Texas AG Seeks to Liquidate Catholic Agency Providing Services to Migrants

 A legal battle is underway between Annunciation House, a Catholic agency serving migrants and refugees in El Paso, and Texas Attorney General Ken Paxton who accuses the agency of sheltering migrants who have entered the country illegally. On Feb. 7, Paxton demanded that Annunciation House turn over various records within one day. The next day, Annunciation House filed suit in a Texas state trial court seeking a declaratory judgment and temporary restraining order. The complaint (full text- Scroll to Exhibit 6) in Annunciation House, Inc. v. Paxton, (TX Dist. Ct., filed 2/8/2024), in part asks the court to determine:

whether Defendants’ unexplained demand for sensitive information infringes on AHI’s constitutional rights, including religious liberty, association, and equal protection, and the privacy rights of third parties, including their sensitive medical, legal, and personal information.

The same day, the court issued a TRO (full text, scroll to Exhibit 7) temporarily barring the Attorney General's office from enforcing its Request to Examine Annunciation House's records. On Feb. 20, the Attorney General filed a counter claim (full text), seeking, as a sanction for failing to produce the requested documents, to bar Annunciation House from transacting business in Texas and asking for appointment of a receiver to wind up Annunciation House's affairs. In a press release announcing the filling, the Attorney General's office said in part:

Texas Attorney General Ken Paxton has sued Annunciation House, a nongovernmental organization (“NGO”), to revoke their registration to operate in Texas. The Office of the Attorney General (“OAG”) reviewed significant public record information strongly suggesting Annunciation House is engaged in legal violations such as facilitating illegal entry to the United States, alien harboring, human smuggling, and operating a stash house....

The chaos at the southern border has created an environment where NGOs, funded with taxpayer money from the Biden Administration, facilitate astonishing horrors including human smuggling....

In a Feb. 21 press release, Annunciation House responded, saying in part:

The AG has now made explicit that its real goal is not records but to shut down the organization. It has stated that it considers it a crime for a Catholic organization to provide shelter to refugees.

The Attorney General’s illegal, immoral and anti-faith position to shut down Annunciation House is unfounded. Annunciation House has provided hospitality to hundreds of thousands of refugees for over forty-six years. It is a work recognized by the Catholic Church and is listed in the National Catholic Directory. Annunciation House has done this work of accompaniment out of the scriptural and Gospel mandate to welcome the stranger. Annunciation House’s response to the stranger is no different from that of the schools who enroll children of refugees, the clinics and hospitals who care for the needs of refugees, and the churches, synagogues, and mosques who welcome families to join in worship.

Texas Tribune reports on the litigation.

Certiorari Denied in Case of Jurors Disqualified Because of Religious Beliefs

Today the Supreme Court denied review in Missouri Department of Corrections v. Finney, (certiorari denied, 2/20/2024). In the case a Missouri state appellate court (full text of state court opinion) upheld a trial court's striking of three potential jurors for cause. The suit involved claims against the Department of Corrections by a lesbian employee alleging sex discrimination and hostile work environment. The potential jurors were disqualified because of their strongly-held religious views that homosexuality is a sin. Homosexuality was an important issue in the case. Justice Alito filed a Statement respecting the denial of certiorari indicating that were it not for a complicating state law issue in the case, he would have voted to grant review, saying in part:

Before us, the Department of Corrections argues that these for-cause dismissals were unconstitutional, and I agree that the Court of Appeals’ reasoning raises a very serious and important question that we should address in an appropriate case. The judiciary, no less than the other branches of State and Federal Government, must respect people’s fundamental rights, and among these are the right to the free exercise of religion and the right to the equal protection of the laws. When a court, a quintessential state actor, finds that a person is ineligible to serve on a jury because of his or her religious beliefs, that decision implicates fundamental rights.

New Report on Antisemitism in America Released

Last week, the American Jewish Committee released its report The State of Antisemitism in America 2023. The Report includes a Survey of American Jews, a Survey of the General Public, a Comparison of the Attitudes of the two groups, and a Methodology Report. AJC CEO Ted Deutch, commenting on the Report, said in part:

With nearly half of American Jews reporting they changed their behavior in the past year because of fear of antisemitism, we need to take action – now. AJC’s report also found that over the last year, 4 in 10 Jewish college students have felt the consequences of antisemitism, with one-in-five saying they have been excluded from a group or event because they are Jewish. This should alarm everyone especially with the dramatic increase of antisemitic activity on college campuses that has continued into 2024.

[Thanks to Burt Shifman for the lead.]

9th Circuit: On Supervised Release, Must Have Secular Alternative To 12-Step Program Requirement

 In United States v. Rourke, (9th Cir., Feb. 15, 2024), the U.S. 9th Circuit Court of Appeals held that it was "plain error" for a district court to impose as a condition of supervised release, without a non-religious alternative, that defendant live at and participate in a 12-step based halfway house if his probation officer requires it. The court said in part:

A twelve-step program is “a distinctive approach to overcoming addictive, compulsive, or behavioral problems,” which “asks each member to ... recognize a supreme spiritual power, which can give the member strength.” .... We have previously held that compelling a parolee to participate in an “Alcoholics Anonymous 12 step program” violated the Establishment Clause....

... [R]emand to the district court to modify the condition is required. So long as the revised condition explicitly notes Rourke’s right to object to the imposition of religious-based treatment and to be offered a secular alternative, no Establishment Clause violation will result.

Title VII Challenge to Denial of Vaccine Exemption Survives Motion to Dismiss

In Prodan v. Legacy Health, (D OR, Feb. 12, 2024), an Oregon federal district court refused to dismiss a Title VII religious discrimination claim brought by two former employees of Legacy Health who were denied religious exemptions from the Covid vaccine mandate for healthcare workers. The court said in part:

... [C]ourts appear to be in agreement that a general allegation of religious conflict without identifying a conflicting belief is insufficient to survive a motion to dismiss....

... [However] allegations of an allegedly religious belief coupled with an assertion that the COVID-19 vaccine conflicts with that belief is enough to plead a prima facie case of religious discrimination.

 In the case, one plaintiff alleged that her body is a temple of God and taking the Covid vaccine violates her conscience. The second defendant alleged that her body is a Temple of the Holy Spirit and refraining from injecting it with harmful chemicals and unknown substances honors the Temple.

Alabama Supreme Court: Wrongful Death Law Covers Destruction of Frozen Embryos

In LePage v. Center for Reproductive Medicine, P.C., (AL Sup. Ct., Feb. 16, 2024), the Alabama Supreme Court held, by a vote of 7-2, that Alabama's Wrongful Death of a Minor Act covers the negligent destruction of frozen embryos created during IVF treatment and kept in a clinic's cryogenic nursery. The destruction occurred when a patient wandered into the fertility clinic, removed several embryos and then dropped them when his hands were freeze burned.  Justice Mitchell's majority opinion said in part:

[Defendants] ask us to recognize an unwritten exception for extrauterine children in the wrongful-death context because, they say, our own precedents compel that outcome....

... [Defendants and Alabama Medical Association as amicus] assert that treating extrauterine children as "children" for purposes of wrongful-death liability will "substantially increase the cost of IVF in Alabama" and could make cryogenic preservation onerous.... 

While we appreciate the defendants' concerns, these types of policy-focused arguments belong before the Legislature, not this Court.... Here, the text of the Wrongful Death of a Minor Act is sweeping and unqualified.  It applies to all children, born and unborn, without limitation.  It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy.  That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding "unborn life" from legal protection.  Art. I, § 36.06, Ala. Const.

Chief Justice Parker filed a concurring opinion focusing on Art. I of the Alabama Constitution which provides that declares "it is the public policy of this state to recognize and support the sanctity of unborn life...." The Chief Justice said in part:

... [T]he theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself. Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life -- that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.

Justice Shaw, joined by Justice Stewart filed a concurring opinion. 

Justice Mendheim filed an opinion concurring in the result, saying in part:

In my judgment, the main opinion's view that the legal conclusion is "clear" and "black-letter law" is problematic because when the Wrongful Death of a Minor Act was first enacted in 1872, and for 100 years thereafter, IVF was not even a scientific possibility....

Ultimately ... we must be guided by the language provided in the Wrongful Death of a Minor Act and the manner in which our cases have interpreted it. Under those guideposts, today's result is correct. However, the decision undoubtedly will come as a shock in some quarters of the State. I urge the Legislature to provide more leadership in this area of the law given the numerous policy issues and serious ethical concerns at stake....

Justice Sellers filed an opinion dissenting in part, saying in part:

To equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented, intellectual sophistry, which I am unwilling to entertain.

Justice Cook filed a 56-page dissenting opinion, saying in part:

...   I believe the main opinion overrules our recent Wrongful Death Act caselaw that requires "congruence" between the definition of "person" in Alabama's criminal-homicide statutes and the definition of "minor child" in the Wrongful Death Act.  Both the original public meaning and this recent caselaw indicate the same result here -- that the Wrongful Death Act does not address frozen embryos. 

Moreover, there are other significant reasons to be concerned about the main opinion's holding.  No court -- anywhere in the country -- has reached the conclusion the main opinion reaches. And, the main opinion's holding almost certainly ends the creation of frozen embryos through in vitro fertilization ("IVF") in Alabama....

1819 News reports on the decision.

[Thanks to Scott Mange for the lead.]

Recent Articles of Interest

From SSRN:

• Kevin C. Walsh, Judicial Power and Potential Unconstitutionality: A Scholastic Perspective, (Catholic University Law Review, Forthcoming).
• Adrian Vermeule, Enriching Legal Theory: Response to the Symposium on Common Good Constitutionalism, (Harvard Journal of Law and Public Policy, Vol. 46, No. 3, 2023).
• Taiwo Hassan, Surrogacy Within Islamic Succession Law: Unraveling the Inheritance Rights of Involved Parties, (January 25, 2024).
• Rangita de Silva, Customs, Culture, Courts, and Constitutions: Negotiating the Balance on Gender Equality, (U of Penn Law School, Public Law Research Paper No. 24-07 (2024).
• Shaul Daniel Sharf, The Basic Law of Nationality - a Mechanism for Relieving Inter-Religious Tension in Israel, (January 31, 2023).
• Hans-Bernd Schaefer & Rok Spruk, Islamic Law, Western European Law and the Roots of Middle East’s Long Divergence: a Comparative Empirical Investigation (800-1600), (January 25, 2024).
• Abu Hayyan Saeed, The Objections of Atheists and Orientalists to the Holy Quran and Their Answers…,(January 18, 2024).

From SmartCILP:

• Ashton P. Jones-Doherty, Morally Regulatable Lives: Corporate Sovereignty, the Rise of Burwell v. Hobby Lobby, and the Ironic Demise of the Walt Disney Company's Reedy Creek Improvement District,55 Arizona State Law Journal 507-560 (2023).
• Alex McFarlin, Religious Freedom (for Most) Restoration Act: A Critical Review of the Ninth Circuit's Analysis in Apache Stronghold, 2023 Utah L. Rev. 1163-1188 (2023).

Greek Parliament Approves Same-Sex Marriage

The Guardian reports that Greece's Parliament on Thursday, by a vote of 176- 76, legalized same-sex marriage, making Greece the first Christian Orthodox country to do so. The bill has been strongly supported by Greece's Prime Minister Kyriakos Mitsotakis. However, in a provision criticized by LGBT advocacy organizations, the bill denies same-sex couples access to parenthood through surrogacy. The entire bill was strongly opposed by the Orthodox Church, According to The Guardian:

Orthodox bishops had threatened to excommunicate lawmakers who voted for the measure while the leader of the far-right Spartans party had said the law would “open the gates to hell and perversion”.

Recission of Covid Mandate Did Not Totally Moot Navy SEALs' RFRA Challenge

 In U.S. Navy SEALs 1-26 v. Austin, (ND TX, Feb. 14, 2024), a Texas federal district court held preliminarily that the rescission of the military's Covid vaccine mandate only partially mooted a suit under the Religious Freedom Restoration Act brought by Navy SEALs who were denied a religious accommodation. The court said in part:

Plaintiffs’ supplemental briefing satisfies the Court that, “[w]hile the Mandate may be gone, the effects of that Mandate and the discriminatory treatment the Class Members were subject to because of the Mandate still linger.” That is because Defendants have announced no changes to its overarching religious accommodations process. According to Plaintiffs, this allegedly “sham” process is what enabled the coercive and discriminatory treatment of the Class Members while their accommodation requests sat unadjudicated. The Mandate simply served as the catalyst that unveiled the problems with this broader process during the pandemic. These problems include: (1) indefinitely sitting on requests for religious accommodation; (2) foregoing the required individualized assessments, citing standardized policy memos (even if outdated) to satisfy the compelling interest requirement, and using boilerplate statements to suffice for demonstrating that the Navy’s action is the least restrictive means; (3) permitting discrimination and coercive tactics to pressure servicemembers to forego their religious beliefs; (4) authorizing Navy leadership to dictate denial of all requests without considering the individual circumstances of the requests and current conditions or facts; (5) permitting coercion and retaliation against commanding officers who recommend approval of religious accommodations despite the chain of command’s desire that requests be denied; and (6) prohibiting resubmission of denied requests and updates to pending requests due to a change of job, location, or other relevant circumstances.

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

House Members Protest Invited Guest Chaplain

Yesterday, 26 members of the U.S. House of Representatives Freethought Caucus sent a letter (full text) to House Speaker Mike Johnson and the House Chaplain questioning why California-based pastor Jack Hibbs was invited to deliver an opening prayer in the House of Representatives.  The letter reads in part:

The undersigned members write to express our concerns about Speaker Johnson’s sponsorship of Pastor Jack Hibbs as the Guest Chaplain of the House of Representatives. Pastor Hibbs is a radical Christian Nationalist who helped fuel the January 6th insurrection and has a long record of spewing hateful vitriol toward non-Christians, immigrants, and members of the LGBTQ community. He should never have been granted the right to deliver the House’s opening prayer on January 30, 2024.  

In the days leading up to the attack on the Capitol, Hibbs echoed Donald Trump’s election fraud lies and inflamed his followers by preaching that January 6th would go down in history alongside the War of Independence and the War of 1812. By preaching that God had anointed the Trump administration and could still intercede to save Trump’s presidency on January 6th, Hibbs advanced a religious permission structure that led to violence by those who believed any means were justified to carry out what they viewed as God’s plan....

Hawaii Chabad Rabbi Sues Over Zoning Law

Suit was filed this week in a Hawaii federal district court by a Chabad rabbi contending that Hawaii County's residential zoning Code violates the First Amendment, the Hawaii Constitution and RLUIPA. The complaint (full text) in Chabad Jewish Center of the Big Island v. County of Hawaii, (D HI, filed 2/13/2024), alleges in part:

 Hawai‘i County Code § 25-5-3(a)(9) allows “[m]eeting facilities” to operate “in [a] RS district” sans any restriction.  Conversely, Hawai‘i County Code § 25-2-61(b)(3) permits “[c]hurches, temples and synagogues” to operate in a RS district “only if a use permit is obtained for use.”  And, critically, use permits are required not only for “[c]hurches, temples and synagogues” themselves but also for the “meeting facilities for churches, temples, synagogues and other such institutions[] in RS . . . districts.” ...  In other words, in residential use districts in Hawai‘i County, meeting facilities are permissible so long as they’re secular....

It is the County’s policy and practice to prosecute supposed violations of Hawai‘i County Code § 25-2-61 only when the violating party hosts Jewish gatherings.  The County’s enforcement decisions are neither neutral nor generally applicable, as other religious and non-religious meetings of comparable size have occurred unmolested in the zoning district of Rabbi Gerlitzky’s home.  The County’s policy of selective enforcement against the Plaintiffs, if left unchecked, will effectively shutter one of the now only two orthodox Jewish gathering spaces on the Big Island.  This policy is enabled by the County’s practice of ratcheting up recurring fines against the Plaintiffs.

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

Wisconsin Legislature Passes Parental Bill of Rights; Governor Promises Veto

On Tuesday, the Wisconsin Senate gave final legislative passage to AB 510 (full text), known as the Parental Bill of Rights. The bill gives 16 different rights to parents and guardians of school children.  Among these are the right to determine a child's religion; the right to determine the names and pronouns used for the child at school; the right to notice when a controversial subject will be taught or discussed in the child's classroom; and the right to opt the child out of a class or instructional materials based on religion or personal conviction. The Wisconsin ACLU criticized the bill, saying in part:

This bill disguises classroom censorship as parental rights, enabling politicians to require the forced outing, misgendering, and deadnaming of trans and nonbinary students. It also inhibits educational instruction on race, gender, sexual orientation, and other important topics that impact all of us.

According to a report on the bill by The Center Square, Governor Tony Evers has said he will veto the bill.

Former Editor of Yiddish Children's Magazine Sues Rabbinical Courts and Others Under RICO and Sherman Act

Suit was filed last month in a New York federal bankruptcy court against several rabbinical courts, rabbis, and other defendants charging Sherman Act and RICO violations. Plaintiff was the co-owner of a Yiddish language children's magazine who claims his former partner conspired with others to destroy his business. (Full text of 93-page complaint in In re Paneth v. Reiner, (ED NY Bkrptcy, filed 1/17/2024)). Shtetl has published a lengthy summary of the complaint, saying in part:

... Paneth claims that investor David Reiner used money and influence to sway leading Haredi rabbinical courts to coerce Paneth into a rabbinic arbitration process over disputes relating to the operation and management of Kindlein magazine.

... Ultimately, the complaint says, the rabbinical courts and Reiner collectively violated the Sherman Antitrust Act by colluding to put Paneth out of business and thereby eliminate Reiner’s only competition. They also sought to deprive Paneth of any employment opportunities and to ostracize him from the Hasidic world, the complaint says.

European Court Says Ban on Halal and Kosher Slaughter Does Not Violate Human Rights Convention

 In Affaire Executife van de Moslims van Belgie et Autres c. Belgique, (ECHR, Feb. 13, 2024) [full opinion available only in French], the European Court of Human Rights, in a Chamber Judgment, held that Belgium had not violated Article 9 (freedom of religion) or Article 14 (prohibition of discrimination) of the European Convention on Human Rights when two regions in the country eliminated the exemption permitting ritual slaughter of animals without stunning. The decrees had the effect of prohibiting Halal and kosher slaughter of animals in the two regions. An English language press release from the Court describes the Court's opinion, in part, as follows:

The Court found that there had been an interference with the applicants’ freedom of religion and that this was prescribed by legislation, namely the Flemish and Walloon decrees. 

As to whether the interference pursued a legitimate aim, the Court observed that this was the first time that it had had to rule on the question whether the protection of animal welfare could be linked to one of the aims referred to in Article 9 of the Convention.

Article 9 of the Convention did not contain an explicit reference to the protection of animal welfare in the exhaustive list of legitimate aims that might justify an interference with the freedom to manifest one’s religion.

However, the Court considered that the protection of public morals, to which Article 9 of the Convention referred, could not be understood as being intended solely to protect human dignity in the sphere of inter-personal relations. The Convention was not indifferent to the living environment of individuals covered by its protection and in particular to animals, whose protection had already been considered by the Court. Accordingly, the Convention could not be interpreted as promoting the absolute upholding of the rights and freedoms it enshrined without regard to animal suffering. 

Emphasising that the concept of “morals” was inherently evolutive, the Court did not see any reason to contradict the CJEU and the Constitutional Court, which had both found that the protection of animal welfare was an ethical value to which contemporary democratic societies attached growing importance....

The Court noted that both decrees were based on a scientific consensus that prior stunning was the optimum means of reducing the animal’s suffering at the time of slaughter. It saw no serious reason to call this finding into question.

The Court further observed that the Flemish and Walloon legislatures had sought a proportionate alternative to the obligation of prior stunning, as the decrees provided that, if the animals were slaughtered according to special methods required by religious rites, the stunning process used would be reversible, without causing the animal’s death....

Church of England Faces Controversy Over Insincere Conversions to Gain Asylum

 The Telegraph reports on the controversy in Britain over whether the Church of England has been misled into converting Muslim migrants whose only motivation is to claim asylum on the basis of a threat of persecution if they return to their home countries as Christians. The paper reported in part:

The Rt Revd Dr Guli Francis-Dehqani, the Bishop of Chelmsford, conceded it was “very difficult” to look into the hearts of converts and be 100 per cent certain that they were genuine.

She acknowledged there had been a “small number” of alleged abuses but said the clergy “do the best they can” and it was “ultimately” the job of immigration tribunals and the Home Office to assess and vet the validity of asylum claims.

Her comments come after robust denials by the Church of England of claims by senior MPs and whistleblowers that clergy have been routinely supporting “bogus” asylum claims and enabled a “conveyor belt” of thousands of asylum seekers to convert.

As reported by Law & Religion UK, questions about this issue were raised in Parliament last week, which in turn led the Archbishop of Canterbury last week to issue a statement (full text) in response, saying in part:

For refugees and those seeking asylum, we simply follow the teaching of the Bible which is to care for the stranger.

It is the job of the Government to protect our borders and of the courts to judge asylum cases. The Church is called to love mercy and do justice....

Recent Articles and Books of Interest

From SSRN:

• Andrew Coan, Dobbs v. Brown, (J. Am. Con. Hist., Forthcoming Vol. 2 (Winter 2024)).
• Kent Greenfield, Using the First Amendment to Save Race-Conscious College Admissions, (Forthcoming, 4 American Journal of Law and Equality __ (2024)).
• Chad G. Marzen, Insurance Law and Religious Belief, (February 5, 2024).
• Rabiat Akande, An Imperial History of Race-Religion in International Law, (American Journal of International Law. 2024;118(1):1-40).
• Clark D. Cunningham & Ute Römer-Barron, Four Reasons the Supreme Court Should Reconsider Its Article III Standing Doctrine, (Forthcoming, Ohio State Law Journal Online, v. 85, 2024).
• Elias Neibart, M.A. v. Rockland County Department of Health, 53 F.4th 29 (2d Cir. 2022), (Harvard Law Review, Vol. 137, No. 3, p. 1050, 2024).
• Liz Tobin-Tyler, The Past and Future of Parental Rights: Politics, Power, Pluralism, and Public Health, (Virginia Journal of Social Policy and the Law, Vol. 30, No. 3, 2023).
• Mihir Rajamane & Vibha Swaminathan, Navigating Reservations for Transgender Persons Under the Indian Constitution, (in TransForming Rights: How Law shapes Transgender Lives, Community and Identity in India (Forthcoming)).
• Toheeb Alimi, Islamic Finance: an Overview, (January 12, 2024).

From SmartCILP:

• Louis Lopez, The Supreme Court's 2021–22 Term in Review, 37 A.B.A. Journal of Labor & Employment Law 1-24 (2023).
• Kenji Yoshino, Rights of First Refusal, 137 Harvard Law Review 244-289 (2023).
• Ronna Greff Schneider, School Matters, 92 University of Cincinnati Law Review 1-11 (2023).
• Erwin Chemerinsky, Education, the First Amendment and the Constitution,92 University of Cincinnati Law Review 12-30 (2023).

Recent and Forthcoming Books:

• John Witte, Jr. & Rafael Domingo, The Oxford Handbook of Christianity and Law, (Oxford University Press, Dec. 2023).
• Maurice Samuels, Alfred Dreyfus: The Man at the Center of the Affair, (Yale University Press, Feb. 2024).
• Russell Sandberg, Rethinking Law and Religion, (Edward Elgar Publishing, June 2024).

Expressed Hostility to Religious Belief of Vaccine Exemption Applicant Did Not Violate 1st Amendment

 In Hancock v. Oregon Health and Science University, (D OR, Feb. 8, 2024), an Oregon federal district court dismissed without prejudice a claim by a lecturer at the University that her 1st Amendment rights were violated in the process of denying her claim of a religious exemption from the University's Covid vaccine mandate.  Plaintiff claimed that various of the defendants:

... expressed overt hostility to the religious beliefs of Plaintiff by declaring Plaintiff's religious beliefs 'personal moral choices and/or conscientious objection rather than a tenet of a religious faith,' merely her 'right to have religious freedom or conscientiously object to the vaccine' rather than a sincerely held religious belief and 'concerns over vaccine safety or content' not a sincerely held religious belief but rather a 'religious argument' and 'inconsistent with proven facts.'

The court held that mere expression of hostility toward plaintiff's religious beliefs does not create tangible harm that can be remedied, and so plaintiff lacks standing. It went on to hold that even if plaintiff had standing, she did not adequately allege that defendants substantially burdened her religious beliefs. The court said in part:

At best, the Court identifies only two allegations that could plausibly be related to coercion: (1) "Defendant OHSU's request for additional information was meant to belittle and shame Plaintiff for her religious beliefs and convince her she did not possess the religious beliefs she possessed"; and (2) "Board Defendant's [sic] placed pressure on Plaintiff to conform to the prevailing approved religion by proclaiming which religious beliefs were worthy of religious exceptions and which were not."...

... [N]either allegation addresses what effect this alleged pressure had on plaintiff.

Finally, the court concluded that defendants are entitled to qualified immunity. 

Canadian Court Upholds Denial of Tax Exemption for Island Owned by Shinto Organization

In Matsuri Foundation of Canada v. British Columbia (Assessor of Area #01 - Capital), (BC Sup. Ct., February 2, 2024), the Supreme Court of the Canadian province of British Columbia upheld the denial of a property tax exemption sought by the Matsuri Foundation of Canada.  The court summarized its decision as follows:

Matsuri sought, and the Board denied, a property tax exemption for the lands and improvements that comprise Knapp Island, British Columbia, as a “place of public worship” pursuant to s. 15(1)(d) of the Taxation (Rural Area) Act, R.S.B.C. 1996, c. 448 [Rural Area Taxation Act].

Knapp Island is a 31-acre island located just off Vancouver Island’s Saanich Peninsula near Swartz Bay. Matsuri is a registered Canadian charity with the purpose of the advancement of the Shinto religion. Matsuri owns Knapp Island.

With respect to the 2022 taxation year, the [Property Assessment Appeal] Board found that the “place of public worship” exemption was not applicable to Knapp Island because Matsuri had not established that the public were invited to, and had access to, Knapp Island, and that its principal use was therefore not for public worship. The Board found that to the extent that Knapp Island was used for worship, that worship was private, and not public.

Matsuri accepts the Board’s factual finding on this issue. However, Matsuri argues that the Board should nevertheless have found that Knapp Island was entitled to an exemption on fairness and equity grounds, when compared to other similar properties in British Columbia.

The Assessor argues that the Board’s decision should be upheld, and that the evidence does not support a tax exemption on equity grounds.

I find that the Board’s analysis fully addressed the equity issue in this case, and properly denied the requested exemption, and I would therefore dismiss the appeal.

CTV News reports on the decision.

British Employment Tribunal Holds That Anti-Zionist Views Are a Protected Philosophical Belief

In Miller v. University of Bristol, (Bristol Empl. Trib., Feb. 5, 2024), a British Employment Tribunal held that anti-Zionist views held by a Professor of Political Sociology at the University of Bristol qualify as a philosophical belief that is protected under Equality Act 2010, Sec. 4 and 10. In a 108-page, 495 paragraph opinion, the Tribunal describes the professor's claims:

He contends that since at least March 2019 he was subject to an organised campaign by groups and individuals opposed to his anti-Zionist views, which was aimed at securing his dismissal. Further, he alleges that the respondent failed to investigate or support him in respect of this campaign and instead subjected him to discriminatory and unfair misconduct proceedings which culminated eventually in his summary dismissal.

In reaching its conclusion that the professor's beliefs were protected, the court applied the criteria from an Employment Appeals Tribunal decision, Grainger Plc v. Nicholson, one of which is that the belief "must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others."

The professor contended "that his anti-Zionism is not opposition to or antipathy towards Jews or Judaism," and apparently the University conceded that none of his actions or statements were antisemitic.

The court, in finding that the professor's beliefs are protected, said in part:

... [W]hile those in opposition to the claimant's views could logically and cogently argue that antisemitism is why Zionism exists in the first place, it is not for the tribunal to inquire into the validity of either belief.... 

The tribunal is aware that there are very strong opposing beliefs and opinions to those held and expressed by the claimant. However, ... the paramount guiding principle in assessing any belief is that it is not for the court or tribunal to inquire into its validity.

In a press release commenting on the court's decision, the University said in part:

 After a full investigation and careful deliberation, the University concluded that Dr Miller did not meet the standards of behaviour we expect from our staff in relation to comments he made in February 2021 about students and student societies linked to the University. As a result and considering our responsibilities to our students and the wider University community, his employment was terminated. 

Law & Religion UK has a lengthier discussion of the decision.

5th Circuit, 11-6, Denies En Banc Rehearing on Availability of Damages Under RLUIPA

In Landor v. Louisiana Department of Corrections and Public Safety, (5th Cir., Feb. 5, 2024), the U.S. 5th Circuit Court of Appeals, by a vote of 11-6, denied an en banc rehearing in a RLUIPA suit seeking damages from officials in their individual capacities. Judge Clement, joined by 8 other judges, filed an opinion concurring in the denial, saying in part:

Officials at the Raymond Laborde Correctional Center knowingly violated Damon Landor’s rights in a stark and egregious manner, literally throwing in the trash our opinion holding that Louisiana’s policy of cutting Rastafarians’ hair violated the Religious Land Use and Institutionalized Persons Act before pinning Landor down and shaving his head. Landor clearly suffered a grave legal wrong. The question is whether a damages remedy is available to him under RLUIPA. That is a question only the Supreme Court can answer.

Judge Ho, joined by Judge Elrod, filed a dissent to the denial. Judge Oldham, joined in whole or part by 5 other judges, also filed a dissenting opinion, saying in part:

The panel held RLUIPA does not allow prisoners to sue state prison officials in their individual capacities for money damages. With all due respect to my esteemed and learned colleagues, that result cannot be squared with Tanzin v. Tanvir, 592 U.S. 43 (2020). Tanzin held that individuals can sue for money damages under the Religious Freedom Restoration Act of 1993 (“RFRA”). The operative provisions of RFRA and RLUIPA are in haec verba, and both the Supreme Court and ours routinely interpret the statutes in parallel. Today, unfortunately for Landor, our court pits the statutes against one another. I respectfully dissent.

Montreal Archdiocese Sues for Exemption from End-of-Life Care Requirements

 In Canada, the Archdiocese of Montreal has filed suit in a Quebec trial court seeking an exemption from amendments to the province's Act Respecting End-of-Life Care which require all palliative care homes to provide "medical aid in dying." The Archdiocese operates a 12-bed palliative care home in Montreal. The full text of the complaint in Les Oeuvres de Charite de L'Archeveque Catholique Romain de Montreal v. Procureur General du Quebec, (Couer Superieure, filed Feb. 2, 2024) is available only in French. An English Language Press Release from the Archdiocese describes the lawsuit in part::

To our profound dismay, the amendment to the Act respecting end-of-life care and other legislative provisions, SQ 2023, c. 15 (the new Act), effective since December 7, 2023, has regretfully prohibited palliative care homes from excluding "medical aid in dying" from their services.  

A consequence of this new law is that actions we find morally unacceptable may now occur on our property.....  

In essence, the Appeal is simply seeking permission for palliative care homes, similar to health professionals, to "refuse to administer medical aid in dying based on their personal convictions and [to] refuse to participate in its administration for the same reason."  

We strongly believe that by mandating all palliative care homes to provide "medical aid in dying" without considering their mission, values, and the support of their community, the new law significantly undermines the exercise of the right to freedom of religion and conscience, as well as the right to the peaceful enjoyment and free disposal of one's property, guaranteed by the Canadian Charter and the Quebec Charter.   

Palliative care homes, given that they operate as community organizations and not public institutions, should retain the ability to define their own mission and the services they are willing to offer, as was the practice until recently....

Canadian Press reports on the lawsuit.

Satanic Temple Loses Challenge to Idaho Abortion Bans

In The Satanic Temple v. Labrador, (D ID, Jan. 31, 2024), an Idaho federal district court dismissed several challenges to Idaho's statutes criminalizing abortion filed by The Satanic Temple which has created its own Abortion Ritual.  The court describes plaintiff's claims:

The Satanic Temple (“TST”) filed the instant case arguing Defendants actions have: (1) effected a regulatory taking of the economic value of a pregnant woman’s womb in violation of the Fifth Amendment; (2) effectively made pregnant women into slaves in violation of the Thirteenth Amendment; (3) given unconstitutional preferences to rape victims in violation of the Fourteenth Amendment; and (4) violated Idaho’s religious freedom statutes.

After finding that TST lacks standing to bring the suit, the court goes on to also reject TST's first three claims on the merits and concludes that TST, which asked to file an amended complaint to substitute a free exercise claim for its claim under Idaho's Exercise of Religious Freedom Act, should do this by fining a new lawsuit rather than an amended complaint.

Idaho Attorney General Labrador issued a press release announcing the decision which he titled "Attorney General Labrador Defeats Satan." LifeNews reporting on the decision said that lawyers for TST plan an appeal to the 9th Circuit.

2nd Circuit: Delivering Inmate's Ramadan Meals Too Early Burdened His Free Exercise Rights

In Long v. Sugai, (2d Cir., Feb. 5, 2024), the U.S. 2nd Circuit Court of Appeals held that a Hawaii prison sergeant may have violated plaintiff inmate's free exercise rights by delivering his Ramadan meals 4 hours before sundown.  The court said in part:

The question in the case before us is not whether serving cold, unappetizing, and possibly unsafe food is cruel and unusual punishment.  Rather, it is whether serving such food unconstitutionally burdened Long’s free exercise of his religion....

... [B]y the time Long could eat his evening meal at about 7:30 p.m., the food was often inedible and potentially unsafe, and, if eaten, exacerbated his stomach ulcers.  We take judicial notice of the fact that some food cannot safely sit at room temperature for four hours....

... [D]elivery of Long’s evening meal at 3:30 p.m. during Ramadan substantially burdened his free exercise of religion.  The district court should have evaluated the four Turner factors to determine whether the burden was justified.  Because the court did not conduct that analysis, we remand to allow it to do so.  The district court also did not conduct a qualified immunity analysis.  If the court concludes, after conducting the Turner analysis, that the burden was not justified, our remand allows the court to conduct a qualified immunity analysis. ...

The court affirmed the district court's dismissal of free exercise claims against another sergeant.

Recent Articles of Interest

From SSRN:

• Ekaterina Ryzhkova, Arab Constitutionalism: Lessons from History, (October 11, 2023).
• Eric Ruben, Scientific Context, Suicide Prevention, and the Second Amendment After Bruen, (Minnesota Law Review, Forthcoming).
• Andrew Coan, Too Much, Too Quickly?, (Arizona Legal Studies Discussion Paper No. 24-04 (2024).
• Liz Tobin-Tyler, The Past and Future of Parental Rights: Politics, Power, Pluralism, and Public Health, (Virginia Journal of Social Policy and the Law, Vol. 30, No. 3, 2023).
• Deborah L. Brake, The New Gender Panic in Sport: Why State Laws Banning Transgender Athletes Are Unconstitutional, (ConLawNOW, Vol. 15, p. 33, 2024).
• Jeff Sovern, Is Discrimination Unfair?, (U of Maryland Legal Studies Research Paper No. 2024-02 (2024).
• Norman Ho, Confucian Legal Hypotheticals, (The Journal of Comparative Law, Vol. 18, No. 2 (2023)).
• Andrew Godwin & Rosemary Teele Langford, Corporations, Financial Services and Charities: Regulatory Complexity and Coherence, ((2023) 39 Australian Journal of Corporate Law 51).

From SSRN:

• Stephen L. Mikochik, Pope Francis and Civil Unions, 20 Ave Maria Law Review 96-104 (2022).
• J. Kirkland Miller & Maureen M. Milliron, Ownership of Property and Adverse Possession from the Catholic Perspective: You've Got to Have (Good) Faith!, 20 Ave Maria Law Review 125-159 (2022).
• Marc O. DeGirolami, The New Disestablishments, 33 George Mason University Civil Rights Law Journal 71-102 (2022).

New Jersey Man Pleads Guilty to Hate Crimes Against 5 Orthodox Jews

In a Feb. 1 press release, the U.S. Attorney's Office for the district of New Jersey announced that 29-year old Dion Marsh has pleaded guilty to violations of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act and to a count of carjacking for his assault on 5 men on April 8, 2022.  According to a statement by the U.S. Attorney:

This defendant violently attacked five men, driving a car into four of them, stabbing one of them in the chest, and attempting to kill them, simply because they were visibly identifiable as Orthodox Jews....

Sentencing is set for June 11.

Good News Clubs Sue for Access to Hawaii Schools

Suit was filed two weeks ago in a Hawaii federal district court against the Hawaii Department of Education and four school districts in which schools have denied permission for Good News Clubs to use various school facilities for after-school programs. The complaint (full text) in Child Evangelism Fellowship of Hawaii, Inc. v. Hawaii State Department of Education, (D HI, filed 1/23/2024), alleges that the denials violate plaintiff's free speech, free exercise, Establishment Clause and equal protection rights. Plaintiff has also filed a Motion for Preliminary Injunction accompanied by a Memorandum of Law supporting the Motion (full text). Liberty Counsel issued a press release announcing the filing of the lawsuit.

Questions of Fact Remain in Challenge to Application Process for Prison Chaplaincy Supervisor

 In Bridges v. Prince Georges County, Maryland, (D MD, Feb. 1, 2024), a Maryland federal district court refused to grant summary judgment for either plaintiff or the defendants in a suit by a Muslim chaplain alleging that his 1st Amendment rights were violated by the application process for a paid supervisory position at the county detention center.  At issue was a "Statement of Applicant's Christian Faith" that was part of the application form created by Prison Ministry of America (PMA) which, under contract with the county, was to provide a non-denominational chaplain supervisor for the jail.  After finding that plaintiff had standing and that PMA was a state actor during the hiring process, the court said in part:

Because a reasonable jury could find the Statement of Christian Faith to be “a religious test” ..., summary judgment cannot be granted in favor of Defendants on this count.  However, Defendants’ assertion that the Statement was optional creates a sufficient dispute of material fact as to render summary judgment inappropriate in Plaintiff’s favor, as well....

Regardless of whether the Statement of Christian Faith was mandatory or not, the inclusion of such a statement, especially given that it appeared on its face to be required, clearly employed a non-neutral policy as it specifically allowed for participation by Christians and no others.  This non-neutral practice, then, could be viewed by a reasonable jury as placing a burden on Plaintiff’s religious expression by denying him the ability to apply for a job that he otherwise would have been able to seek, due to his religion....  As such, a reasonable jury could find that this burdened Plaintiff’s freedom of expression and that the policy was not narrowly tailored to meet a compelling government interest, and thus summary judgment cannot be granted in favor of Defendants.  However, the question of whether the inclusion of the Statement of Christian Faith in the application burdened Plaintiff’s religious exercise, given Defendants’ assertion that the Statement of Christian Faith was not actually required, creates a genuine dispute of material fact, and, therefore, summary judgment cannot be granted in favor of Plaintiff, either.

European Court: Azerbaijan's Ban on Foreign Educated Imams Violates European Convention

In Babayev v. Azerbaijan, (ECHR, Feb. 1, 2024), the European Court of Human Rights held that Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) is violated by Azerbaijan's law prohibiting citizens of the country who obtained their religious education abroad from conducting Islamic religious rites and rituals in Azerbaijan. In awarding petitioner, who had been sentenced to three years in prison for violating the law, damages of 6000 Euros, plus costs and expenses, the court said in part:

75.... The Court notes that there is no indication whatsoever that the Islamic religious rites and rituals that the applicant conducted contained any expressions or constituted any actions, such as, for example, seeking to spread, incite or justify hatred, discrimination or intolerance, or otherwise undermine the ideals and values of a democratic society....

76.... The Court is aware of the fundamental importance of secularism in Azerbaijani statehood and the respondent State’s attachment to religious tolerance. However, it cannot accept the Government’s argument that the applicant’s criminal conviction was necessary in a democratic society on account of the State’s fight against religious extremism and its protection of democratic values....

78.... [I]t is apparent that in so far as the restrictions did not regulate the content of the religious expression or the manner of its delivery, they were not fit to protect society from religious extremism or any other forms of intolerance...

Biden Speaks at National Prayer Breakfast

Yesterday, the National Prayer Breakfast, sponsored by the National Prayer Breakfast Foundation, was held in Statuary Hall in the Capitol building in Washington D.C. President Biden delivered remarks (full text) at the Breakfast, saying in part:

I also see the trauma, the death, and destruction in Israel and Gaza.  And I understand that the pain and passion felt by so many here in America and around the world.

We value and pray for the lives taken and for the families left behind, for all those who are living in dire circumstances — innocent men, women, and children held hostage or under bombardment or displaced, not knowing where their next meal will come from or if it will come at all.

Not only do we pray for peace, we are actively working for peace, security, dignity for the Israeli people and the Palestinian people.

Sponsorship of the National Prayer Breakfast-- which has been held annually since 1953-- has become more complicated, as explained in reporting on this year's event by Religion News Service:

The refashioned National Prayer Breakfast is a scaled-down version of an event that has drawn thousands to the Washington Hilton and was previously hosted by a group often known as “The Family,” but that called itself the International Foundation.

Since last year, there have been two events, one sponsored by the new National Prayer Breakfast Foundation, after years of controversy following the 2018 breakfast and accusations that the gathering of national and international political and religious leaders had become vulnerable to espionage.

The second event, dubbed the NPB Gathering, and held again this year at the Hilton, drew about 2,000 people from more than 125 countries, including heads of state, and featured a livestream of Biden’s remarks....

Muslim Employee Recovers $70,000 From Employer Who Refused Grooming Rule Accommodation

The EEOC announced on Wednesday that it has entered a consent decree in its lawsuit against Blackwell Security Services, Inc.  The EEOC's lawsuit charged that the company violated Title VII by failing to give an exemption from its no-beard policy to a Muslim employee who worked as a concierge in Chicago, even though granting the accommodation would have imposed no cost and not created an operating burden on Blackwell.  According to the EEOC:

To avoid losing his job, the employee complied and shaved his beard, causing him significant distress....

Under the consent decree resolving the lawsuit, Blackwell will pay $70,000 in compensation to the now-former employee. Blackwell will also provide training to relevant management employees on federal laws prohibiting religious discrimination and will report any additional complaints of religious discrimination to the EEOC for the decree’s duration.

Delaware School Enters Resolution Agreement with DOE Over Antisemitism Complaint

In a January 29 press release, the U.S. Department of Education Office for Civil Rights announced an agreement with the Red Clay, Delaware, Consolidated School District resolving a complaint about antisemitic harassment of a student. The press release sets out a number of incidents of harassment by fellow students. It then finds:

While the district responded to most harassing incidents the student experienced, these responses were often haphazard; were inconsistently enforced as well as inconsistently reflected in district documentation; did not consistently include effective or timely steps to mitigate the effects of the harassment on the student or other students; and did not appear to respond to escalating and repeated incidents.

OCR's findings are set out at greater length in its formal letter to the school district.

The school district has agreed (full text of Resolution Agreement) to reimburse the student's parents for past counseling, academic and therapeutic service costs from the incidents. It has agreed to widely publicize an anti-harassment statement; implement a student informational program; revise school policies; engage in training; audit complaints and incidents; and conduct an assessment of school climate.

JTA, reporting on the agreement, says:

The agreement marks the first time in nine months that the education department announced the closure of an antisemitism-related investigation filed under Title VI....

National Guard General Seeks $1.6M Damages for Antisemitic Harassment and Termination

A suit charging antisemitic discrimination was filed last week in a California state trial court by a retired Brigadier General in the Air National Guard against his former supervisor as well as against the state of California, the California Military Department and California Governor Gavin Newsom seeking $1.6 million in damages and injunctive relief. The complaint (full text) in Magram v. Beevers, (CA Super. Ct., filed 1/24/2024), alleges in part:

This case is an action for Religious Discrimination, Harassment, and Wrongful Termination in violation of California Government Code § 12940, and the California Fair Employment and Housing Act (“FEHA”) arising out of Magram’s 37-plus years of employment with the California Air Guard and United States Air Force, which includes 14-plus years as a full time officer on State Active Duty with the CMD. Beevers discriminated against Magram by harassing and wrongfully terminating Magram because of Magram’s Jewish faith, Jewish heritage, and Magram’s complaints about Beevers’ anti-Semitic discrimination and harassment. Beevers’ discrimination against Magram violated FEHA and California public policy. The State of California, CMD, and Governor Newsom were aware of Beevers’ anti-Semitism, Beevers’ anti-Semitic campaign, and Beevers’ retaliation against Magram. The State California, CMD and Governor Newsom facilitated and ratified Beevers’ anti-Semitism and Beevers’ anti-Semitic campaign against Magram.

Stars and Stripes reports on the lawsuit.

Mother Sues School for Socially Transitioning Her Daughter

Suit was filed yesterday in a New York federal district court by the mother of a middle school student who contends that her free exercise and due process rights were violated when the school began to socially transition her daughter by using a masculine name and plural pronouns in referring to her without informing the mother of the school's action.  The complaint (full text) in Vitsaxaki v. Skaneateles Central School District, (ND NY, filed 1/31/2024), alleges in part:

233. Mrs. Vitsaxaki was raised in a Catholic household, but after marrying Mr. Vitsaxakis, joined the Greek Orthodox Church...

262. Mrs. Vitsaxaki’s free-exercise rights include the right to raise her children in accordance with her religious beliefs and the right to direct her children’s education and upbringing consistent with her religious beliefs, including on identity, sex, gender, and fundamental questions of existence like how her children should identify themselves.... 

263. By referring to Jane with a masculine name and incorrect pronouns without notifying Mrs. Vitsaxaki or seeking her consent and by concealing these actions from Mrs. Vitsaxaki, Defendants substantially burdened Mrs. Vitsaxaki’s ability to exercise her religion....

266. During the three-month (at a minimum) period that Defendants were concealing from Mrs. Vitsaxaki the actions taken to socially transition Jane, Mrs. Vitsaxaki was unable to exercise her religion by choosing to educate Jane in an environment that would not have undermined her religious beliefs.

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

Recorded Statements Made to Church Leaders and Pastor Not Privileged

In State of Florida v. Gonzalez, (FL App., Jan. 31, 2024), a Florida state appellate court held that a video recording of a meeting between defendant and some 14 to 20 church leaders (including the pastor) did not meet the statutory requirements for the communication to be privileged. The court reversed the trial court's grant of defendant's motion to suppress the video at defendant's trial for sexually molesting the church pastor's 12-year-old granddaughter. The pastor called the meeting and instructed defendant "that he would need to explain to the church leaders the details of what he had done and that he would need to ask for forgiveness." The court said in part:

We reject the State's attempt to frame the communication here as being made only to S.S. [the victim's mother] and to the other church leaders.  Having viewed the video and reading the transcript therefrom, we conclude that M.S., Gonzalez's pastor, was among the recipients of Gonzalez's communication and, therefore, that part of section 90.505(2) was met. However, the privilege requires more than just a statement being made to a member of the clergy.  The dispute in this case centers on the other requirement: that the communication was confidential.  And that part of the test requires that the communication be "made privately for the purpose of seeking spiritual counsel or advice from the member of the clergy in the usual course of his or her practice or discipline and not intended for further disclosure except to other persons present in furtherance of the communication."  § 90.505(1)(b)....

18 Year Prison Sentence Imposed for Firebombing Church

The Department of Justice announced that on Monday an Ohio federal district court sentenced Aimenn D, Penny to 18 years in prison followed by 3 years of supervised release after Penny pleaded guilty to violation of the Church Arson Prevention Act and using fire and explosives to commit a felony. DOJ described the violations:

According to court documents, on March 25, 2023, Penny made Molotov cocktails and drove to the Community Church of Chesterland (CCC), in Chesterland, Ohio. Angered by the church’s plan to host two drag events the following weekend, Penny threw two Molotov cocktails at the church, hoping to burn it to the ground. Through Penny’s guilty plea, he admitted to using force through fire and explosives, intending to obstruct CCC congregants in their enjoyment and expression of their religious beliefs.

Court Rules On Class Action Certification of Claims by Religious Objectors to Covid Vaccine

 In Chavez v. San Francisco Bay Area Rapid Transit District, (ND CA, Jan. 28,2024), a California federal district court refused to certify as a class action a suit on behalf of employees of the Transit District (BART) who were denied a religious exemption or accommodation from BART's Covid vaccine mandate. The court concluded that the disparate factual issues underlying the claims under Title VII and California's Fair Employment and Housing Act means that common issues of law or fact do not predominate. The court said in part:

Plaintiffs submitted nearly as many systems of belief and grounds for objection as they did applications. Whether or not any one request rests on a bona fide religious belief presents an individual inquiry that requires the consideration of evidence pertaining only to the response in question....

BART’s undue hardship showing—likely to be the dispositive issue in this action—also rests on individual factual issues....

It similarly concluded that common issues did not predominate in plaintiffs' First Amendment Free Exercise Claim, saying in part:

Plaintiffs cite myriad scripture and personal experiences, CDC VARS data and concerns regarding health consequences ... among others, as grounds for objection. Many identify non-vaccination as a core religious tenant, some characterize their decision as a “personal choice,” a number discuss medical concerns.... [T]he need to determine whether plaintiffs have met the bona fide religious belief threshold generates “an unmanageable variety of individual . . . factual issues,” and forecloses on class certification....

Finally, the court concluded that plaintiffs also failed to meet the requirement that a class action is the superior way to adjudicate the claims.

In UnifySCC v. Cody, (ND CA, Jan. 29, 2024), a different Northern District of California judge certified a class action (except as to damages) on behalf of 463 individuals who obtained a religious exemption from the Covid vaccine mandate of San Jose County but who, because they were in high risk roles, were placed on administrative leave until reassignments or transfers to lower risk positions became available.  The court ruled:

This Class is certified with respect to the following common questions regarding Defendants’ liability: 

1. Whether Defendants violated Plaintiffs’ right to free exercise and equal protection of the law by prioritizing medical exemptions over religious exemptions in high-risk settings; 

2. Whether Defendants’ Risk Tier System violated the Free Exercise Clause and Equal Protection Clause because it relegated Plaintiffs and the Class members to unpaid leave but allowed some unvaccinated or non-boosted employees to continue to work; 

3. Whether the County’s religious exemption and/or accommodation procedure was either non-neutral or not generally applicable such that it constitutes an individualized assessment ... and is thereby subject to strict scrutiny; 

4. Whether Defendants provided Individual Plaintiffs and the Class members with reasonable accommodation as required under FEHA and Title VII; and 

5. Whether Defendants violated the Establishment Clause by demonstrating hostility towards religion. 

The Class is NOT certified with respect to questions of damages.

Florida Official Rules That Changing Gender Marker On Driver's License Constitutes Fraud

In a January 26 Memorandum (full text), the Executive Director of the Florida Highway Safety and Motor Vehicles Department has rescinded the rule allowing transgender individuals to change the gender marker on their driver's licenses.  He ruled that gender reflected on one's driver's license must reflect one's sex as "determined by innate and immutable biological and genetic characteristics." The Memorandum went on to say:

[M]isrepresenting one's gender, understood as sex, on a driver license constitutes fraud ... and subjects the offender to criminal and civil penalties, including cancellation, suspension, or revocation of his or her driver license....

Newsweek reports on these developments. 

Court Decides 7 Cases of Health Care Employees' Refusal to Receive Covid Vaccine

 A Delaware federal district court judge yesterday handed down opinions in seven lawsuits against the same medical center that terminated employees who requests for religious exemptions from the Covid vaccine mandate were denied. In 5 of the cases, the court refused to dismiss plaintiffs' Title VII failure to accommodate claims because plaintiffs had plausibly alleged a sincere religious belief and that their objections to the Covid vaccine were related to that belief. Aiken v. Bayhealth Medical Center, Inc., (D DE, Jan. 25, 2024); Hernandez v. Bayhealth Medical Center, Inc., (D DE, Jan. 25, 2024); Massotti v. Bayhealth Medical Center, Inc., (D DE, Jan. 25, 2024); Proud v. Bayhealth Medical Center, Inc., (D DE, Jan. 25, 2024); White v. Bayhealth Medical Center, Inc., (D DE, Jan. 25, 2024). In 2 cases, the court concluded that plaintiffs' objections to the vaccine were not plausibly connected to a sincerely held religious belief. McDowell v. Bayhealth Medical Center, Inc., (D DE, Jan. 25, 2024); Osborne v. Bayhealth Medical Center, Inc., (D DE, Jan.25, 2024). Each opinion details the religious claim asserted by plaintiff.

International Religious Freedom Summit Being Held In D.C.

This year's International Religious Freedom Summit is being held today and tomorrow at the Washington Hilton Hotel in Washington, D.C.  Co-chaired by Sam Brownback, former Ambassador at Large for International Religious Freedom and Katrina Lantos Swett, President of the Lanto Foundation for Human Rights, and featuring several members of Congress as Honorary Co-Chairs, the event brings together dozens of non-profits and NGO's to discuss current issues impacting religious liberty around the world. Here is the full program for the event.

Pennsylvania Supreme Court Casts Doubt on Abortion Exclusion From State Medicaid Coverage

In Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, (PA Sup. Ct., Jan. 29, 2024) [Majority Opinion], the Pennsylvania Supreme Court remanded to the trial court for strict scrutiny review a challenge to the constitutionality of Pennsylvania's ban on the use of state Medicaid funds for abortion services (except in the case of rape, incest or threat to the life of the mother). Six of the Court's 7 Justices participated in the case.  Justice Donohue's opinion (joined by Justice Wecht) sets out the conclusions of a majority of the Justices in a 219-page opinion. The majority overruled its 1985 decision in Fischer v. Department of Public Welfare that had upheld the ban.  The majority concluded that that pregnancy-related distinctions may violate the state Constitution's Equal Rights Amendment (Art. I, Sec. 28), saying in part:

... [T]he Fischer Court ignored that reproductive functions, by definition, have historically been the primary basis for the distinction between men and women, i.e., physical characteristics that make one a member of the sex. The text of Section 28 does not support the exception created by Fischer that equality of rights can be denied or abridged based on a physical characteristic that makes a person a member of the male or female sex....

 ... [W]e overrule Fischer’s interpretation of the Equal Rights Amendment. We further conclude that when a statute is challenged as violative of Section 28, a sex-based distinction is presumptively unconstitutional, and it is the government’s burden to rebut the presumption with evidence of a compelling state interest in creating the classification and that no less intrusive methods are available to support the expressed policy.

The majority also overruled Fischer's holding that the state Constitution's equal protection provision (Art. I, Sec. 26) does not prevent the state from conferring a benefit unequally.  The majority said in part:

... [A] court, presented with a challenge to a legislative classification that touches on the exercise of a civil right on the basis that it violates Article I, Section 26, must determine whether the classification operates neutrally with regard to the exercise of that right. If it does not, the court shall then conduct a commensurate means-end review.

Writing only for himself and Justice Wecht, Justice Donohue also contended that that the state Constitution substantively protects a woman's right to make reproductive decisions, including abortion.

Justice Wecht also filed a 71-page concurring opinion discussing additional issues. Chief Justice Todd filed a 17-page opinion dissenting in part, concluding that the Fischer decision is binding precedent. Justice Dougherty filed a brief opinion concurring in part, agreeing with the majority's overruling of Fischer. Justice Mundy filed a 24-page opinion dissenting in part, concluding that the funding ban should be upheld on the basis of the Fischer case and strongly criticizing the majority's holding that Art. I, Section 26 requires funding neutrality.

Philadelphia Inquirer reports on the decision.

Recent Articles of Interest

From SSRN:

• Robert T. Miller, Commonsense Morality, (339 First Things 15 (2024)).
• Reva B. Siegel & Mary E. Ziegler, Abortion-Eugenics Discourse in Dobbs: A Social Movement History, (2 J. Am. Con. Hist. (2024, Forthcoming).
• Daniel B. Rice, Civic Duties and Cultural Change (January 15, 2024).
• Martin David Kelly, Challenging Common Good Constitutionalism, (January 22, 2024).
• Ekaterina Ryzhkova, Vector to the East: The Islamic Legal Path, (January 3, 2024).
• Brandon Marc Higa & Joshua D. Faumuina, Japan’s Same-Sex Marriage Cases (2021-2023) & the Fight for Freedom of Marriage in Japan, (Asian-Pacific Law & Policy Journal Vo. 25:2 (Forthcoming)).
• David S. Schwartz, Making Sense of 303 Creative: A Free Speech Solution in Search of a Problem, (Univ. of Wisconsin Legal Studies Research Paper No. 1792 (2024).
• Scott Skinner-Thompson, Solidifying Students' Right to Gender Expression, (Boston University Law Review, Vol. 104 (2024).
• Libby Adler, On the Why of Same-Sex Marriage in Cuba, (17 FIU Law Review 485 (2023)).

From SmartCILP:

• Frederick Schauer, Disestablishing the Establishment Clause, [Abstract], (2022 Supreme Court Review 219-242).
• Michael Asimow, Jewish Lawyers in American Popular Culture, (21 Virginia Sports & Entertainment Law Journal 1-22 (2022)).

President Issues Statement on International Holocaust Remembrance Day

Today President Biden issued a Statement (full text) calling attention to International Holocaust Remembrance Day which occurs tomorrow (the anniversary of the 1945 liberation of Auschwitz-Birkenau concentration camp by Soviet armed forces). The Statement reads in part:

Tomorrow ... we join nations around the world and pause to mourn one of the darkest chapters in human history, when six million Jews were systematically targeted and murdered by the Nazis and their collaborators in the Holocaust during the 1930s and 1940s. We also grieve the Roma, Sinti, Slavs, people with disabilities, LGBTQI+ individuals, racial minorities, and political dissidents who were abused or killed. And we honor the courage of survivors and the heroism of people who bravely stood up to the Nazis, risking everything to save innocent lives.

This year, the charge to remember the Holocaust, the evil of the Nazis, and the scourge of antisemitism is more pressing than ever. On October 7 Hamas terrorists unleashed pure, unadulterated evil on the people of Israel....

In the aftermath of Hamas’s vicious massacre, we have witnessed an alarming rise of despicable antisemitism at home and abroad that has surfaced painful scars from millennia of hate and genocide of Jewish people. It is unacceptable. We cannot remember all that Jewish survivors of the Holocaust experienced and then stand silently by when Jews are attacked and targeted again today. Without equivocation or exception, we must also forcefully push back against attempts to ignore, deny, distort, and revise history. This includes Holocaust denialism and efforts to minimize the horrors that Hamas perpetrated on October 7, especially its appalling and unforgiveable use of rape and sexual violence to terrorize victims.

Presumption of Discrimination in Virginia Fair housing Law Held Unconstitutional

 In Carter v. Virginia Real Estate Board, (VA Cir. Ct., Jan. 24, 2024), a Virginia state trial court held unconstitutional a portion of Virginia's Fair Housing Law (§36-96.3) that provides:

The use of words or symbols associated with a particular religion, national origin, sex, or race shall be prima facie evidence of an illegal preference under this chapter that shall not be overcome by a general disclaimer. However, reference alone to places of worship, including churches, synagogues, temples, or mosques, in any such notice, statement, or advertisement shall not be prima facie evidence of an illegal preference....

In the case, a realtor's e-mails contained a signature line reading "For Faith and Freedom, Jesus Loves You, and with God all things are Possible." Her e-mails also contained a personal statement reading "For God so loved the world that He gave his only begotten Son, that whosoever believeth in Him should not perish but have everlasting life. John 3:16". The Virginia Real Estate Board began an investigation of the realtor based on these religious statements. The court invalidated this portion of the Fair Housing Law, saying in part:

[This section of the] Virginia Fair Housing Law ... infringes the natural right of individuals to express their identity and, as such, stands in sharp contrast to the freedom of Virginians and Americans to express their identity that lie at the heart of the First Amendment ... and the Virginia Statute of Religious Freedom. Moreover, the statute restricts individual expression with a sweeping generalization so broad that any expression of individual identity related to religion, national origin, sex, or race is deemed tantamount to a desire to engage in unlawful discrimination.... Virginia's presumption of animus in the Fair Housing Law inequitably and overbroadly inhibits those rights, and as such, it fails to give the breathing space that First Amendment freedoms require....

ACLJ issued a press release announcing the decision.

County Revises Policy on Religious Head Coverings in Booking Photos in Settlement of Suit by Muslim Woman

In a Settlement Agreement (full text) in Johnston v. Rutherford County, Tennessee, (MD TN, 1/18/2024), the county has agreed to pay $100,000 in damages to a Muslim woman who authorities required to remove her hijab for a booking photo. Sophia Johnston was stopped by police for having a taillight out and was arrested when it turned out she had a 6-year-old outstanding warrant for failing to appear on charges of driving with a suspended license. (Background.) In the Settlement Agreement, the county also agreed to delete from its records photos and video of Johnston without her hijab. Johnston will have a booking photo wearing her hijab retaken. Under the Agreement, the county has also adopted a new policy on Religious Accommodations for Head Coverings During Booking Process (full text) and has updated its Detention Center Protocols (full text) to allow booking photos to be taken with religious head coverings so long as the head covering is first removed for a search.  WZTV News reports on the settlement.

11th Circuit Rejects RLUIPA Challenge to Novel Execution Method; Supreme Court Denies Review

In Smith v. Commissioner, Alabama Department of Corrections, (11th Cir., Jan. 24, 2024), the U.S. 11th Circuit Court of Appeals in a 2-1 decision refused to stop the January 25 execution of death row inmate Kenneth Smith.  The U.S. Supreme Court also refused to stay Smith's execution and denied certiorari in the case, initially in an Order dated January 24 (Smith v. Alabama, (Docket No. 23-6517)), and subsequently in an order dated January 25, to which Justice Sotomayor filed a dissent, as did Justice Kagan joined by Justice Jackson. (Smith v. Hamm, (Docket No. 23-6562)). Smith was executed in the evening of January 25. The case has garnered substantial news coverage because Alabama used a novel execution method-- nitrogen gas-- after a first attempt at execution by lethal injection failed. In addition to 8th Amendment claims, Smith, who wished to engage in audible prayer as he was being executed, raised free exercise claims under RLUIPA (as well as other claims).  The 11th Circuit affirmed the district court's refusal to issue a preliminary injunction, saying in part:

Here, Smith argues that the Protocol substantially burdens his ability to audibly pray during the course of his execution because he faces an untenable choice—audibly pray or face a substantial risk of superadded pain or prolonged death due to a dislodged mask. It is not speculative that Smith would engage in religious exercise because he both audibly prayed and sang the contemporary hymn “I Am Not Alone” during his failed execution. However, we cannot say that the district court clearly erred when it found that any risk of the mask gaping or dislodging is speculative based upon the same factual findings regarding the mask’s design, fit, and nitrogen volumes above. Without such findings, we cannot conclude that Smith will be substantially burdened in his ability to audibly pray during the course of the execution. Based upon this standard of review, we are bound to accept the district court’s findings as to Smith’s claim and affirm the district court on its RLUIPA holding.

Judge Wilson filed a concurring opinion and Judge Pryor filed a dissent on the 8th Amendment issue.

Ohio Legislature Overrides Governor's Veto of Bill on Transgender Health Care and Sports Participation

The Ohio Senate yesterday voted 24-8 to override Governor Mike DeWine's veto of HB 68, the Saving Adolescents from Experimentation (SAFE) Act. The Ohio House of Representatives two weeks ago voted 65-28 to override. The bill, which will now become law, bars physicians from performing gender reassignment surgery or prescribing cross-sex hormones or puberty blockers to minors. It also prohibits transgender women from participating on women's athletic teams in schools that participate in interscholastic athletics and in public and private colleges. (See prior posting.) WCMH News reports on the Senate's vote and says that a court challenge to the legislation is expected.

Arkansas AG Certifies Abortion Amendment Proposal; Signature Collection May Begin

After rejecting two prior proposals as being unclear or misleading (1 , 2 ) on Tuesday, Arkansas Attorney General Tim Griffin certified the popular name and ballot title for a proposed constitutional amendment that, if adopted by voters, will liberalize abortion rules in Arkansas.  The ballot proposal describes the changes as follows in part:

... [T]his amendment changes Arkansas law by amending the Arkansas Constitution to provide that the government of the State of Arkansas, its officers, or its political subdivisions shall not prohibit, penalize, delay, or restrict abortion services (1) in cases of rape, (2) in cases of incest, (3) in the event of a fatal fetal anomaly, or (4) when, in a physician’s good-faith medical judgment, abortion services are needed to protect a pregnant female’s life or to protect a pregnant female from a physical disorder, physical illness, or physical injury; to provide that the government of the State of Arkansas, its officers, or its political subdivisions shall not prohibit, penalize, delay, or restrict abortion services within 18 weeks of fertilization....

As reported by the Arkansas Democrat Gazette, the Attorney General's approval allows proponents to begin to collect 90,704 signatures needed to get the proposal on the November 2024 ballot.

White House Fact Sheet Focuses on Administration's Protection of Access to Reproductive Health Care

On Monday, which was the 51st anniversary of the Supreme Court's decision in Roe v. Wade, the White House issued a Fact Sheet (full text) announcing new actions to protect access to reproductive health care. According to the Whtie House, these include:

The Departments of the Treasury, Labor, and Health and Human Services (HHS) are issuing new guidance to clarify standards and support expanded coverage of a broader range of FDA-approved contraceptives at no cost under the Affordable Care Act....

The Secretary of HHS is issuing a letter to private health insurers, state Medicaid and Children’s Health Insurance Programs, and Medicare plans about their obligations to cover contraception for those they serve....

... The Administration is committed to helping ensure all patients, including women who are experiencing pregnancy loss and other pregnancy-related emergencies, have access to emergency medical care required under the Emergency Medical Treatment and Labor Act (EMTALA). The Administration has long taken the position that the required emergency care can, in some circumstances, include abortion care. The Department of Justice (DOJ) is defending that interpretation of the law before the Supreme Court, which is expected to rule by June. 

To increase awareness of EMTALA and improve the procedures for ensuring that patients facing all types of medical emergencies receive the care to which they are entitled, HHS is announcing today a comprehensive plan to educate all patients about their rights and to help ensure hospitals meet their obligations under federal law....

The Fact Sheet went on to outline at length steps the Administration has taken to protect access to abortion, including medication abortion, and to contraception. The Fact Sheet comes as the White House is convening the fourth meeting of its Task Force on Reproductive Health Care.