hahn, The Sacraments of the Law and the Law of the Sacraments, (Cambridge University Press, Nov. 2023).
• David Carroll Cochran, The Catholic Case against War-- A Brief Guide, (Notre Dame University Press, March 2024).
• A.G. Roeber, Orthodox Christians and the Rights Revolution in America, (Fordham University Press, January 2024).

Court Enjoins Idaho's Ban on Aiding a Minor in Obtaining an Abortion

In Matsumoto v, Labrador I, (D ID, Nov. 8, 2023), an Idaho federal district court issued a preliminary injunction against enforcing Idaho Code Section 18-623 which provides in part:

An adult who, with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion ... or obtains an abortion-inducing drug for the pregnant minor to use for an abortion by recruiting, harboring, or transporting the pregnant minor within this state commits the crime of abortion trafficking.

The court said in part:

The Court finds Idaho Code Section 18-623 is a content-based regulation of protected speech and expression. The statute plainly regulates expression based on content by restricting adults from engaging in activities that advocate, assist, and communicate information and support to pregnant minors about legal abortion options....

Here, Idaho Code Section 18-623 fails to provide fair notice or ascertainable standard of what is and what is not abortion trafficking. The terms “recruiting, harboring, or transporting” are undefined, overbroad, and vague, making it impossible for a reasonable person to distinguish between permissible and impermissible activities....

In Matsumoto v. Labrador II, (D ID, Nov. 8, 2023), the same court refused to dismiss plaintiffs' First Amendment speech and 14th Amendment vagueness challenges as well as their right to interstate travel claims. However the court did dismiss plaintiffs right to intrastate travel challenge.

Reuters reports on the preliminary injunction.

Anti-Abortion Legislators in Ohio Will Seek to Remove Jurisdiction of Courts to Interpret New Constitutional Amendment

 As previously reported, abortion opponents in Ohio have taken several approaches in their unsuccessful attempt to prevent the adoption of a reproductive rights amendment to the Ohio Constitution. First they unsuccessfully attempted to amend the state constitution to increase the percentage of voters needed to adopt a constitutional amendment.  Then the state Ballot board adopted a description of the proposed amendment that was seen as painting the amendment in a less favorable light.  Nevertheless, earlier this week voters adopted the amendment by a vote of 56.6% to 43.4%.  Several legislators now say they will attempt to remove jurisdiction from Ohio courts to interpret the new amendment.  In a November 9 press release from the state legislature's Republican Newsroom, Republican legislators said in part:

“Foreign billionaires don't get to make Ohio laws,” said Jennifer Gross (R-West Chester), pointing to millions from billionaires outside America that helped fund Issue 1. Gross added, “This is foreign election interference, and it will not stand.”...

Representative Beth Lear (R-Galena) stated, “No amendment can overturn the God given rights with which we were born.”

To prevent mischief by pro-abortion courts with Issue 1, Ohio legislators will consider removing jurisdiction from the judiciary over this ambiguous ballot initiative. The Ohio legislature alone will consider what, if any, modifications to make to existing laws based on public hearings and input from legal experts on both sides.

Pastor's Breach of Contract Suit Dismissed on Ecclesiastical Abstention Grounds

In Craver v. Faith Lutheran Church, (TX App., Nov. 8, 2023), a Texas state appeals court held that the ecclesiastical abstention doctrine requires dismissal of a pastor's suit for breach of contract and fraudulent inducement brought against the church that was his former employer. After the church's executive board received complaints against the pastor, the church entered a severance agreement with the pastor. The pastor contends that the agreement included an assurance that the allegations against him would not be spread throughout the congregation. The court said in part:

Craver argues his case presents a “run-of-the mill” civil dispute, which can be resolved by application of neutral principles of law and without reference to religious matters. He contends: “While Faith Lutheran’s decision to terminate [him] is generally unreviewable, [his] claims have nothing to do with that and are instead about Faith Lutheran’s obligations under a secular, civil contract not to make certain statements.”

We disagree that church matters can be so cleanly and completely severed. Instead, the substance and nature of Craver’s fraudulent inducement and breach of contract claims are “inextricably intertwined” with matters of Faith Lutheran’s church governance.... [B]oth claims rely on circumstances surrounding contract formation and it is those circumstances which implicate the ecclesiastical abstention doctrine...

[W]e cannot untwine recommendations Church executives made in the course of church governance from the allegedly fraudulent representations that form the basis of Craver’s lawsuit.

Exclusion of Jurors Who Have Conscientious Objection To Death Penalty Does Not Violate Free Exercise Clause

 In State of Louisiana v. Neveaux, (LA App., Nov. 8, 2023), a Louisiana state appeals court rejected a free exercise challenge to a provision in the Louisiana Code of Criminal Procedure that permits the prosecution in a capital case to challenge for cause a juror "who has conscientious scruples against the infliction of capital punishment" and makes it known that for this reason he would automatically vote against imposing capital punishment or that his beliefs would substantially impair him from making an impartial decision. The court, rejecting the contention that there must be a compelling state interest to support this provision concluded in part:

[W]e find that La. C.Cr.P. art. 798(2)(a) and (b) is neutral and generally applicable because (1) it does not focus on a particular religion or religion at all, and (2) it applies to anyone regardless of the source of his or her views on the death penalty.

Suit Challenges Michigan's Reproductive Freedom Amendment on Federal Constitutional Grounds

In November 2022, Michigan voters passed a state constitutional amendment providing a right to reproductive freedom. Yesterday a group of plaintiffs filed suit in a Michigan federal district court contending that the state constitutional amendment violates the 1st and 14th Amendments to the federal Constitution, as well as the Constitution's Guarantee Clause. Among the 16 plaintiffs is "Jane Roe, a fictitious name on behalf of preborn babies." The complaint (full text) in Right to Life of Michigan v. Whitmer, (WD MI, filed 11/8/2023), alleges in part:

By reason of Article I, § 28 of the Michigan Constitution ..., Defendants have deprived Plaintiffs, specifically including women, and in particular pregnant women; preborn human beings, including Jane Roe and similarly situated individuals; preborn human beings with disabilities; partially born human beings; and human beings born following a failed abortion of the equal protection of the law guaranteed under the Fourteenth Amendment....

 Article I, § 28 permits individuals, including public school officials, medical professionals, and others, to aid or assist a minor child with procuring an abortion, obtaining contraception, obtaining “gender reassignment” medication or procedures, and becoming sterilized without parental knowledge or consent and with impunity in violation of Plaintiffs’ parental rights protected by the Fourteenth Amendment.

... Article I, § 28 permits adults to engage in sexual acts with minors so long as the minor consents, thereby undermining the right of parents to direct the upbringing of their children in violation of Plaintiffs’ parental rights protected by the Fourteenth Amendment....

Article I, § 28 nullifies all statutory protection provided to physicians and other medical professionals ... who object to abortion, contraception, “gender reassignment” medication/procedures, sterilization, puberty blockers, and other harmful medical procedures related to “reproduction” on moral and religious grounds in violation of their sincerely held religious beliefs....

Article I, § 28 deprives preborn human beings, including Jane Roe and similarly situated individuals, preborn human beings with disabilities, partially born human beings, and human beings born following a failed abortion of the right to life and liberty without due process of law....

Article I, § 28, which was passed pursuant to the process of amending the Michigan Constitution, nullifies the legitimate authority of a coordinate branch of government, the Legislative Branch, by prohibiting it from regulating or governing in a broad area of the law (“reproduction”) that has historically been within its legitimate domain in violation of the Guarantee Clause of the United States Constitution....

Right To Life Michigan issued a press release announcing the filing of the lawsuit. Detroit News reports on the lawsuit.  [Thanks to Scott Mange and Thomas Rutledge for the lead.]

DOE Reminds Schools of Duty to Protect Against Antisemitic and Islamophobic Discrimination

The U.S. Department of Education's Assistant Secretary for Civil Rights issued a "Dear Colleague" letter on Tuesday in response to rising levels of antisemitic and Islamophobic incidents at schools and colleges since the October 7 Hamas attack on Israel. (Press release). The letter (full text) says in part:

I write to remind colleges, universities, and schools that receive federal financial assistance of their legal responsibility under Title VI of the Civil Rights Act of 1964 and its implementing regulations (Title VI) to provide all students a school environment free from discrimination based on race, color, or national origin, including shared ancestry or ethnic characteristics. It is your legal obligation under Title VI to address prohibited discrimination against students and others on your campus—including those who are or are perceived to be Jewish, Israeli, Muslim, Arab, or Palestinian—in the ways described in this letter....

Schools that receive federal financial assistance have a responsibility to address discrimination against Jewish, Muslim, Sikh, Hindu, Christian, and Buddhist students, or those of another religious group, when the discrimination involves racial, ethnic, or ancestral slurs or stereotypes; when the discrimination is based on a student’s skin color, physical features, or style of dress that reflects both ethnic and religious traditions; and when the discrimination is based on where a student came from or is perceived to have come from, including discrimination based on a student’s foreign accent; a student’s foreign name, including names commonly associated with particular shared ancestry or ethnic characteristics; or a student speaking a foreign language.

6th Circuit Rejects Equal Protection Challenge To Michigan Ban On Public Funds for Private and Religious Schools

In Hile v. State of Michigan, (6th Cir., Nov. 6, 2023), the U.S. 6th Circuit Court of Appeals held that an amendment placed in the Michigan Constitution in 1970 that prohibits public funds from being used to aid private or religious schools does not violate the equal protection rights of parents who cannot use Michigan Educational Savings Program to send their children to religious schools. Plaintiffs contended that the state constitutional provision was motivated by anti-Catholic bias and based their equal protection claim on the political process doctrine. As articulated by the court:

They claim that because of the amendment, religious persons and schools cannot lobby their state representatives for governmental aid or tuition help without first amending the state constitution, which they argue disadvantages them in the political process.

The court first expressed doubt about the continued viability of the political process doctrine, and particularly whether a political process claim can be based on religious discrimination.  The court went on to hold that regardless of that, a 2000 election in which voters reauthorized the 1970 Amendment purged the provision of any religious bias that was present in the 1970 vote.

Justice Murphy dissented, contending that plaintiffs' clam should be dismissed without prejudice for lack of plaintiffs' standing.

RFRA and Title VII Claims for Refusing Religious Exemption from Covid Vaccine Mandate Can Proceed

In Snyder v. Chicago Transit Authority, (ND IL,  Nov. 6, 2023), an Illinois federal district court allowed plaintiff, who was denied a religious exemption from his former employer's Covid vaccine mandate, to move ahead with his claims under Title VII and under the Illinois Religious Freedom Restoration Act. The court however dismissed seven other claims brought under a number of other statutory and regulatory provisions.

NY Court Rules That Parent Body Is Entitled to Possession of Hare Krishna Temple

Kelley v. Gupta, (Sup.Ct. Nassau Cty. NY, Oct. 25, 2023), involves a dispute between two factions of the Hare Krishna movement over control of a temple in Freeport, New York. In this decision a New York state trial court concluded that The Governing Body Commission of the International Society for Krishna Consciousness ("GBC") is the highest ecclesiastical authority in the Krishna movement, and upheld GBC's expulsion of defendant for engaging in religious practices that are contrary to the teachings of the religion. The court said in part:

GBC has established that ISKCON Global is a religion that operates under a hierarchical system, whereby local temples are subject to review and control by the GBC and its ascending order of authority.... The GBC has continued to pass laws and make rulings on various ISKCON Global issues including religious practices and the management of properties. Among these rulings were the Resolutions prohibiting ritvik theory as "a dangerous philosophical deviation," and the expulsion of those who practiced ritvikism, including the defendant and Mr. Garuda. Accordingly, complete deference must be afforded to the GBC's decision making authority in ecclesiastical matters, and any final decisions of the GBC in such matters are therefore binding on this Court....

The court concluded that trustees of ISKCON "are entitled to immediate possession of the Freeport Temple premises and property belonging to the Temple, including but not limited to deities...."

Ohioans Vote On Reproductive Rights Amendment

In Ohio today, voters are casting ballots on State Issue 1 that, if approved will add the following to the Ohio Constitution:

Article I, Section 22. The Right to Reproductive Freedom with Protections for Health and Safety

A. Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on:
1. contraception;
2. fertility treatment;
3. continuing one’s own pregnancy;
4. miscarriage care; and
5. abortion.

B. The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either:

1. An individual's voluntary exercise of this right or

2. A person or entity that assists an individual exercising this right,

unless the State demonstrates that it is using the least restrictive means to advance the individual's health in accordance with widely accepted and evidence-based standards of care.

However, abortion may be prohibited after fetal viability. But in no case may such an abortion be prohibited if in the professional judgment of the pregnant patient’s treating physician it is necessary to protect the pregnant patient’s life or health.

C. As used in this Section:

1. “Fetal viability” means “the point in a pregnancy when, in the professional judgment of the pregnant patient's treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures. This is determined on a case-by-case basis.”

2. “State” includes any governmental entity and any political subdivision.

D. This Section is self-executing.

Ballotpedia has additional information on the proposed amendment. Live election results will be available here.

UPDATE: With 84% of the precincts reporting, the measure has passed 55.6% to 44.4%.

LDS Church Sued Over Use of Tithed Funds

A class-action lawsuit was filed last week in a Utah federal district court against the Latter-Day Saints Church alleging fraud, unjust enrichment and breach of fiduciary duty in the handling of tithed funds and other contributions by the Church. The complaint (full text) in Chappell v. Corporation of the President of the Church of Jesis Christ of Latter-Day Saints, (D UT, filed 10/31/2023) alleges in part:

1. For decades, COP has used false pretenses to obtain donations. Rather than use these funds entrusted to it for charitable work, COP secreted donations away in Ensign in order to avoid public scrutiny and accountability to the donors, and instead used them for purposes never contemplated by donors and contrary to representations by COP....

3. For instance, COP maintains various philanthropies, including “Humanitarian Relief,” which provides “immediate emergency assistance to victims” of disasters. On its website, COP solicits donations to the Humanitarian Relief fund by stating that “One hundred percent of every dollar donated is used to help those in need without regard to race, religion, or ethnic origin.”

4. Despite these representations to donors, Plaintiffs understand based on public reports from third parties that COP deliberately hid that some, if not all, of these donations (including both tithes and donations made to a COP philanthropy) are permanently invested in accounts it never uses for any charitable work, so that every year, an enormous portion of the donations are never spent for these —or any— purposes.

Salt Lake Tribune reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Ecoraa Jahan, The Logistical Breakdown of Abortion Restrictions and Their Impact on Women’s Bodily Autonomy Rights (October 26, 2023).
• Fatima Idrees, Comparative Study: Mortgage Law under Transfer of Property Act, 1882 and Shariah Law, (October 13, 2020).
• Goran Šimić, War Crimes and Spirituality: To Prosecute or to Forgive and Reconcile, (Law and Safety 2023. No. 3 (90)).

From SmartCILP:

• Arthur S. Leonard, Same-Sex Family Recognition and Anti-Discrimination Law: A Free Speech Battleground, 56 Family Law Quarterly 161-174 (2023).
• David Y.K. Kwok, ASEAN Dispute Settlement and the Temple of Preah Vihear, 2023 Journal of Dispure Resolution 90-115 (2023).

Supreme Court Review Sought in Tennessee's Ban on Medical Treatment of Minors for Gender Dysphoria

 A petition for certiorari (full text) was filed with the U.S. Supreme Court this week in L.W. v. Skrmetti, (Sup. Ct., filed 11/1/2023). In the case, the U.S. 6th Circuit Court of Appeals in a 2-1 decision, reversed a preliminary injunction issued by a district court in a challenge to Tennessee's ban on chemical, hormonal or surgical treatment of minors for gender dysphoria. The majority rejected due process and equal protection challenges to the state law. (See prior posting.) ACLU issued a press release  announcing its filing of the petition seeking review of the 6th Circuit's decision.

2023 Report on Religious Liberty in the States Released

The Center for Religion, Culture and Democracy has released its report 2023 Religious Liberty in the States. In this, its second annual report that measures state-level protections for religious liberty, the Center has added three new criteria, so that it now bases its state rankings on 14 types of state laws. The Report's Executive Summary says in part:

RLS has approached religious liberty from the perspective that people of any faith or no faith should be allowed to live in all areas of their lives according to their sincere beliefs. For that reason, we have not limited our analyses to activities that typically occur within houses of worship or activities of the clerical professions; we have defined religious exercise broadly. And while in 2022 it was not our intention to focus on any particular areas of life—rather, in our first project year we aimed to characterize the laws in areas where they were most clear—we note that in 2023 the new safeguards are noticeably more closely tied to religious ceremony or observance, narrowly understood. RLS continues to explore new items for future years and welcomes feedback from interested parties.

The Report ranks Illinois as highest in religious liberty protections and ranks West Virginia lowest.

White House Will Develop National Strategy to Counter Islamophobia

The Whtie House announced yesterday that the Biden-Harris Administration will develop the first National Strategy to Counter Islamophobia in the United States. The announcement (full text) said in part:

For too long, Muslims in America, and those perceived to be Muslim, such as Arabs and Sikhs, have endured a disproportionate number of hate-fueled attacks and other discriminatory incidents. We all mourn the recent barbaric killing of Wadea Al-Fayoume, a 6-year-old Palestinian American Muslim boy, and the brutal attack on his mother in their home outside Chicago.

Today’s announcement is the latest step as part of President Biden’s directive last year to establish an interagency group to increase and better coordinate U.S. Government efforts to counter Islamophobia, Antisemitism, and related forms of bias and discrimination within the United States.

Missouri Appeals Court Finds Secretary of State's Ballot Summary of Abortion Rights Initiatives Unfair

In Fitz-James v. Ashcroft, (MO App., Oct. 31, 2023), a Missouri state appeals court agreed with a trial court that ballot summaries prepared by the Secretary of State for six different abortion rights initiative proposals were insufficient and unfair.  Three of the offending summaries read as follows:

Do you want the Missouri Constitution to:

• allow for dangerous, unregulated, and unrestricted abortions, from conception to live birth, without requiring a medical license or potentially being subject to medical malpractice;

• nullify longstanding Missouri law protecting the right to life, including but not limited to partial-birth abortion;

• allow for laws to be enacted regulating abortion procedures after Fetal Viability, while guaranteeing the right of any woman, including a minor, to end the life of their unborn child at any time; and 

• require the government not to discriminate against persons providing or obtaining an abortion, potentially including tax-payer funding.

The appeals court, with a few modifications, accepted the trial court's rewritten versions of the ballot summaries. For example, the appeals court prescribed the following rewrite for one of the proposals:

Do you want to amend the Missouri Constitution to:

• establish a right to make decisions about reproductive health care, including abortion and contraceptives, with any governmental interference of that right presumed invalid;

• remove Missouri’s ban on abortion;

• allow regulation of reproductive health care to improve or maintain the health of the patient;

• require the government not to discriminate, in government programs, funding, and other activities, against persons providing or obtaining reproductive health care; and

• allow abortion to be restricted or banned after Fetal Viability except to protect the life or health of the woman?

The Secretary of State issued a press release criticizing the decision and saying that he plans to appeal it.  AP reports on the decision. (See prior related posting.) [Thanks to Thomas Rutledge for the lead.]

Free Speech and Free Exercise Challenges to Law Restricting Sidewalk Counselors Moves Ahead

In Pro-Life Action Ministries v. City of Minneapolis, (D MN, Oct. 30,2022), a Minnesota federal district court dismissed void-for-vagueness and an expressive-association challenges to a Minneapolis ordinance that bans physically disrupting access to a reproductive healthcare facility.  The court however refused to dismiss plaintiff's free speech, free exercise of religion and overbreadth claims. It said that it is impossible, without a trial record that explores historical background, legislative history, and contemporaneous statements of decisionmakers to determine whether the law is neutral and generally applicable, or whether, instead, it targets religious conduct. A trial record is also needed to decide whether the law is narrowly tailored. The suit was brought by a Christian nonprofit organization that engages in “sidewalk counseling” outside abortion clinics.

Louis Farrakhan Sues Anti-Defamation League for $4.8 Billion

Suit was filed earlier this month in a New York federal district court by Nation of Islam leader Louis Farrakhan against the Anti-Defamation League and the Simon Wiesenthal Center seeking $4.8 billion in damages. The suit alleges that defendants are interfering with Farrakhan's activities through labeling him as an antisemite. The complaint (full text) in Farrakhan v. Anti-Defamation League, (SD NY, filed 10/16/2023), alleges violations of the First Amendment's protections for freedom of association and free exercise of religion, as well as alleging causes of action for defamation. The complaint contends that the Anti-Defamation Leage is a "de facto, quasi-governmental actor", alleging in part:

 344.... [O]n or about December 20, 2022, the Defendant ADL submitted a demand letter directly to the Office of Management and Budget ... for funds it desired to be redirected from programs and services that benefit the average American citizen to its own coffers to be used as it sees fit....

345.Extraordinarily, that same demand letter brazenly commanded the OMB to allocate funds to other agencies and departments of the U.S. government that it, and/or its functionaries, would directly benefit from....

348.Based upon the regulations of the U.S. government, Defendant ADL’s fiscal appropriations demand made directly to the OMB incontrovertibly establishes it as a quasi-governmental agency....

More generally, the complaint says in part:

2. For nearly forty (40) years, the Anti-Defamation League ..., later joined by the Simon Wiesenthal Center ..., in violation of the rights and protections guaranteed by the First Amendment to the United States Constitution, have engaged in actions to hinder Minister Farrakhan and the Nation of Islam from continuing the Mission that Allah (God) gave to the Most Honorable Elijah Muhammad. 

3. That Mission, accepted by Minister Farrakhan, is to deliver the Truth that will correct the condition of spiritual, mental and moral death of the black man and woman of America that came as a result of the 310 years of chattel slavery and over 150 years of oppression and suppression, thereafter....

6. This lawsuit is to ensure that the abuse, misuse, and false use of the terms “anti-Semite,” “anti-Semitic,” and “antisemitism,” as falsely charged by the Defendants is permanently barred from being a tool to defame Plaintiffs and stifle the exercise of constitutional rights.

The Forward reports on the lawsuit.

Court Enjoins Enforcement of Kansas Abortion Disclosure and Waiting Period Requirements

 In Hodes & Nauser MDs PA v. Kobach, (KS Dist. Ct., Oct. 30, 2023), a Kansas state trial court in a 92-page opinion issued a temporary injunction barring enforcement of the abortion disclosure and waiting period requirements in Kansas Woman’s-Right-to-Know Act and its Medication Abortion Reversal Amendment. The court, relying on state constitutional provisions, said in part:

The Kansas Supreme Court has previously noted that trial courts face a “heavy task” when wrestling with these issues, and this Court concurs in the observation that no easy decisions exist on what may be one of the most divisive social issues of our modern history.... Inevitably, some likely will disagree or take issue with the interim conclusions reached herein on Plaintiffs’ motion for a Temporary Injunction, whether based upon specific moral, ethical, or spiritual concerns. However, such considerations are (and must be) separate and apart from this Court’s role in evaluating the potential constitutional encroachment (or lack thereof) of the State’s efforts to impose its authority under the auspices of police power, given our state Founding Father’s emphasis on (and the primacy of) the people’s inalienable natural rights. Those constitutional guarantees include the people’s rights to make their own decisions regarding their bodies, health, family formation, and family life-decisions that can include whether to continue a pregnancy—all of which are necessary corollaries to the right of bodily autonomy. Similarly, the right to freedom of speech, whether to speak or avoid compelled speech, is also a fundamental right that our state founders held dear and enshrined in the Bill of Rights, thus, it demands protection under a strict scrutiny standard in this case....

The Court has great respect for the deeply held beliefs on either side of this contentious issue. Nevertheless, the State’s capacity to legislate pursuant to its own moral scruples is necessarily curbed by the Kansas Constitution and its Bill of Rights. The State may pick a side and viewpoint, but in doing so, it may not trespass upon the natural inalienable rights of the people. In this case, the preliminary record before the Court demonstrates that the provisions at issue invade and unconstitutionally infringe upon Kansans’ fundamental rights under Section 1 and 11 of the Kansas Constitution Bill of Rights.

KWCH News reported on the decision.

Pennsylvania Legislature Repeals Ban on Public School Teachers Wearing Religious Garb or Insignia

Yesterday, the Pennsylvania legislature gave final passage to Senate Bill 84 (full text) which repeals Pennsylvania's ban on public school teachers wearing any religious garb or insignia in the classroom. According to Penn Live, Governor Josh Shapiro is expected to sign the bill when it reaches his desk. Pennsylvania is the only state that still has such a ban on its books. In Nichol v. Arin Intermediate Unit 28, (WD PA, June 25, 2003), a Pennsylvania federal district court, in a preliminary injunction action, held that the law likely violates the Free Speech and Free Exercise clauses of the 1st Amendment. After the decision, plaintiff was rehired and given back pay. (See Senate Memo on SB 84.)

British Court Rejects Muslim Mother's Objections to Child's Routine Vaccinations

 In WSP (A Child), Re (Vaccination: Religious Objection, (EWHC (Family), Oct. 23, 2023), a British trial court rejected a claim by a Muslim mother that her rights under Article 9 of the European Convention on Human Rights were being violating when the state insisted on routine vaccinations for her 9-month old son who, because of the mother's mental health condition, was in custody of the state. According to the court, the mother contended:

 ... [T]he use of animal products or animal testing in the production of the vaccines means that some (but not all) Muslims consider their use to be 'haram' (forbidden).... She is concerned that, if vaccinated, WSP would suffer emotional or psychological harm. If he does something haram without repenting, 'this would take him out of the fold of Islam, as he would not have adhered to the rulings of God made for people'. It would be harmful for him to have to repent for something he had no control over.... He may feel guilty and confused. He may question why his mother or grandparents did not stop the immunisations. He may also question his religion and his place within the family and/ or community if he has not allowed the same religious observances as others....

The court concluded in part:

... [I]n the absence of cogent, objective evidence of harm to his welfare, the mother's objections on religious grounds do not otherwise outweigh WSP's welfare interests in receiving the vaccinations....  Her religious objections must be given respect.... However, those religious views do not carry more weight the more strongly they are held or the more forcefully they are expressed.... Given my conclusion that the welfare reasons the mother has put forward do not outweigh WSP's interests in receiving the vaccines, the fact of her objection, even on well-founded religious grounds and however strongly expressed, takes the matter no further. WSP's welfare is the paramount consideration and the mother's objection is inconsistent with his welfare. The fact her objection is founded on her religious beliefs does not constitute a trump card that overrides what is otherwise in his best interests.

Law & Religion UK has more on the decision.                                                                                                              

Satanic Temple Lacks Standing to Challenge Indiana Abortion Ban

 In The Satanic Temple, Inc. v. Rokita, (SD IN, Oct. 23, 2023), an Indiana federal district court dismissed The Satanic Temple's challenge under Indiana's Religious Freedom Restoration Act to the state's ban on abortions. The court dismissed for lack of standing, finding that TST failed to identify any of its members who are pregnant and has no clinic of its own operating in Indiana. Indiana's Attorney General issued a press release announcing the decision. Indiana Capital Chronicle reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• Paul E. McGreal, Reforming the Ministerial Exception, (Villanova Law Review, Vol. 69, No. 1, 2024).
• Marc O. DeGirolami, Establishment as Tradition, (Yale Law Journal, Forthcoming).
• Nicholas Aroney & Mark Fowler, Freedom of Association in Australia, (September 28, 2023).
• Ofra Bloch & Barak Medina, The Two Revolutions of Israel’s National Identity, (Israel Law Review, Forthcoming).
• Manal Totry-Jubran, Constitutionalising Israel’s Constitutional System, (Israel Law Review (2023) 1-14).
• Ronli Sifris, Abortion in Australia: Law, Policy, and the Advancement of Reproductive Rights, (Mary Ziegler (ed), Research Handbook on International Abortion Law (Edward Elgar, 2023)).
• Barak Medina, Legal Challenges of Mass Demonstrations: The Case of Israel, (September 24, 2023).
• Kevin C. Walsh, The Elevation of Reality over Restraint in Dobbs v. Jackson Women's Health Organization, (Harvard Journal of Law and Public Policy, Vol. 25, No. 3, 2023).
• Robert Post, Public Accommodations and the First Amendment: 303 Creative and "Pure Speech", (September 13, 2023).
• Michelle M. Wu, Book Bans, Abortion Laws, and Gender-Affirming Treatment: How Requiring Government Action to Pass a Faith-Neutral, Public Purpose Test Would Better Protect the Right to Religious Liberty, (September 25, 2023).

From SmartCILP and elsewhere:

• Symposium, About the Future of Religious Freedom, Iowa Law Review, Vol. 108, Issue 5 (Oct. 2022).
• Australian Journal of Law & Religion, Vol. 3 (2023).

President's Statement on 25th Anniversary of International Religious Freedom Act

On Friday, President Biden issued a Statement (full text) the 25th Anniversary of the International Religious Freedom Act. He said in part:

Here at home, we are facing a rising tide of antisemitism, Islamophobia, and other forms of discrimination that are fueling violence and hate across our country. And, around the world, billions of people live in countries where they are either persecuted or prevented from freely choosing, practicing, teaching, or leaving their faith. That’s especially true for members of religious minority communities too often endure intimidation, violence, and unequal protection under the law, while also facing restrictions on their movement, constraints on their access to education and healthcare, and the fear that their children will be taken and their faith erased. We have seen attacks on Christians in some countries. And we also continue to see repressive governments and violent extremists reach across borders and to target groups for their beliefs—an abhorrent abuse of the human rights and dignity entitled to all people.

 The United States will continue to defend religious freedom, today and always.

[Corrected]. 

West Virginia School Settles Suit Over Religious Activities

The Freedom From Religion Foundation announced yesterday the settlement of a suit against a West Virginia school, its principal and a substitute teacher for scheduling and hosting an evangelical Christian revival as an assembly in the school auditorium during homeroom period in violation of the Establishment Clause.  Yesterday the parties jointly dismissed Mays v. Cabell County Board of Education, (SD WV, dismissed 10/26/2023).. According to FFRF:

As part of a settlement, the board agreed to amend its policies relating to religion in schools. The board voted on Oct. 17 to adopt the policy revisions. Significantly, those changes require annual training of teachers about religion in school. School administrators also are tasked with greater monitoring of school events. Finally, the policy provides greater detail to ensure that employees do not initiate or lead students in religious activities. [Full text of amended policy.]

The settlement also includes nominal damages and attorneys' fees of $175,000 paid by the school board's insurers. (See prior related posting.)

Tennessee Sues to Restore Title X Grant Without Making Abortion Referrals

Tennessee's Attorney General this week filed suit against the U.S. Department of Health and Human Services seeking to restore Tennessee's $7 million annual Title X family planning grant which had been cancelled because of the state's abortion referral policy.  The complaint (full text) in State of Tennessee v. Becerra, (ED TN, filed 10/24/2023), challenges the HHS rule that requires Title X grantees to furnish information and nondirective counseling on abortion if pregnant clients request it.  Tennessee was only willing to make referrals and provide counseling as to procedures that are legal in Tennessee,  HHS takes the position that where, as in Tennessee, abortion is outlawed, out-of-state referrals would be required. the suit contends that the HHS rule violates various provisions of the Administrative Procedure Act. It asks the court, among other things, to:

Enjoin Defendants from withholding Title X funds from Tennessee for refusing to offer counseling and referrals (including out-of-state) for abortions that are otherwise illegal under Tennessee law.

Catholic World Report reports on the lawsuit.

Texas Supreme Court Hears Oral Arguments from JP Sanctioned for Refusing to Perform Same-Sex Weddings

The Texas Supreme Court yesterday heard oral arguments (video of full oral arguments) in Hensley v. State Commission on Judicial Conduct, (TX Sup. Ct., Oct. 25, 2023). (Briefs filed in the case.) In the case, the state Court of Appeals affirmed the dismissal of a suit challenging a public warning issued by the Commission on Judicial Conduct that concluded plaintiff, a justice of the peace, had cast doubt on her ability to act impartially toward LGBTQ litigants. Plaintiff refused to perform same-sex weddings, while continuing to perform weddings for heterosexual couples. She contended that the Commission on Judicial Conduct violated her rights under the Texas Religious Freedom Act. (See prior posting.)  The appeals court held that the suit was an impermissible collateral attack on the Commission's order. Texas Tribune reports on the oral arguments.

OK Supreme Court: Church Autonomy Doctrine Requires Dispute Over Disaffiliation to Be Dismissed

In Oklahoma Annual Conference of the United Methodist Church v. Timmons, (OK Sup. Ct., Oct. 24, 2023), the Oklahoma Supreme Court held that under the church autonomy doctrine, a state trial court lacked subject matter jurisdiction to issue the temporary injunction it had entered in a dispute between the United Metodist Church and a local congregation, some of whose members wished to have the congregation disaffiliate from the parent body.  The initial vote by the Church of the Servant congregation fell slightly short of the number needed under United Methodist Book of Discipline to disaffiliate. The District Superintendent refused to exercise the discretion he had under Church rules to call another vote on the matter within a specified time period. The trial court concluded that the District Superintendent was biased against the congregation and ordered the parent body to allow a revote, even though it was beyond the time specified for it in the Book of Discipline.  The Supreme Court said in part: 

In ordering the temporary mandatory injunction in favor of Church of the Servant, Respondent found the church was likely to succeed on the merits and would be irreparably harmed without the injunction.... In so finding, the District Court interpretated the Book of Discipline church doctrine and procedures for UMC and fashioned a remedy contrary to Book of Discipline procedures.

New House Speaker Has Long Record of Conservative Advocacy on Religious Freedom Issues

Newly elected Speaker of the U.S. House of Representatives, Mike Johnson (R- LA), has a long record, before he was in Congress, of advocacy on conservative Christian religious issues.  Wikipedia reports:

Before his election to Congress, Johnson was a partner in the Kitchens Law Firm and a senior attorney and national media spokesman for the Alliance Defense Fund, now known as Alliance Defending Freedom. Johnson was also formerly chief counsel of the nonprofit law firm Freedom Guard.

In September 2016, Johnson characterized his legal career as "defending religious freedom, the sanctity of human life, and biblical values, including the defense of traditional marriage, and other ideals like these when they’ve been under assault."

Johnson served as a trustee of the Ethics and Religious Liberty Commission within the Southern Baptist Convention from 2004 to 2012.

Johnson came to some prominence in the late 1990s when he and his wife appeared on national television to represent Louisiana's newly passed marriage covenant laws, which made divorce more difficult legally.

Louisiana House of Representatives

After the 8th District seat was vacated in 2015, Johnson ran for the position unopposed....

In April 2015, Johnson proposed the Marriage and Conscience Act, a bill similar in content to Indiana's controversial Religious Freedom Restoration Act passed a few days earlier, though Johnson denied that his legislation was based on the Indiana law.

Johnson's Marriage and Conscience Act would have prevented adverse treatment by the State of any person or entity on the basis of the views they may hold with regard to marriage. Critics denounced the bill as an attempt to protect people who discriminate against same-sex married couples.

An e-mail statement from First Liberty Institute says that Johnson was also once a First Liberty attorney.

Georgia Supreme Court: 2019 Heartbeat Abortion Ban Was Not Void Ab Initio

In State of Georgia v. SisterSong Women of Color Reproductive Justice Collective, (GA Sup. Ct., Oct. 24, 2023), the Georgia Supreme Court rejected a state trial court's holding that the state's heartbeat abortion ban (Living Infants Fairness and Equality Act) enacted in 2019 was void ab initio. The state Supreme Court had previously granted a stay of the trial court's order while the appeal was pending. Yesterday's decision keeps the law in effect while other challenges to it work their way through the courts. In yesterday's decision, the court said in part:

[T]he trial court concluded that portions of the LIFE Act were void when enacted in 2019 because they “were plainly unconstitutional [under the United States Constitution] when drafted, voted upon, and enacted.” According to the trial court, this was true even though the LIFE Act would comply with the United States Constitution if enacted today and the same United States Constitution governs today as governed when the LIFE Act was enacted.

This incorrect conclusion rests on a faulty premise — that, in Dobbs, the United States Supreme Court changed not only its interpretation of the United States Constitution but also the meaning of the Constitution itself. This could be true, however, only if (1) the United States Supreme Court, as opposed to the United States Constitution, is the source of the Constitution’s meaning or (2) the United States Supreme Court has the power not only to interpret the Constitution but also to amend it.... [B]oth of these propositions conflict with well-established, foundational principles of law that are essential to our system of government.

The case now goes back to the trial court for it to consider other challenges under the state constitution to the law.

Justice Ellington filed a dissenting opinion. WABE News reports on the decision. ACLU issued a press release reacting to the decision.

Consent Decree Entered In RLUIPA Suit Charging Discrimination Against Orthodox Jews

Last week, a New York federal district court entered a consent decree (full text) in United States v. Village of Airmont, (SD NY, Oct. 19, 2023). The decree settles a RLUIPA suit brought by the Justice Department charging the Village with religious discrimination. The consent decree supersedes a preliminary injunction issued by consent in 2021. (See prior posting.) According to the Justice Department's press release describing last week's consent decree:

The lawsuit alleged that Airmont had revised its zoning code in 2018 to discriminate against Orthodox Jewish residents and make it more difficult for them to worship in their own homes. The consent decree increases the amount of space in private homes that can be used for worship, removes restrictions that limited who residents are allowed to invite into their own homes to pray and eliminates the use of an arbitrary, drawn-out application process designed to delay and effectively deny permits for even minor alterations to private houses. Since 1991, this is the third lawsuit brought by the United States against Airmont for discriminating against the Orthodox Jewish community.

Principal Can Move Ahead with Claim He Was Nonrenewed Because of Speech to Fellowship of Christian Athletes

In Littlefield v. Weld County School District RE-5J, (D CO, Oct. 19, 2023), a Colorado federal district court refused to dismiss a retaliation claim against a school Superintendent brought by a former high school principal who was demoted and then whose contract was not renewed. Plaintiff, who alleged discrimination because he was a conservative Christian male, claimed that these action against him were taken because of a motivational speech he had given to the Fellowship of Christian Athletes before school started. The court said in part:

Dr. Littlefield has plausibly alleged that Ms. Arnold retaliated against him for his association with the FCA in violation of his First Amendment rights when she issued a negative performance review and demoted him.

Plaintiff's freedom of association claim against the Assistant Superintendent of Human Resources was dismissed.