Recent Articles of Interest

 From SSRN:

• Michael Stokes Paulsen, Freedom for Religion, (Yale Law Journal Forum (2023)).
• Stephanie H. Barclay, Replacing Smith, (Yale Law Journal, (2023)).
• Trudo Lemmens, When Death Becomes Therapy: Canada’s Troubling Normalization of Health Care Provider Ending of Life, (American Journal of Bioethics (2023) 23(11): 79-84).
• Indri Kurnia, et. al., Understanding the Governance of Family Endowments in the Context of Dual Accountability, (International Journal of Scientific and Management Research, Volume 06 Issue 11, pp. 88-100 (2023)).
• Christopher Ryan, Confusing Cy Près, (Georgia Law Review, Vol. 58, 17-96 (2023)).
• Nicolas Duquette, Wealth Shocks Don't Affect Charitable Giving Much, (December 18, 2023).

From SmartCILP:

• Symposium: The Religiously Affiliated Law Schools Conference, Touro Law Review, Vol. 38, No. 4 (2023).
• Shamshad Pasarlay & Clark Lombardi, The Constitutional Imagination of the Mujahidin: A History and Translation of Two Constitutions Proposed by Afghan Islamist Militias in the 1990s, [Abstract], 32 Washington International Law Journal 283-305 (2023).

School Board Not Liable for Teacher's Proselytization of Muslim Student

In Chaudhry v. Community Unit School District 300 Board of Education, (ND IL, Dec. 29, 2023), an Illinois federal district court dismissed Establishment Clause, Due Process and Equal Protection claims by Muslim parents against an Illinois school board that employed teacher Pierre Thorsen who convinced their daughter to convert to Christianity.  The court said in part:

[T]he complaint continues to state an implausible theory of Monell liability because it does not plead enough factual matter to raise the inference that any assertedly unconstitutional practice had become so widespread that the Board was bound to have noticed it. It likewise continues to fail to plausibly allege that anyone other than Thorsen was the moving force behind any of the Parents’ asserted injuries.... At best, the Parents have alleged facts consistent only with the “isolated wrongdoing of one . . . rogue employee[].”... Because Monell does not allow for respondeat superior liability, these claims are not plausibly pleaded, and they therefore fail.

Ohio Governor Vetoes Ban on Gender Affirming Treatments for Minors and Women's Sports Provisions: Proposes Administrative Alternatives

 Ohio Governor Mike DeWine today vetoed HB 68 which prohibited physicians from performing gender reassignment surgery or prescribing cross-sex hormones or puberty blockers to minors, and prohibited transgender women from participating on women's athletic teams in schools that participate in interscholastic athletics and in public and private colleges. (Full text of Governor's Veto Message, his prepared Statement at a News Conference, and a video of his lengthy News Conference on the veto.) Focusing only on the ban on treatment of minors, the Governor said in part:

Were I to sign Substitute House Bill 68 or were Substitute House Bill 68 to become law, Ohio would be saying that the State, that the government, knows what is best medically for a child rather than the two people who love that child the most, the parents...

I have listened to the concerns the Legislature ... and agree that action is necessary regarding a number of issues raised.

I believe we can address a number of goals in Substitute House Bill 68 by administrative rules that will have a better chance of surviving judicial review and being adopted....

I adamantly agree with the General Assembly that no surgery of this kind should ever be performed on those under the age of 18. I am directing our agencies to draft rules to ban this practice in Ohio.

I share with the legislature their concerns that there is no comprehensive data regarding persons who receive this care, nor independent analysis of any such data. I am today directing our agencies to immediately draft rules to require reporting to the relevant agencies and to report this data to the General Assembly and the public every six months. We will do this not only when patients are minors, but also when the patients are adults.

I also share with the legislature’s concerns about clinics that may pop up and try to sell patients inadequate or even ideological treatments. This is a concern shared by people I spoke with who had both positive experiences and negative experiences with their own treatments....

Therefore, I am directing our agencies to draft rules that establish restrictions that prevent pop-up clinics or fly-by-night operations and provide important protections for Ohio children and their families and for adults.

Israel's Top Court OK's Adoption by Same-Sex Couples

 As reported by Times of Israel, a 3-judge panel of Israel's Supreme Court sitting as the High Court of Justice yesterday ruled that under Israel's 1981 adoption law, same-sex couples are eligible to adopt children. The court said in part:

Though the language of clause 3 [of the child adoption law, 1981] is more consistent, on its face, with the interpretation according to which the phrase of ‘a man and his wife together’ refers to heterosexual couples, an interpretation according to which this section also includes same-sex couples does not go beyond the range of possible linguistic interpretations.

This is because examining the phrase in its full linguistic context shows that the language of the section creates a distinction between two general categories: those who belong to a family framework that includes two parents, versus those who seek to adopt into a single-parent family framework. That is, the focus of the section is that it is an adoption by a stable marital framework to which the child will be given, unlike an single [parent framework].

According to Times of Israel, reporting on Acting Supreme Court President Uzi Vogelman's opinion:

He added that historical record showed that when the law was legislated the question of whether same-sex couples were fit to adopt was not considered. Vogelman wrote that the language of the law was devised by the Knesset to determine that it was for the benefit of the child up for adoption to be adopted into a two-parent family, and it was not aimed at making a determination regarding same-sex couples.

Court Finds Idaho's Ban on Gender Affirming Care for Minors Unconstitutional

In Poe v. Labrador, (D ID, Dec. 26, 2023), an Idaho federal district court issued a preliminary injunction barring enforcement of Idaho's recently enacted Vulnerable Child Protection Act which prohibits medical providers from surgically or chemically treating gender dysphoria in minors. The court held that because the statute discriminates on the basis of sex and transgender status, it is subject to heightened scrutiny under the equal protection clause, and found that the statute likely fails that test, saying in part:

Generally, the State Defendants say the legislature’s purpose in passing HB 71 was to protect vulnerable children from the dangers of unproven medical and surgical treatments. At a general level, safeguarding the physical wellbeing of children is of course important.... But in this case, the Court finds that the asserted objective is pretextual, given that HB 71 allows the same treatments for cisgender minors that are deemed unsafe and thus banned for transgender minors. That is, the medications and procedures that are used in gender-affirming medical care (such as puberty blockers, hormones, and surgeries) are used to treat cisgender adolescents for other purposes. But rather than targeting the treatments themselves, HB 71 allows children to have these treatments—but only so long as they are used for any reason other than as gender-affirming medical care....

The court also found the likelihood of success on plaintiffs' due process claims, saying in part:

[T]his Court easily concludes that the parent plaintiffs enjoy a fundamental right to seek a specific form of medical treatment for their children, which would include the gender-affirming medical care banned by HB 71.

The court however did dismiss plaintiffs' unusual claim against the publisher of Idaho's annotated statutes. Plaintiffs had argued that by failing to include annotations to federal cases that would indicate that Idaho's statute is unconstitutional, the publishers violated plaintiffs' due process rights.

Los Angeles Blade reports on the decision.

EEOC Announces Settlements In 2 Religious Discrimination Lawsuits

In the last several days, the EEOC has announced settlements in two unrelated Title VII religious discrimination suits filed by the agency.  Last week the EEOC announced that Children's Healthcare of Atlanta will pay $45,000 in damages to a former maintenance employee who was denied a religious exemption from the healthcare system's flu vaccine requirement. The employee, who worked primarily outside and had limited contact with the public or other staff, had been granted an exemption in 2017 and 2018, but was denied one and fired in 2019. Under the consent decree settling the suit, Children's Healthcare will also modify its religious exemption policy to presume eligibility for employees who work away from patients and other staff.

Yesterday the EEOC announced that Triple Canopy, Inc., a company that provides protective services to federal agencies, will pay $110,759 in damages to an employee who was denied a religious accommodation of his Christian belief that men must wear beards. The company denied the accommodation because the employee was unable to provide additional substantiation of his beliefs or a supporting statement from a documented religious leader. The company will also institute a new religious accommodation policy.

Indian Court Bars Exclusion of Scheduled Caste from Temple Festival

Last week in the Indian state of Tamil Nadu, the Madras High Court issued an order to prevent members of a Scheduled Caste from being excluded from a Temple Festival. In Pandiarajan v. District Collector, (Madras High Ct., Dec. 19, 2023), the court said in part:

... [P]etitioner submits that the people from Maravar community in their Village are not permitting the Scheduled caste people to participate in the temple festival and they are preventing them from taking mulaippari and not collecting tax from them for the temple festival.... [A] peace committee meeting ... between both the groups ... [decided] that the village festival has to be performed only as per the advice of the HR & CE [Hindu Religious and Charitable Endowments] Department that no community people is entitled to conduct the festival by collecting tax separately that the parties are restrained from spreading any rumors in the social media.... [P]etitioner submits that even after this resolution... the caste hindus are not permitting the scheduled caste people to participate inthe Margazhi festival of the above temple.... 

Even after 75 years of independence, if this state of affairs prevails on account of community in the village, it needs to be addressed and prevented. No person nor any group can restrain a person from performing his religious duties and it is the right guaranteed under the Constitution.

... The temple worshipped by the public is a public temple and the HR & CE Department is having every right to interfere with the affairs of the temple.  It was, in fact agreed between the parties in the peace committee meeting that the festival has to be conducted by the HR & CE Department.

LiveLaw 10 reports on the decision.

Top 10 Church-State and Religious Liberty Developments of 2023

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year.  My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention. With each pick, I link to one of numerous postings on the topic. The selection of top stories obviously involves a good deal of subjective judgment. Here is a somewhat different list of top stories and newsmakers from the Religion News Association, the professional association of religion journalists. I welcome e-mail comment at religionclause@gmail.com on my choices. Here are my Top Ten picks:

1. Antisemitism spikes in U.S. as President releases National Strategy to Combat Antisemitism.

2. Supreme Court in 303 Creative v. Elenis says free speech protection allows website designer to refuse to create sites for same-sex weddings in violation of her religious beliefs.

3. State legislatures restrict gender dysphoria treatment for minors and transgender women's participation in competitive sports, while teachers sue over school policies requiring them to use students' preferred pronouns or conceal students' social transitions from parents.

4. Court challenges to state abortion bans continue. Plaintiffs claim bans violate state constitutions or violate their religious beliefs regarding abortion.

5. Supreme Court grants review of FDA rules that permit mail distribution of abortion pill.

6. Suits over past denials of religious exemptions from COVID vaccine mandates continue to play out in the courts.

7. Federal agencies say Title VI prohibits certain forms of antisemitic, Islamophobic, and related forms of discrimination in federally funded programs and activities, even though Title VI does not specifically ban religious discrimination.

8. California's targeting of caste discrimination challenged by Hindu Americans.

9. Oklahoma approves state-funded online Catholic charter school. State AG sues.

10. 9th Circuit allows fraud claim against LDS Church over representations about use of tithed funds to proceed.  Plaintiff is prominent former member who had tithed over $2.6 million.

Recent Articles of Interest

From SSRN:

• David Simson, Methodological Gerrymandering, (Cleveland State Law Review, Vol. 72, No. 1, 2023).
• Tolga Bozkurt, The Mihrabs of the Early Ottoman Imperial Mosques, (December 12, 2023).
• Sahar F. Aziz, Presumptively Antisemitic: Islamophobic Tropes in the Palestine Israel Discourse, ((November 12, 2023). Rutgers Center for Security, Race and Rights).
• C.G. Bateman, Bishops on the Bench: Why Constantine Legislated Christian Bishops into the Role of Judges, (Approved PhD Thesis. Electronic Theses and Dissertations (ETDs) 2008+. University of British Columbia, 2022).
• David H. Schraub, Renewing Study into the Oldest Hatred: Introduction to the Law vs. Antisemitism Symposium, (Lewis & Clark Law Review, Vol. 27, 2024).
• Barak Medina, State and Religion: The Israeli Model, (December 20, 2023).
• Thomas Charles Berg, The Irony of American Religious-Freedom Disputes, (Wayne Law Review, Forthcoming).
• Andrew T. Hayashi, Christianity and the Liberal(ish) Income Tax, (Notre Dame Journal of Law, Ethics and Public Policy, Forthcoming).
• Swethaa Ballakrishnen, Rethinking Inclusion: Ideal Minorities, Inclusion Cultures, and Identity Capitals in the Legal Profession, (Law & Social Inquiry, Vol. 48, No. 4, 2023).

From SmartCILP:

• Erwin Chemerinsky, Keynote Address: Justice Breyer and the First Amendment, 21 First Amendment Law Review 291-302 (2023).
• William T. Sharon, Religious and Secular Comparators, 30 George Mason Law Review 763-830 (2023).
• Zeina Jallad, Identity Annexation: Israel's Non-Territorial and Psychic Annexation of West Bank Samaritans in the Occupied Palestinian Territories, 26 University of Pennsylvania Journal of Law & Social Change 73-120 (2023).

Minnesota Court Hears Oral Arguments on Pharmacist's Refusal To Dispense Morning-After Pill

The Minnesota Court of Appeals yesterday heard oral arguments (audio of full oral arguments) in Anderson v. Aitkin Pharmacy Services, LLC, (Dec. 21, 2023). At issue is whether a pharmacist violated the sex discrimination provisions of the Minnesota Human Rights Act when, because of his religious belief, he refused to dispense the morning-after emergency contraception drug ella and instead referred her to another pharmacist who could fill her prescription the next day. ADF issued a press release regarding the case.

Negligence Claims Against Religious Boarding School Barred by Establishment Clause

In Drew v. Householder, (WD MO, Dec. 19, 2023), plaintiff sued Circle of Hope Boarding School, a fundamentalist Baptist school for girls, and its schoolmasters alleging that during the five years she was there she was subjected to sexual, physical and emotional abuse, and received inadequate and unaccredited formal instruction. She also alleged that the schoolmasters took $25,000 plus social security money from her. While allowing plaintiff to move ahead with several claims, the court dismissed, among others, her negligence claims, saying in part:

The Missouri Supreme Court has considered the extent to which judicial decision making may involve analysis of ecclesiastical matters without running afoul of the First Amendment’s establishment and free exercise clauses....

[A]llegations based in Missouri common law of negligence against religious institutions run afoul of the First Amendment, except in limited instances where the negligence allegation does not require interpretation of religious doctrine, policy, or interpretation.... It is plain neither of Plaintiff’s remaining negligence claims—Count Seven’s general negligence and Count Eight’s negligent supervision of students—falls into this narrow exception.... [N]egligent supervision claims against a religious institution violate the First Amendment because they require a court to evaluate “what the church ‘should know.’”... Likewise, general negligence claims against religious institutions violate the First Amendment, as it forces the court to consider how a reasonably prudent religious institution would act, thereby “excessively entangle[ing] itself in religious doctrine, policy, and administration.”...

... [T]his Court likewise finds that dismissal of Plaintiff’s negligence claims in Counts Six, Seven, Eight, and Eleven is appropriate also under the provisions of the Missouri Constitution declaring separation of church and state....

11th Circuit: Appeal of DEA's Denial of Religious Exemption to Controlled Substances Act Must Be in Circuit Court

In Soul Quest Chruch of Mother Earth, Inc. v. Attorney General, (11th Cir., Dec. 18, 2023), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, held that an appeal of the DEA's denial of a religious exemption to a church so it could legally use ayahuasca (a sacramental tea) needs to be made to a Circuit Court of Appeals, not to a federal district court. The issue turned on whether the DEA's denial was made "under" the statutory provisions of the Controlled Substances Act, or whether it was made "under" the Religious Freedom Restoration Act.  21 USC §877 requires appeals of final decisions made under the Control and Enforcement subchapter of the CSA to go to federal circuit courts.  Judge Newsom dissenting argued that the decision was made "under" the Religious Freedom Restoration Act, and so was appealable to a federal district court.

Pope OK's Non-Marital Blessings for Same-Sex Couples

In a Declaration titled "Fiducia Supplicans: On the Pastoral Meaning of Blessings" (full text) issued by the Vatican's Dicastery for the Doctrine of the Faith and approved by Pope Francis, the Pope has given priests permission to give a blessing to same-sex or other unmarried couples. The Declaration says in part:

31. Within the horizon outlined here appears the possibility of blessings for couples in irregular situations and for couples of the same sex, the form of which should not be fixed ritually by ecclesial authorities to avoid producing confusion with the blessing proper to the Sacrament of Marriage. In such cases, a blessing may be imparted that ... descends from God upon those who—recognizing themselves to be destitute and in need of his help—do not claim a legitimation of their own status, but who beg that all that is true, good, and humanly valid in their lives and their relationships be enriched, healed, and elevated by the presence of the Holy Spirit. These forms of blessing express a supplication that God may grant those aids that come from the impulses of his Spirit ... so that human relationships may mature and grow in fidelity to the Gospel, that they may be freed from their imperfections and frailties, and that they may express themselves in the ever-increasing dimension of the divine love.

32. Indeed, the grace of God works in the lives of those who do not claim to be righteous but who acknowledge themselves humbly as sinners, like everyone else. This grace can orient everything according to the mysterious and unpredictable designs of God. Therefore ... the Church welcomes all who approach God with humble hearts, accompanying them with those spiritual aids that enable everyone to understand and realize God’s will fully in their existence.

Catholic News Service reported on the document, and summarized it as follows:

The Vatican offered a narrow set of conditions under which a priest or deacon could give a blessing to a same-sex or other unmarried couple, making it clear the church does not consider their unions a marriage but also recognizing how anyone can ask for a blessing when they are seeking God's assistance, mercy and grace.

Parents Sue School for Using Teen's Preferred Masculine Name and Pronouns

Suit was filed yesterday in a Michigan federal district court by parents of a 13-year-old biologically female child whose school concealed from the parents that the school was referring to the child by masculine name and male pronouns. The complaint (full text) in Mead v. Rockford Public School District, (WD MI, filed 12/18/2023), alleges in part:

7. These actions ... violated the Meads’ long-settled constitutional rights. The First Amendment protects their right to exercise their religion by directing G.M.’s education and upbringing, including on fundamental questions of existence like how G.M. identifies herself. And the Fourteenth Amendment guarantees their fundamental right to make decisions about her upbringing, education, and healthcare. 

8. By intentionally concealing from the Meads important information about their daughter’s education and health—on a subject as morally fraught as gender confusion—the District denied them these constitutional rights. Absent extraordinary circumstances, a school district’s concealment from parents of such information violates the Constitution.

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

Church Buses Used in Released-Time Programs Not Subject to School Bus Regulations

In CBM Ministries of South Central Pennsylvania, Inc. v. Commonwealth of Pennsylvania, (PA Commonwlth.. Ct., Dec. 18, 2023), the Pennsylvania Commonwealth Court in a 5-2 decision held that privately owned vehicles used by a Bible ministry to transport children from public schools to off-site locations for religious instruction during the school day in released-time programs are not subject to state standards for school buses. CBM operates 87 released-time programs in 8 Pennsylvania counties. It contended that requiring it to comply with the heightened standards for school buses would burden its religious exercise in violation of the Pennsylvania Religious Freedom Protection Act (RFPA). The majority concluded:

While CBM does transport children to and from public schools for the released time program, DOT’s regulations, by their plain language, do not apply to vehicles that are neither owned by nor contracted with a school. In other words, the text of the enabling statute expressly limits the reach of DOT’s regulatory power in this area.

President Judge Jubelirer, joined by Judge Wojcik dissented, saying in part:

I fear the Majority’s overly narrow reading of the enabling statute thwarts the legislature’s intent, pursuant to its police power, to empower PennDOT to keep children safe when they are being transported to and from public school during the school day.

The dissenters rejected plaintiff's religious freedom argument saying that Vehicle Code provisions that protect the public from unsafe operation of motor vehicles are explicitly excluded from coverage under the RFPA, and that "for a given regulation to violate RFPA, it must 'substantially den[y an organization] a reasonable opportunity to engage in activities . . . fundamental to its religion.'"

2nd Circuit En Banc: Athletes Have Standing To Sue Under Title IX Over Transgender Girls on Girls' Teams

In Soule v. Connecticut Association of Schools, Inc., (2d Cir., Dec. 15, 2023), the U.S. 2nd Circuit Court of Appeals sitting en banc held that four cisgender female track and field athletes (plus two intervenors) have standing to sue a Connecticut high school athletic conference under Title IX for allowing transgender girls to compete in girls' track and field meets. Plaintiffs claimed that this deprived them of equal athletic opportunity. the court summarized its holding as follows:

We do not consider whether Plaintiffs’ Title IX claims have any merit or whether they would be entitled to the relief that they seek as a matter of equity, but rather whether the district court has jurisdiction to hear their claims in the first instance. We conclude that it does.... Plaintiffs have established Article III standing at this stage in the litigation. They have pled a concrete, particularized, and actual injury in fact that is plausibly redressable by monetary damages and an injunction ordering Defendants to alter certain athletic records. Second, the district court was not required to determine whether Defendants had adequate notice of a Title IX violation to be liable for monetary damages before reaching the merits of Plaintiffs’ Title IX claims.

This majority arose from splintered views expressed in 8 separate opinions concurring in part and dissenting in part from each other and spanning 142 pages. NBC News reports on the decision.

Recent Articles of Interest

From SSRN:

• Timothy Lubin, Religious Endowments in Ancient India and the Institutionalization of Brahmin Caste Status, (Special Symposium Issue: Status in Ancient and Medieval Law (edited by Timothy Lubin), American Journal of Legal History 63: 97–114 (2023)).
• Mark Movsesian, Christians and U.S. Policy on Armenia: Historically and Today, (Armenia and the Community of States (Georgi Asatryan ed.) (Forthcoming 2024)).
• Guy Baldwin, Freedom of Religion under the Australian Constitution: Is Proportionality the Answer?, ((2023) 3 Australian Journal of Law and Religion 20).
• Sébastien Laymond, Chechnya: a Wild Tale of Syncretism, (December 1, 2023).
• Cassidy Terrazas, Conceiving a New Legal Framework: The Implications of Texas Abortion Regulations for In Vitro Fertilization, (November 29, 2023).
• Abu Hayyan Saeed, Jurisprudence of Islam, (December 3, 2023).
• James M. Oleske, Jr., Free Exercise Uncertainty: Original Meaning? History and Tradition? Pragmatic Nuance?, (Wayne Law Review, Forthcoming).

From SmartCILP:

• Robert A. Destro, "Engines of the Ruling Party": The Establishment Clause and the Power Politics of "Managing Diversity", 74 Hastings Law Journal 1683-1750 (2023).
• John Witte Jr. & Eric Wang, The New Fourth Era of Religious Freedom, 74 Hastings Law Journal 1813-1848 (2023).
• Yuksel Sezgin, A Global and Historical Exploration: Legislative Reform in Muslim Family Laws in Muslim-Majority versus Muslim-Minority Countries, [Abstract], 45 Law & Policy 110-136 (2023).

European Court Advisory Opinion: Security Clearance May Be Withdrawn for Supporter of Religion That Is Threat to the State

In a Grand Chamber advisory opinion, the European Court of Human Rights has concluded that Belgium many deny a person the right to work as a security guard because he belongs to a religious movement that poses a threat to the state.  In Requested by the Conseil d’État of Belgium, (ECHR, Dec. 14, 2023), the Belgian Ministry of Interior had withdrawn the identification card of a security guard who was a supporter of the scientific branch of Salafism. The Ministry gave the following justifications:

... [S]cientific Salafism represents a threat to our model of society and to our country. Any security guard or officer must display conduct that is respectful of the fundamental rights of his or her fellow citizens and must respect democratic values....

Even though you have stated that you reject any violence in the name of Islam, the State Security Service has nevertheless indicated that you are a supporter of an ideology which, in particular, questions the legitimacy of Belgian law, advocates community sectarianism, fosters a backward view of the role of women and takes positions which threaten the fundamental rights and freedoms of citizens by a reactionary vision seeking to rid Islam of all its non-Islamic evolutions and influences.

The Court in its Advisory Opinion concluded:

The established fact that an individual belongs to a religious movement that, in view of its characteristics, is considered by the competent administrative authority to represent a threat to the State may justify a refusal to authorise that individual to work as a security guard or officer, provided that the measure in question: (1) has an accessible and foreseeable legal basis; (2) is adopted in the light of the conduct or acts of the individual concerned; (3) is taken, having regard to the individual’s occupational activity, for the purpose of averting a real and serious risk for democratic society, and pursues one or more of the legitimate aims under Article 9 § 2 of the Convention; (4) is proportionate to the risk that it seeks to avert and to the legitimate aim or aims that it pursues; and (5) may be referred to a judicial authority for a review that is independent, effective and surrounded by appropriate procedural safeguards, such as to ensure compliance with the requirements listed above.

Virginia Supreme Court Rules For Teacher Who Refused To Use Student's Preferred Pronouns

In Vlaming v. West Point School Board, (VA Sup. Ct., Dec. 14, 2023), the Virginia Supreme Court, in a 4-3 decision, held that a teacher who was fired after refusing for religious reasons to use masculine pronouns in referring to a biologically female student has a claim for violation of the free exercise provisions of the Virginia state Constitution. The majority, in a 73-page opinion, held that the Virginia Constitution requires greater accommodation than does the First Amendment of the U.S. Constitution when a neutral law of generally applicability conflicts with a religious belief.  The majority said in part:

[W]e hold that in the Commonwealth of Virginia, the constitutional right to free exercise of religion is among the “natural and unalienable rights of mankind,” ... and that “overt acts against peace and good order,”  correctly defines the limiting principle for this right and establishes the duty of government to accommodate religious liberties that do not transgress these limits.

The majority also held that plaintiff had adequately stated a claim under the Virginia Religious Freedom Restoration Act as well as a claim for violation of the free speech and due process provisions of the Virginia Constitution. The majority said in part:

Because the gravamen of Vlaming’s free-speech claims involves an allegation of compelled speech on an ideological subject, we hold that the circuit court erred when it dismissed Vlaming’s free-speech claims....

At the time that the School Board fired Vlaming, no clearly established law — whether constitutional, statutory, or regulatory — put a teacher on notice that not using third-person pronouns in addition to preferred names constituted an unlawful act of discrimination against transgender students. If the government truly means to compel speech, the compulsion must be clear and direct.

Finally the majority concluded that plaintiff adequately alleged that the School Board had breached his contract.

Justice Powell, joined by Chief Justice Goodwyn concurred in part, saying in part:

I write separately to clarify that, in my opinion, the proper test to evaluate a free exercise claim under Article I, Section 16 of the Virginia Constitution is traditional strict scrutiny as expressed in Sherbert v. Verner.... I disagree with the majority’s conclusion “that ‘overt acts against peace and good order,’ ... correctly defines the limiting principle for this right [in Article I, Section 16] and establishes the duty of the government to accommodate religious liberties that do not transgress these limits.”

Justice Mann filed a 64-page opinion dissenting in part. He said in part:

I dissent from the majority’s analysis and interpretation of Article I, Section 16.... The majority’s proposed limiting principle for the free exercise provision ... is not supported by the plain words of our Constitution, its history, our legal precedent, or legislative action of the General Assembly. I also dissent with respect to the majority’s rulings on Vlaming’s free speech and due process claims. Regarding Vlaming’s free-exercise claim, the majority establishes a sweeping super scrutiny standard with the potential to shield any person’s objection to practically any policy or law by claiming a religious justification for their failure to follow either.,,, 

Where a claimant alleges that the government was hostile towards his religious free exercise or that the government did not neutrally apply the law, the reviewing court should apply strict scrutiny to determine whether the government’s enforcement was narrowly tailored to achieve a compelling state interest....

As for Vlaming’s free speech and due process claims, the facts speak for themselves. Under well-established federal precedent, Vlaming’s allegations as pleaded establish that Vlaming was (1) a public employee engaged in curricular speech pursuant to his official job duties, (2) not speaking as a private citizen on a matter of public concern; and (3) had ample notice that his refusal to use Doe’s preferred pronouns was a violation of the School Board’s policies, and the School Board provided him an opportunity to be heard on his discipline.... 

Justice Powell and Chief Justice Goodwyn joined the portions of Justice Mann's opinion that relate to the Virginia Religious Freedom Restoration Act, and the free speech and due process provisions of the Virginia Constitution.

Florida Transgender Teachers Challenge Law That Bars Them from Using Their Preferred Pronouns

Suit was filed this week in a Florida federal district court by three current and former Florida public-school teachers who identify as transgender or non-binary. They challenge a provision of Florida law that bars K-12 teachers from providing students with the teacher's preferred title or pronouns if they do not reflect the teacher's biological sex. The 61-page complaint (full text) in Wood v. Florida Department of Education, (ND FL, filed 12/13/2023) alleges in part:

[The statute] unlawfully discriminates against Plaintiffs on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and Title IX of the Education Amendments of 1972 because whether Plaintiffs may provide to students a particular title or pronoun depends entirely on Plaintiffs’ sex, and Florida has only an invidious basis—not an exceedingly persuasive or even a rational one—for discriminating in this harmful way. It also unconstitutionally restrains Plaintiffs’ speech in violation of the Free Speech Clause of the First Amendment to the U.S. Constitution because it prohibits Plaintiffs from using the titles and pronouns that express who they are, the same way that their colleagues do.

The Hill reports on the lawsuit.

Ohio Legislature Passes Bill on Transgender Treatment of Minors and Transgender Participation on Sports Teams

Yesterday, the Ohio legislature gave final approval to House Bill 68 (full text) which enacts the Saving Ohio Adolescents from Experimentation (SAFE) Act and the Save Women's Sports Act. The bill prohibits physicians from performing gender reassignment surgery or prescribing cross-sex hormones or puberty blockers to minors. It requires mental health professionals to obtain parental consent before diagnosing or treating a minor for a gender-related condition. The bill also prohibits transgender women from participating on women's athletic teams in schools that participate in interscholastic athletics and in public and private colleges. The bill additionally prohibits courts from denying or limiting parental rights because of a parent's decision to raise a child according to his or her biological sex or because the parent declines to consent to the child receiving gender transition services or counseling. The bill now goes to Governor Mike DeWine for his signature. The Cincinnati Enquirer, reporting on the bill, says it is unclear whether the governor will sign the legislation.

UPDATE: On Dec. 29, Governor DeWine vetoed the bill, but offered administrative alternatives. (See subsequent posting for details.)

4th Circuit: Nation of Gods and Earths May Qualify as a Religion

In Greene v. Lassiter, (4th Cir., Dec.13, 2023), the U.S. 4th Circuit Court of Appeals in a pro se suit by a prisoner held that the district court should not have dismissed plaintiff's RLUIPA and the 1st Amendment claims.  At issue is whether Nation of Gods and Earths ("NGE") qualifies as a "religion" for purposes of those provision. The court held that even though plaintiff's complaint said that NGE is a God-centered culture that should not be misconstrued as a religion, this should not be treated as a binding admission.  The court said in part:

Greene’s statement wasn’t an “intentional and unambiguous waiver[] that release[d] the opposing party from its burden to prove the facts necessary to establish the waived conclusion of law.”... To the contrary, Greene has consistently maintained that he asserts rights under RLUIPA and the First Amendment for being denied the ability to practice his faith or belief system, even if NGE eschews the label of “religion.” And in RLUIPA, Congress “defined ‘religious exercise’ capaciously” and “mandated that this concept ‘shall be construed in favor of a broad protection of religious exercise....

Our review of the record shows that there may be at least an open factual question about whether NGE qualifies as a religion for RLUIPA and First Amendment purposes, making summary judgment inappropriate.

Supreme Court Grants Review of FDA's Rules on Prescribing and Distributing Abortion Pill

The U.S. Supreme Court today granted certiorari in two related cases, FDA v. Alliance for Hippocratic Medicine, (Docket No. 23-235, cert. granted 12/13/2023) and Danco Laboratories, LLC v. Alliance for Hippocratic Medicine, (Docket No. 23-236, cert. granted, 12/13/2023). (Order List.) (SCOTUSblog case pages 23-235, 23-236) In the single opinion applying to both cases, the U.S. 5th Circuit Court of Appeals upheld portions of a Texas federal district court's orders that stayed actions taken by the FDA in 2016 and 2021 regarding the administration and distribution of the abortion pill mifepristone. The 2016 action increased the gestational age when the drug can be used and lightened certain other dosage and prescribing restrictions. In 2021, in connection with the Covid epidemic, the FDA removed the in-person prescribing requirement for mifepristone, allowing it to be sent by mail. The court found that doctors have standing to challenge these actions, among other things citing conscience injuries to objecting doctors.  Challenges to two other FDA actions on mifepristone were rejected on standing and statute of limitations grounds. (See prior posting.) 

The Supreme Court denied review in Alliance for Hippocratic Medicine v. FDA, (Docket No. 23-395, cert. denied, 12/13/2023) which sought review of the FDA's original approval of mifepristone in 2000. (SCOTUSblog case page.)

The district court's orders are not currently in effect because in April, the U.S. Supreme Court stayed the orders while appeals work their way through the courts. (See prior posting.) 

SCOTUSblog reports on the Supreme Court's grants of review.

President Hosts White House Hanukkah Reception

On Monday evening, President Biden hosted a Hanukkah reception in the East Room of the White House. AP reports on the reception. The President spoke for ten minutes at the reception (full text of remarks), focusing in large part on the ongoing battle between Israel and Hamas. He said in part:

Most of you know someone directly or indirectly — a family, a friend — that was stolen from you or wounded, traumatized, or called up in the reserves in this last attack in Israel.

As I said after the attack, my commitment to the safety of the Jewish people, the security of Israel, and its right to exist ... as an independent Jewish state is ... just unshakeable.

Folks, were there no Israel, there wouldn’t be a Jew in the world who was safe....

And I make no bones about it.  I’ve had my differences with some Israeli leadership.  I’ve known Bibi for now 51 years.  He has a picture on his desk of he and I when he was a young member of the Israeli ... foreign service, and I was a 32-year-old senator.  And I wrote on the top of it, “Bibi, I love you, but I don’t agree with a damn thing you have to say.”  (Laughter.)

Suit Challenges D.C. Bus Advertising Restrictions

Suit was filed yesterday in a D.C. federal district court against the Washington Metropolitan Transit Authority challenging its guidelines on permissible bus advertising. Plaintiff is an organization seeking to educate about the religious faith of the founders of America and the role of their religion in the drafting of the Constitution. Its ads violate two WMTA guidelines: one which prohibits advertising "intended to influence members of the public regarding an issue on which there are varying opinions" and the other which bars ads "that promote or oppose any religion, religious practice or belief." The complaint (full text) in WallBuilder Presentations v. Clarke, (D DC, filed 12/12/2023) alleges in part:

8. First, Guideline 9’s “issue” advertising ban, applied by WMATA to prohibit the advertisements, violates the First Amendment in a number of ways. It is unconstitutionally vague, announces an unworkable standard that grants unfettered discretion to the decisionmakers, and, consequently, unlawfully discriminates against WallBuilders’ religious viewpoint. While it rejected WallBuilders’ advertisements, WMATA permits a wide array of advertising relating to issues involving “varying opinions” on its public buses and other advertising venues subject to its Advertising Guidelines. WMATA also permits advertisements for other mission-oriented organizations, even advertisements that relate to the faith-based missions of other organizations. 

9. Second, Guideline 12’s ban on religious advertising also infringes WallBuilders’ right to speak on otherwise permissible topics because of the religious viewpoint WallBuilders seeks to express in its advertisements. By refusing to accept advertisements that “promote or oppose any religion, religious practice or belief,” Guideline 12 necessarily results in discrimination against religious viewpoints on a range of otherwise permissible topics.

Daily Caller reports on the lawsuit which was brought on behalf of plaintiffs by the ACLU and First Liberty Institute, as well as the law firm Steptoe, LLP.

Menorah Lighting Triggers Debate Over Secularism In France

The Forward (Dec. 11) reports that a new controversy over the meaning of secularism is raging since last week in France:

The scene of the figurative bonfire was, remarkably, the official home of the president, the Elysée Palace.... [Emmanuel] Macron was awarded the Lord Jacobovits Prize, an award ... to honor individuals who have distinguished themselves in the combat against antisemitism and the defense of the freedom to practice the Jewish faith.

Thursday also happened to be the first night of Hanukkah.... Haim Korsia, the chief rabbi of France, decided to mark the holiday. While Macron, hands clasped in front, stood to one side, Korsia lit both the shamash and first candle while intoning the blessings. Macron also lit a candle, though not for festival of light but instead for the memory of the millions who died in the Shoah.

... [L]ater that evening, Mendel Samama, one of the rabbis who attended the ceremony, released a video of the lighting, which he hailed as “Historique!”

... For the first time since 1905 and the promulgation of the law separating the French state and church — one that affirmed the strict neutrality of the former in religions affairs and relegated the latter to the private sphere — a religious ceremony was held inside the presidential palace. As a result, what was kept alive on that first night was not the miracle of the Jewish holiday, but the meaning of French laicity. The event was, as one commentator declared, “without precedent.”

Almost immediately, the festival of lights was overtaken by critics lighting into Macron for desecrating the secular purity of the French republic.

Texas Supreme Court Reverses Trial Court Order That Allowed an Abortion

 In In re State of Texas, (TX Sup. Ct., Dec. 11, 2023), the Texas Supreme Court directed a trial court to vacate a temporary restraining order that it issued on Dec. 7. The trial court's order (see prior posting) allowed plaintiff Kate Cox who is carrying a fetus diagnosed with a fatal chromosomal condition to obtain an abortion. The Supreme Court said in part:

In this case, the pleadings state that Ms. Cox’s doctor—Dr. Damla Karsan—believes Ms. Cox qualifies for an abortion based on the medical-necessity exception. But when she sued seeking a court’s pre-authorization, Dr. Karsan did not assert that Ms. Cox has a “life-threatening physical condition” or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires.... 

A woman who meets the medical-necessity exception need not seek a court order to obtain an abortion. Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during a pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function. The law leaves to physicians—not judges—both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient....

Dr. Karsan asserted that she has a “good faith belief” that Ms. Cox meets the exception’s requirements. Certainly, a doctor cannot exercise “reasonable medical judgment” if she does not hold her judgment in good faith. But the statute requires that judgment be a “reasonable medical” judgment, and Dr. Karsan has not asserted that her “good faith belief” about Ms. Cox’s condition meets that standard. Judges do not have the authority to expand the statutory exception to reach abortions that do not fall within its text under the guise of interpreting it.

Meanwhile, the Center for Reproductive Rights announced that Ms. Cox has left Texas in order to get health care elsewhere. CNN reports on the Texas Supreme Court's decision.

2nd Circuit: Jewish School Prevented From Purchasing Site Meets Standing and Ripeness Requirements To Sue

In Ateres Bais Yaakov Academy of Rockland v. Town of Clarkston, (2d Cir., Dec. 8, 2023), the U.S. 2nd Circuit Court of Appeals held that an Orthodox Jewish school that was prevented by town officials and a citizens' group from purchasing property on which to build met the standing and ripeness requirements to bring suit under RLUIPA, civil rights laws and state tort law. The court said in part:

ABY argues on appeal that its claims were ripe because nothing more than de facto finality is required for us to review them, and that such finality attached when the Zoning Board informed ABY that it would not entertain its appeal. ABY also argues that the district court erred in holding that ABY failed to satisfy the traceability requirement of Article III standing as to its tortious interference claim because it adequately pleaded that the Town Defendants’ conduct caused its contractual injuries. We agree with ABY and, therefore, we REVERSE the judgement of the district court and REMAND for further proceedings consistent with this opinion.

4th Circuit Hears Oral Arguments on Planned Parenthood Funding Cutoff

The U.S. 4th Circuit Court of Appeals last Friday heard oral arguments (audio of full oral arguments) in Planned Parenthood South Atlantic v. Kerr.  The case, which is on remand from the Supreme Court, involves South Carolina's appeal of an injunction that bars it from terminating Medicaid funding to Planned Parenthood. (See prior posting.) ADF has further background on the case.

Certiorari Denied in Challenge to Conversion Therapy Ban

Today by a vote of 6-3, the U.S. Supreme Court denied review in Tingley v. Ferguson, (Docket No. 22-942, certiorari denied 12/11/2023). In the case the U.S. 9th Circuit Court of Appeals rejected free speech, free exercise and vagueness challenges to Washington state's ban on practicing conversion therapy on minors. (See prior posting.) Justice Thomas filed an opinion dissenting from the denial of certiorari, saying in part:

Under SB 5722, licensed counselors can speak with minors about gender dysphoria, but only if they convey the state-approved message of encouraging minors to explore their gender identities. Expressing any other message is forbidden—even if the counselor’s clients ask for help to accept their biological sex. That is viewpoint-based and content-based discrimination in its purest form. As a result, SB 5722 is presumptively unconstitutional, and the state must show that it can survive strict scrutiny before enforcing it.

The Ninth Circuit attempted to sidestep this framework by concluding that counseling is unprotected by the First Amendment because States have traditionally regulated the practice of medicine....

This case is not the first instance of the Ninth Circuit restricting medical professionals’ First Amendment rights, and without the Court’s review, I doubt it will be the last.

Justice Alito filed a brief opinion dissenting from the denial of review. Justice Kavanaugh also indicated that he would grant the petition for certiorari.

Litigation Over Air Force's Handling of Religious Objections to Vaccine Mandate Dismissed as Moot by Supreme Court

The U.S. Supreme Court today in Kendall v. Doster, (Docket No. 23-154, GVR'd 12/11/2023) (Order List), granted certiorari, vacated the judgment below, and remanded the case to the 6th Circuit with instructions to direct the District Court to vacate its preliminary injunctions as moot. In the case, the 6th Circuit Court of Appeals affirmed a district court's grant of a class-wide preliminary injunction barring the Air Force from disciplining Air Force personnel who had sought religious exemptions from the military's COVID vaccine mandate. (See prior posting.) The case is moot because the vaccine mandate has been rescinded by the military in compliance with Congressional legislation ordering the recission. (See prior posting.) The court similarly remanded as moot two other cases involving other challenges to rescinded federal vaccine mandates.

Recent Articles of Interest

 From SSRN:

• Mark Satta, Political Partisanship and Sincere Religious Conviction, (Brigham Young University Law Review, Vol. 47, No. 4, 2022).
• Stefan McDaniel, Disclosing the Ministerial Exception, (Wake Forest Law Review, Forthcoming).
• Katie R. Eyer, Anti-Transgender Constitutional Law, (Vanderbilt Law Review, Forthcoming).
• Kevin C. Walsh, Res Iusta, Jurisdiction, and Judgment as Everyday Aspects of Thomistic Juridical Realism, (The Concept of Ius in Thomas Aquinas (Loïc-Marie Le Bot & Petar Popovic, eds.) (forthcoming 2024)).
• Samuel D. Brunson, Leave Your Conscience at the Court: Religious Tax Protest Before and After RFRA, (Canopy Forum on the Interactions of Law & Religion, 2023).
• Christian Edmonds, Isaac Backus and the Influence of Evangelical Separationism on the Religion Clauses of the First Amendment, (Creighton Law Review, Vol. 56, No. 4, 2023).
• Robert W. McGee, Religion and Views on the Ethics of Tax Evasion: An Empirical Study, (McGee, Robert W. & Shopovski, Jovan (Eds.); The Ethics of Tax Evasion: New Perspectives in Theory and Practice. (Forthcoming)).
• Felipe Jiménez, Tradition in Constitutional Adjudication, (November 22, 2023).
• Erika Bachiochi & Rachel Morrison, Dobbs, Equality and the Contested Meaning of Women's Rights, (Texas Review of Law and Politics (Fall 2024), Forthcoming).

From SSRN (Muslim Issues and Islamic Law):

• Samiul Hasan, Muslim Majority Countries’ Ratification of the International Human Rights Instruments: Possible Causes and Consequences of the Variations, (November 2, 2023).
• Basel Alameer Hasan, Hijab as a Symbol of Resistance, Discrimination, and Solidarity: Exploring the Complex Intersection of Islamophobia and Identity, (July 28, 2023).
• Mohammed Khaled, Why Interest is Halal in Today's World, (August 13, 2022).
• Bhagyamma G, A Comprehensive Analysis of Protecting Civilians Under International Humanitarian Law and Islamic Law in Afghanistan, (November 4, 2023).
• Muhammad Wajid Munir, Rediscovery and Revival in Islamic Environmental Law: Back to The Future of Nature’s Trust, (Manchester Journal of Transnational Islamic Law & Practice Volume 19 Issue 3, 2023).
• Imran A. Nyazee, Abū Ḥanīfah and the Nine Fields of Islamic Law, (November 7, 2023).
• Muhammad Rafeeq Shinwari, Constitutionalism and Islamic Law: A Critique of M. H. Kamali’s Approach, (Tanazur Research Journal, Vol. 04: No. 02 (July - Sep. 2023)).

From SmartCILP:

• Vincent J. Samar, Finding the Correct Balance between the Free Exercise of Religion and the Establishment Clauses, 21 First Amendment Law Review 109-166 (2023).
• JOURNAL OF LAW AND RELIGION, Vol. 38, Issue 2 (2023).
• Katherine Lemons, Book Review. A Political Theology of Law. Shari'a, Inshallah: Finding God in Somali Legal Politics, by Mark Fathi Massoud, 48 Law & Social Inquiry 1097-1102 (2023).
• James R. Coben, It's in the "Telling" (by Asking): A Passover Analogy to Explain the Enduring Foundational Nature of Carrie Menkel-Meadow's Dispute Resolution Scholarship, 10 Texas A&M Law Review 25-42 (2022).
• Swethaa S. Ballakrishnen, Pluralistic Professionalisms: Religious Identity, Excluded Voice, and a Toolkit for the Periphery, 10 Texas A&M Law Review 89-112 (2022).

2nd Circuit: NY Ban on Firearms in Places of Worship Violates Free Exercise Rights

 Antonyuk v. Chiumento, (2d Cir., Dec. 8, 2023), is a 261-page opinion upholding in part and rejecting in many other respects constitutional challenges to New York's Concealed Carry Improvement Act.  One of the constitutional challenges which the court upheld was a claim by a pastor and his church that applying a firearms ban to non-security personnel in places of worship violates the Free Exercise and Establishment Clauses.  In the case, the pastor alleged that the New York restrictions interfere with his religious duty to protect his congregation by being armed in church and by inviting other congregants with concealed carry licenses to bring their firearms. In accepting that argument, the court said in part:

[T]he CCIA is not neutral because it allows the owners of many forms of private property, including many types of retail businesses open to the public, to decide for themselves whether to allow firearms on the premises while denying the same autonomy to places of worship. By adopting a law that applies differently as to places of worship (alongside the other enumerated sensitive places) than to most other privately owned businesses and properties, the CCIA is, on its face, neither neutral nor generally applicable....

The State provides no explanation for why leaders of religious groups in general, and the Plaintiffs specifically, are less able to “eject persons carrying firearms” than any other property owner who is permitted to make a free choice whether to allow firearms on their premises.... A place of worship that prohibits guns will be equally reliant on the police and the criminal law to eject a person carrying a firearm, whether it does so pursuant to a sensitive place designation or a church policy. Either way, someone will have to call the cops. And if the State has determined that places of worship must be designated as sensitive places because criminal trespass law is not enough to keep out guns, then the decision to regulate places of worship more assiduously than other locations amounts to an unequal pursuit of the interest in preventing gun violence. Such an approach is understandable, but unconstitutional....

Reuters reports on the decision.

U Penn Sued Over Hostile Antisemitic Campus Environment

Suit was filed earlier this week in a Pennsylvania federal district court by two Jewish students alleging that the hostile environment for Jewish students on the University of Pennsylvania's campus violates Title VI of the 1964 Civil Rights Act, the Pennsylvania Unfair Trade Practices and Consumer Protection Law and constitutes a breach of contract. The 84-page complaint (full text) in Yakoby v. University of Pennsylvania, (ED PA, filed 12/5/2023), alleges in part:

1. Penn, the historic 300-year-old Ivy League university, has transformed itself into an incubation lab for virulent anti-Jewish hatred, harassment, and discrimination. Once welcoming to Jewish students, Penn now subjects them to a pervasively hostile educational environment. Among other things, Penn enforces its own rules of conduct selectively to avoid protecting Jewish students from hatred and harassment, hires rabidly antisemitic professors who call for anti-Jewish violence and spread terrorist propaganda, and ignores Jewish students’ pleas for protection. In doing so, Penn has placed plaintiffs and other Jewish and Israeli students at severe emotional and physical risk. 

2. This lawsuit seeks to hold Penn accountable under Title VI of the Civil Rights Act of 1964 for the damages it has caused plaintiffs and for its failure to remedy the hostile environment on its campus. The harassment and discrimination on campus and in the classroom are relentless and intolerable. Plaintiffs and their Jewish peers are routinely subjected to vile and threatening antisemitic slurs and chants such as “Intifada Revolution,” “from the River to the Sea,” “Fuck the Jews,” “the Jews deserve everything that is happening to them,” “you are a dirty Jew, don’t look at us,” “keep walking you dirty little Jew,” “get out of here kikes!” and “go back to where you came from.” Plaintiffs and other Jewish students must traverse classrooms, dormitories, and buildings vandalized with antisemitic graffiti. Subjected to intense anti-Jewish vitriol, these students have been deprived of the ability and opportunity to fully and meaningfully participate in Penn’s educational and other programs.

The Daily Pennsylvanian reports on the lawsuit.

Texas Court Issues TRO Permitting an Abortion; Texas AG Responds

 A Texas state trial court yesterday issued a Temporary Restraining Order prohibiting the Texas Attorney General and the state Medical Board from enforcing Texas' abortion ban against plaintiff physician and her staff for performing a D&E abortion for plaintiff Kate Cox who is carrying a fetus diagnosed with a chromosomal condition that will result in its death before birth or at most in a few days after birth. The court in Cox v. State of Texas, (TX Dist. Ct., Dec. 7, 2023), said in part:

The longer Ms. Cox stays pregnant, the greater the risks to her life. Ms. Cox has already been to three emergency rooms with severe cramping, diarrhea, and leaking unidentifiable fluid.... If she is forced to carry this pregnancy to term, she will likely need a third C-section ... [which would] make it less likely that Ms. Cox would be able to carry another child in the future.

Dr. Karsan has met Ms. Cox, reviewed her medical records, and believes in good faith, exercising her best medical judgment, that a D&E abortion is medically recommended for Ms. Cox and that the medical exception to Texas' abortion bans and laws permits an abortion in Ms. Cox's circumstances. Dr. Karsan, however, cannot risk liability under Texas's abortion bans and laws for providing Ms. Cox's abortion absent intervention from the Court confirming that doing so will not jeopardize Dr. Karsan's medical license, finances and personal liberty.

Responding to the decision, Texas Attorney General Ken Paxton said in a press release:

The Temporary Restraining Order (“TRO”) granted by the Travis County district judge purporting to allow an abortion to proceed will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws. This includes first degree felony prosecutions.... and civil penalties of not less than $100,000 for each violation.... And, while the TRO purports to temporarily enjoin actions brought by the OAG and TMB against Dr. Karsan and her staff, it does not enjoin actions brought by private citizens.... Nor does it prohibit a district or county attorney from enforcing Texas’ pre-Roe abortion laws against Dr. Karsan or anyone else. The TRO will expire long before the statute of limitations for violating Texas’ abortion laws expires.

He also sent a letter (full text) to three hospitals-- which were not parties to the case-- warning that they may be liable for negligently credentialing the physician and failing to exercise appropriate medical judgment if they permit the abortion to be performed in their facility.  Austin-American Statesman reports on the decision.

UPDATE: On Dec. 8, the Texas Supreme Court administratively stayed the trial court's order while it considers the case on appeal.

UN Marks 75th Anniversary of Genocide Convention

Today is the United Nations International Day of Commemoration and Dignity of the Victims of the Crime of Genocide and of the Prevention of This Crime. (UN press release.) It marks Saturday's 75th Anniversary of the 1948 Genocide Convention. The U.S. Commission on International Religious Freedom also issued a press release marking the occasion, saying in part:

USCIRF notes with deep sadness that since the convention’s ratification, millions of people, including those targeted on the basis of religion, have been killed in genocidal campaigns by states and nonstate actors alike.

6th Circuit Hears Arguments on Standing to Challenge Gender Identity Ban in Health Care

On Wednesday, the U.S. 6th Circuit Court of appeals heard oral arguments in American College of Pediatricians v. Becerra. (Audio of full oral arguments.) In the case, a Tennessee federal district court dismissed for lack of standing a challenge to a rule promulgated by the Department of Health and Human Services that barred discrimination on the basis of gender identity in the furnishing of health care. The court also concluded that plaintiffs lacked standing to challenge an HHS rule requiring grant recipients to recognize same-sex marriages. (See prior posting.) 

Appeals Court Hears Religious Challenges to Indiana Abortion Restrictions

On Wednesday, the Indiana Court of Appeals heard oral arguments in Individual Members of the Medical Licensing Board of Indiana et al. v. Anonymous Plaintiff 1. (Video of full oral arguments.) In the case, an Indiana state trial court preliminarily enjoined the state from enforcing Indiana's law restricting abortions against plaintiffs whose religious beliefs permit or require abortions in situations not allowed under Indiana law. (See prior posting.) The trial court also certified the case as a class action. (See prior posting.) Indy Star reports on the oral arguments.

Denial of Permission to Build Grotto Did Not Violate RLUIPA

 In Frederic v. City of Park Hills Board of Adjustment, (KY App., Dec. 1, 2023), a Kentucky state appeals court held that a denying a church permission to build a grotto on its property does not violate the Religious Land Use and Institutionalized Persons Act.   The court said in part:

The application of the ordinance to prohibit construction of the grotto may make practice of religion somewhat more difficult for the church’s congregation or the adherents of the Catholic faith broadly, but the Zoning Ordinance is not inherently inconsistent with their religious beliefs. Accordingly, we find the Park Hills Zoning Ordinance imposes no substantial burden on the religious exercise of any Appellee and, therefore, the ordinance does not constitute a violation of RLUIPA.

Elimination of Religious Exemption from School Vaccination Requirements Is Upheld

 In Milford Christian Church v. Russell-Tucker, (D CT, Dec. 1, 2023), a Connecticut federal district court dismissed 1st and 14th Amendment challenges to Connecticut's removal of its religious exemption from school vaccination requirements. The court said in part:

To be clear, Plaintiffs do argue that Conn. Gen. Stat. § 10-204a is not a neutral law and that it “specifically targeted religious practices that it disagreed with – refusing to take a vaccine because of its ingredients – and it eliminated any tolerance for those religious beliefs by completely foreclosing all avenues for parents who hold religious beliefs against taking vaccines to education their children at al.”... But this argument ... is based on Plaintiffs contention that Defendants’ failure to eliminate medical exemptions and legacy exemptions undermines their stated goal of protecting children’s and community health. ...

Here, the conduct regulated by Conn. Gen. Stat. § 10-204a—requiring vaccination before attending school—is applied to everyone regardless of religious or secular objections. 

The secular conduct permitted—exemptions for medical reasons—does not “undermine[] the government’s asserted interests in a similar way,”... These medical exemptions—because they are limited in number—are not “at least as harmful to the legitimate government interest purportedly justifying it,”....

In We the Patriots...., the Second Circuit held that that “protecting public health is a compelling government interest,”... and that “Act’s repeal of the religious exemption is rationally related to that interest because it seeks to maximize the number of students in Connecticut who are vaccinated against vaccine-preventable diseases.”...

To the extent that mandating the vaccination of students affects the Plaintiffs’ speech rights, it is “an incidental burden” related to a “neutral regulation” for “substantial” public health reasons, an interest not achievable by not requiring vaccinations, despite any “incidental” message it sends Plaintiffs’ about their religion....

Exclusion of Parochial School Students from District's Extracurricular Activities Violates Free Exercise

In Religious Rights Foundation of PA v. State College Area School District, (MD PA, Dec. 1, 2023), a Pennsylvania federal district court refused to dismiss a free exercise challenge to a school district's policy that allowed district students enrolled in a home school program or in a charter school to participate in the district's extracurricular activities, but did not allow parochial school students to participate.  The court said in part:

SCASD presents its policy as one prohibiting private students’ involvement in extracurricular programming and argues that by this definition its policy would be generally applicable. But by carving exemptions out of the definition of a policy, a defendant can make any policy appear generally applicable. This approach is clearly circular for the obvious reason that “every law applies to everything it applies to.” ...

Instead, the policy is more accurately stated at a broader level of generality—only students enrolled in SCASD may participate in its extracurricular activities. That general policy is subject to two categorical exemptions for charter-schooled and homeschooled students....

Where a regime refuses to exempt religious conduct but imposes a categorical exemption for secular conduct which threatens an analogous harm to the stated interest, it is a foregone conclusion that the regime is underinclusive. For if SCASD had a policy narrowly tailored to prevent overcrowding of its extracurricular programming, it would not have had the homeschool and charter school exemptions in the first place.....

Plaintiffs attend parochial schools as a form of religious exercise. Other students attend homeschool and charter school for their own reasons. Under the Free Exercise Clause, religious reasons for not attending public school must be considered at least as important as any secular reason. Plaintiffs have adequately alleged that SCASD’s failure to extend its exemption to students who do not attend its school for religious reasons offends the Free Exercise Clause, as it denies a government benefit on the basis of religious exercise through a law which is not generally applicable....

At one point in its opinion, the court added:

If SCASD proffers different justifications for its scheme of exemptions later in this litigation, such that strict scrutiny does not apply, it might succeed in defending the status quo. But such a justification must actually be grounded in some fact distinguishing homeschooled and charter-schooled students from parochially schooled students, in relation to the risks posed by allowing their participation.

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

RELIGION CLAUSE IS ON A PUBLICATION BREAK UNTIL DECEMBER 7

Christian Non-Profit Cannot Rescind Job Offer Because of Same-Sex Marriage

In McMahon v. World Vision, Inc., (WD WA, Nov. 28, 2023), a Washington federal district court held that a Christian non-profit organization violated Title VII and the Washington Law Against Discrimination when it rescinded a job offer originally made to plaintiff after it learned that she was in a same-sex marriage. Plaintiff had been offered the position of customer service representative which involved telephone cultivation of donor relationships. The court held that the religious employer exemption in Title VII only immunizes religious discrimination by such organizations; it does not immunize them from sex discrimination claims. It also held that the ministerial exception doctrine does not apply to the position offered to plaintiff.

Similarly, the rejected the bona fide occupational qualification defense, saying in part:

Nothing in the record indicates that being in a same-sex marriage affects one’s ability to place and field donor calls, converse with donors, pray with donors, update donor information, upsell World Vision programs, or participate in devotions and chapel.

The court went on to find that both Title VII and the WLAD are neutral laws of general applicability so that only rational basis review is required. Finally the court rejected defendants' free speech and expressive association claims.

British Appeals Court Upholds Preacher's Fraud Conviction For Selling COVID Preventative

In Wiseman v. Rex, (EWCA, Nov. 20, 2023), Britain's Court of Appeal upheld the fraud conviction of the head of the Kingdom Church for selling an oil mixture that he represented would protect against or cure COVID.  According to the court:

5.... Using the name Prophet Climate Wiseman, he described the oil mixture on his website ... as containing cedar wood, hyssop and prayer, and stated that it had “sat upon the altar for 7 days”.

6. The oil was generally referred to as “plague protection oil” or “divine cleansing oil”. Through its use, together with a scarlet yarn, it was said that the special ingredients “act like an invisible barrier” and that “coronavirus and any other deadly thing will pass over” the user....

8. The prosecution case was that promotion and sale of the oil mixture was little more than exploitative commercial opportunism disguised as an article of faith....

9. The defence case was that the appellant had promoted and sold the oil mixture in good faith. It was aimed at people who believed in God, and when the oil mixture was combined with prayer it would work to protect against and cure coronavirus.... He believed in the truth of claims made by him in respect of the oil mixture....

Appellant was given a suspended prison sentence, a 130 hour community service requirement and a costs order equivalent to more than $76,000 (US).  Appellant's unsuccessful appeal focused primarily on the judge's instructions to the jury and on statements by counsel during closing arguments.  PA Media reports on the decision.

EU Court OK's Neutral Ban on Employees Wearing Any Symbol of Belief

In Request for a preliminary ruling under Article 267 TFEU from the tribunal du travail de Liège (Labour Court, Liège, Belgium), (EUCJ, Nov. 28, 2023), the European Union Court of Justice, interpreting Council Directive 2000/78 (Equal Treatment in Employment) held:

an internal rule of a municipal authority prohibiting, in a general and indiscriminate manner, the members of that authority’s staff from visibly wearing in the workplace any sign revealing, in particular, philosophical or religious beliefs may be justified by the desire of the said authority to establish, having regard to the context in which it operates, an entirely neutral administrative environment provided that that rule is appropriate, necessary and proportionate in the light of that context and taking into account the various rights and interests at stake....

The Court also issued a press release summarizing the decision.

Jewish Groups Sue Over Berkeley Law Student Organizations' Antisemitic Policies

Suit was filed yesterday in a California federal district court against the University of California at Berkely and Berkeley Law School challenging growing antisemitic discrimination and harassment on campus. The complaint (full text) in Louis D. Brandeis Center, Inc. v. Regents of the University of California, (ND CA, filed 11/28/2023), alleges that policies of law student organizations violate the Equal Protection and Free Exercise Clauses, violates the §1981 right to contract and violates Title VI of the 1964 Civil Rights Act. The complaint alleges in part:

4. In spite of the recognition of anti-Zionism as a form of anti-Semitism, no fewer than 23 Berkeley Law student organizations have enacted policies to discriminate against and exclude Jewish students, faculty, and scholars. For example: 

• To be a member of Women of Berkeley Law, the Queer Caucus at Berkeley, or the Asian Pacific American Law Students Association, Jewish students must accede to the groups' support of the Boycott Divestment and Sanctions movement, which seeks to dismantle the modern State of Israel; 

• In order to volunteer to provide pro bono legal services through a number of Berkeley Law Legal Services organizations, Jewish students must undergo a "Palestine 101" training program that emphasizes the illegitimacy of the State of Israel; 

• And to speak to any of these student organizations, invited speakers must first repudiate Zionism under a bylaw that prohibits speakers who hold Zionist views (the "Exclusionary Bylaw"). In fact, the Berkeley Journal of Gender, Law, and Justice, goes one step further, prohibiting Zionists not only from speaking to its members but from publishing in its pages. 

5. Under these policies, Jewish students, faculty, and guest speakers must deny a central part of their cultural, ancestral heritage and a fundamental tenet of their faith in order to be eligible for the same opportunities Berkeley accords to others....

118.  Specifically, Defendants have selectively chosen not to enforce Berkeley's all-comers policy and Policy on Nondiscrimination against student organizations in the Law School and the undergraduate campus that have discriminated against or excluded Jewish members of the school community from participating in organizations, programs, and activities. For similar reasons, Defendants' decision not to enforce the Policy on Nondiscrimination against these groups where they refuse to accept Jewish speakers is unlawful.,,,

Politico reports on the lawsuit.

2nd Circuit: 1st Amendment Free Exercise Claim Requires Only "Burden", Not "Substantial Burden" On Religion

In Kravitz v. Purcell, (2d Cir., Nov. 27, 2023), the U.S. 2nd Circuit Court of Appeals held that unlike suits under RFRA, an inmate alleging a 1st Amendment violation of his religious freedom need not show a "substantial burden" on his sincere religious beliefs, but only a "burden." The suit was brought by an inmate whose observance of the Jewish holiday of Shavuot was impaired by harassment of prison correctional officers. As described by the court:

The admissible evidence shows that Kravitz was unable to observe his religious holiday due to the abusive conduct of corrections officers. On the first night, corrections officers obstructed all communal prayer and threw paper bags at the inmates, “laughing and say[ing], here is your kosher meal. You Jew, blah, blah, and F-U.” ... On the second night, an officer interrupted Kravitz’s prayer after approximately thirty seconds, stating, “I don’t want to hear that. You need to stop and get eating that food. I got things to do.” ... 

In vacating the district court's grant of summary judgment, the court said in part:

When we are considering government policies that are not neutral and generally applicable—that is, policies that discriminate against religion rather than burden it incidentally—there is no justification for requiring a plaintiff to make a threshold showing of substantial burden. “The indignity of being singled out for special burdens on the basis of one’s religious calling is so profound that the concrete harm produced can never be dismissed as insubstantial...." 

... The district court erred in deciding that the burden on Kravitz’s observance was insufficient to establish an infringement of his right to free exercise under the First Amendment. The district court could reach that conclusion only by deciding that thirty seconds of prayer or a blessing over bread suffices for Shavuot observance. But what the observance of Shavuot entails is beyond the competence of a federal court.

Attorney Fee Award to Freedom from Religion Foundation of $342K Recommended.

In another demonstration of the high cost to governmental entities of litigating First Amendment claims, a Texas federal magistrate judge in Freedom from Religion Foundation v. Abbott, (WD TX, Nov. 27, 2023) has recommended an award of attorneys' fees to FFRF of $342,566 (plus costs of $3,957). At issue in the case was the removal of FFRF's "Bill of Right Nativity Exhibit" from the Texas state capitol. The case twice made its way to the 5th Circuit Court of Appeals (see prior postings 1, 2).

Kapparot Protesters Lose Suit Against City

In Karlan v. City of Los Angeles, (CA App., Nov. 27, 2023), a California state appellate court affirmed the dismissal of a lawsuit brought by protesters who objected to an Orthodox synagogue's pre-Yom Kippur kapparot ritual in which chickens are killed and their carcasses are discarded.  According to the court:

The complaint alleged the City abused its discretion and endorsed the exercise of religion by refusing to enforce Penal Code section 597, which prohibits the intentional and malicious killing of animals, against Kapparot practitioners. The complaint also alleged violations of the Tom Bane Civil Rights Acts ... and the Ralph Civil Rights Act of 1976... against Captain Vernon for his threats to arrest appellants if they used a projector or amplified sound during their protest....

The order appellants seek in this case—“to compel [the City] ‘to make enforcement decisions without regard to religion’”—would control the manner in which the City exercises its discretion to enforce criminal laws. This type of order is barred under the rule codified in Civil Code section 3369....

Appellants here fail to demonstrate how the City acted unreasonably and arbitrarily. Appellants admit their purpose in filing this action was to obtain a ruling as to whether “religious motivation [can lawfully] create[ ] an exemption from prosecution” under Penal Code section 597. Appellants’ pursuit of a definitive ruling means the issue remained unsettled at the time the City made its choice not to enforce the law....

... Appellants identify no allegation in which Captain Vernon threatened them with violence beyond his threats of arrest. Without more, appellants have failed to plead sufficient facts to establish violations under the Bane and Ralph Act....

Appellants finally contend ... violation of the Establishment Clause..... Raised for the first time on appeal, appellants contend they have taxpayer standing to assert this claim. Appellants’ failure to present this theory in the trial court and adequately brief the issue on appeal has forfeited the argument....

Australian State's Religious Vilification Act Takes Effect

As reported by Law and Religion Australia, the New South Wales Religious Vilification Act 2023 (full text) which was enacted in August took effect on November 11. The law provides in part:

It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for or severe ridicule of—

(a) a person on the ground the person— (i) has, or does not have, a religious belief or affiliation, or (ii) engages, or does not engage, in religious activity, or

(b) a group of persons on the ground the members of the group— (i) have, or do not have, a religious belief or affiliation, or (ii) engage, or do not engage, in religious activity.

Among the exceptions in the law are: 

[A] public act, done reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of an act or matter.