LGBTQ+ Support Group Fights Texas AG's Demand for Information

Suit was filed this week in a Texas state trial court by PFLAG, a national support group for LGBTQ+ individuals and their families, seeking to set aside civil investigative demands from the Texas Attorney General's Office. PFLAG contends that the demands from the AG's Office indicate that the Attorney General is seeking to identify Texas families that are seeking gender-affirming care for their transgender adolescents. The investigative demands were issued under the Texas Deceptive Trade Practices Act.  The petition (full text) in PFLAG, Inc. v. Office of the Attorney General of the State of Texas, (TX Dist. Ct., filed 2/28/2024), alleges in part:

The goal of the OAG in serving these Demands is neither to enforce Texas law, nor to protect Texas consumers under the DTPA. These Demands are a clear and unmistakable overreach by the OAG in retaliation for PFLAG successfully standing up for its members, who include Texas transgender youth and their families, against the OAG’s, the Attorney General’s, and the State of Texas’s relentless campaign to persecute Texas trans youth and their loving parents. While that retaliation is itself a reason to set aside the Demands, PFLAG is entitled to a temporary restraining order and temporary and permanent injunctive relief because the Demands violate PFLAG and its members’ rights to freedom of petition, speech and assembly and to be free from unjustified searches and seizures, are contrary to the OAG’s authority under the DTPA, and impermissibly seek to evade the protections afforded to PFLAG as a civil litigant. 

In 2022, PFLAG successfully obtained temporary injunctive relief shielding its member families from the Texas Department of Family Protective Services’ (“DFPS”) operationalization of Governor Greg Abbott’s directive to investigate families of transgender youth who receive gender-affirming medical care for the treatment of gender dysphoria—a directive based on the Attorney General’s non-binding opinion claiming that necessary, evidence-based gender affirming medical treatment for transgender youth is per se “child abuse” under Texas law....  And in 2023, PFLAG successfully obtained a temporary injunction at the district court enjoining enforcement of Senate Bill 14 ... which seeks to prohibit the provision and state funding of gender-affirming medical care for the treatment of gender dysphoria of transgender adolescents.....

Through the OAG’s own actions, discovery has been stayed in both [cases].... But through these Demands, the OAG seeks to circumvent the normal discovery process along with its attendant protections, and in so doing, seeks to chill the ability of PFLAG and its members to exercise their free speech and associational rights and avail themselves of the courts when their constitutional rights are threatened.

ACLU issued a press release announcing the filing of the lawsuit. AP reports on the lawsuit.

Jewish Students Sue Columbia University Charging Pervasive Antisemitism

Suit was filed last week in a New York federal district court by Jewish and Israeli students at Columbia University charging the University with widespread antisemitism.  The complaint (full text) in Students Against Antisemitism, Inc. v. Trustees of Columbia University in the City of New York, (SDNY, filed 2/21/2024) alleges violations of Title VI of the 1964 Civil Rights Act, of New York state and city Human Rights and Civil Rights Laws, breach of contract and deceptive business practices. The 114-page complaint reads in part:

Columbia ... has for decades been one of the worst centers of academic antisemitism in the United States.  Since October 7, 2023, when Hamas terrorists invaded Israel ...antisemitism at Columbia has been particularly severe and pervasive.... 

Columbia’s antisemitism manifests itself in a double standard invidious to Jews and Israelis.  Columbia selectively enforces its policies to avoid protecting Jewish and Israeli students from harassment, hires professors who support anti-Jewish violence and spread antisemitic propaganda, and ignores Jewish and Israeli students’ pleas for protection.  Those professors teach and advocate through a binary oppressor-oppressed lens, through which Jews, one of history’s most persecuted peoples, are typically designated “oppressor,” and therefore unworthy of support or sympathy.  Columbia permits students and faculty to advocate, without consequence, for the murder of Jews and the destruction of Israel, the only Jewish country in the world....

... Columbia has permitted endemic antisemitism to exclude Jewish and Israeli students from full and equal participation in, and to deprive them of the full and equal benefits of, their educational experience at Columbia, and has invidiously discriminated against them by, among other things, failing to protect them in the same way Columbia has protected other groups.... [I]t has responded to antisemitism with at best deliberate indifference....

Columbia Spectator reports on the lawsuit.

7th Circuit Reinstates Indiana Ban on Gender Affirming Care For Minors

In K.C. v. Individual Members of the Medical Licensing Board of Indiana, (7th Cir., Feb. 27, 2024), the U.S. 7th Circuit Court of Appeals stayed a preliminary injunction against Indiana's ban on non-surgical gender transition procedures for minors. The preliminary injunction was granted by an Indiana federal district court in June 2023 (full text of district court opinion). The 7th Circuit issued its Order lifting the injunction, saying that an opinion will follow. In a press release, the ACLU called the 7th Circuit's action "a heartbreaking development for thousands of transgender youth, their doctors, and their families." Indiana Attorney General Todd Rokita, in a post on X (formerly Twitter) said in part: "We are proud to win this fight against the radicals who continue pushing this horrific practice on our children for ideological and financial reasons." Indy Star reports on the case.

Election of Student School Board Member by Public School Students Did Not Violate Free Exercise Clause

 In Kim v. Board of Education of Howard County, (4th Cir., Feb. 28, 2024), the U.S. 4th Circuit Court of Appeals affirmed the dismissal of equal protection and free exercise challenges to the procedure that Howard County, Maryland uses to select a high school student to be one member of its 8-member school board. The student member is chosen by a vote of public-school students in grades 6 through 11. One of the plaintiffs contended that this process violates the Free Exercise clause because it excludes plaintiff's son who attends a Catholic school from participating in the selection process. The court concluded that the selection process is neutral and generally applicable and therefore subject only to rational basis review. The court said in part: 

Maryland’s law does not consider religious motivation but depends on public school enrollment. To the extent the law has an effect of excluding religious students, it does so “in spite of” and not “because of” those students’ religious reasons for forgoing public education.... The law is neutral. 

It is also generally applicable.,,,  Maryland’s law makes no distinction between religious and secular. It bars non-public-school students, religious and nonreligious alike, from choosing or serving as the student member.....

Howard County does not let any private schools, religious or nonreligious, participate in selecting the board of education student member.... Strict scrutiny plays no role in judging this textbook neutral and generally applicable selection criterion.....

Without the benefit of heightened judicial scrutiny, the parents have failed to state a viable claim under either the Equal Protection Clause or the Free Exercise Clause under rational basis review.

Court Upholds Maine's Law Barring LGBTQ Discrimination by Christian School Receiving State Funds

In Crosspoint Church v. Makin, (D ME, Feb. 27, 2024), a Maine federal district court refused to enjoin application of the state's educational antidiscrimination laws against a private Christian school. In 2022, the U.S. Supreme Court struck down Maine's exclusion of sectarian schools from its tuition payment program to out-of-district schools when districts do not operate their own public high schools. (See prior posting.) While that litigation was in progress, Maine's legislature amended its civil right laws to now bar schools that receive public funds from discriminating on the basis of religion, sexual orientation or gender identity. In rejecting the school's challenges, the court said in part:

The Court concludes that Crosspoint is not entitled to a preliminary injunction.  With this said, the Court acknowledges that Crosspoint is raising important legal questions.  Despite the plaintiffs’ hard-fought and significant victory at the United States Supreme Court in Carson, the Maine Legislature and the Maine Attorney General have largely deprived Crosspoint and similar religious schools of the fruit of their victory.  Crosspoint essentially argues that the Maine Legislature’s enactment of statutes that prohibit discrimination on the basis of sexual orientation and gender identity is a form of state-enforced, secular religion.  Yet, the Maine Legislature has the authority to define protected classes under its antidiscrimination laws.  The rub comes when the Maine Legislature’s view of the categories of people meriting protected status conflicts with sincerely held beliefs of members of religious communities.  This is a tension as old as the nation itself.  Although it has done its best to set out, analyze, and decide these difficult constitutional issues, the Court also recognizes that this case poses novel constitutional questions and has attempted to frame its opinion as a prelude to a challenge to the Court of Appeals for the First Circuit for a more authoritative ruling....

[Corrected to clarify scope of amendments.] 

UN Says Belarus Legislation on Religion and Belief Violates International Human Rights Law

In a Feb.20 press release (full text), the United Nations Office of the High Commissioner for Human Rights said that its experts believe recent legislation on freedom of conscience and activities of religious organizations adopted by Belarus violates international human rights law.  The press release, in part quoting the experts' report, says in part:

“The provisions on compulsory registration unduly restrict the right to freedom of thought, conscience, religion or belief,”...

“The law establishes broad yet imprecise legal grounds for the State to suspend and dissolve religious organisations, such as conducting an activity directed against the main direction of domestic and foreign policy of the Republic of Belarus, discrediting the Republic of Belarus, humiliating the national honour, engaging in political activities or other undefined extremist activities,” ...

The experts warned that the law imposes extensive State control over religious education and literature, stipulating that religious education, religious literature or any other material with religious content must not contradict “the generally recognised traditional values of the Belarusian people and the ideology of the Belarusian State”....

The law stipulates that religious organisations can only be led by Belarusian citizens with permanent residence in the country, which appears to discriminate against certain religions....

“The law appears to be aimed at further strengthening the overarching control of the State over all aspects of the existence of religious communities....

White House Announces 2024 Easter Egg Roll

In a Release (full text) yesterday, the White House announced information on the 2024 White House Easter Egg Roll. The traditional event, which is geared toward children 12 years of age and under, will be held on the White House South Lawn on Monday, April 1. Between now and March 4, the public may enter the free lottery for tickets. Applications to volunteer to assist at the event may also be submitted online. The White House Easter Egg Roll has been held annually (with a few exceptions) since 1878.

Cert. Filed In Religious Broadcasters' Appeal of Mandatory Royalty Rates

 A petition for certiorari (full text) was filed last week with the U.S. Supreme Court in National Religious Broadcasters Noncommercial Music License Committee v. Copyright Royalty Board, (Sup. Ct., cert. filed 2/23/2024).  In the case, the D.C. Circuit Court of Appeals in a July 28, 2023, opinion (full text) upheld the royalty rates set by the Royalty Board for calendar years 2021 through 2025 that must be paid by various classes of webcasters that stream copyrighted songs over the Internet. In its certiorari petition, the Religious Broadcasters set out the following as one of the Questions Presented for review:

Recently, the Board adopted rates requiring noncommercial religious webcasters to pay over 18 times the secular NPR-webcaster rate to communicate religious messages to listeners above a modest 218-average listener threshold. The D.C. Circuit upheld that disparate burden based on the Board treating some secular webcasters as poorly as religious webcasters. The result is suppression of online religious speech....

Its decision presents ... important legal questions: 

1. Whether approving noncommercial rates that favor NPR’s secular speech over religious speech violates the Religious Freedom Restoration Act (RFRA) or the First Amendment....

ADF issued a press release announcing the filing of the cert. petition.

Tennessee Legislature Passes Healthcare Sharing Ministries Exemption

Yesterday the Tennessee legislature took the final procedural steps needed to send HB 1163, Healthcare Sharing Ministries Freedom to Share Act (full text) to the Governor for his signature. It exempts from state insurance regulation tax-exempt plans under which members who share a common religious or ethical belief provide for the medical or financial needs of other members through their financial contributions.

Civil Conspiracy Claims Against Religious Organization Survive 1st Amendment Defenses

In re Gothard, (TX App., Feb. 22, 2024), is a mandamus action that is essentially an appeal of a trial court's refusal to dismiss civil conspiracy claims against Institute in Basic Life Principles and its founder, William Gothard. Plaintiffs claimed that ILBP is a cult that "teachers distorted and heretical Christian doctrines" that led to their sexual abuse by their father and brother. The Texas state appellate court rejected Relators', i.e. defendants', First Amendment defenses, saying in part:

Gothard maintains that religious teachings and the publication thereof are constitutionally protected.  IBLP contends the ecclesiastical abstention doctrine bars RPIs’ cause of action. It argues that the “alleged religiously motivated conduct of IBLP is the advocacy and publication of religious beliefs.”  According to Relators, if RPIs’ claim is considered valid, any religious leader who speaks on religious topics and publishes his beliefs could be subject to a civil cause of action if a listener or reader improperly applies those beliefs in sexually abusing another person or committing some other unlawful act. ...

But the First Amendment does not bar all claims against religious bodies.,,,  A court may exercise jurisdiction over a controversy if it can apply neutral principles of law that will not require inquiry into religious doctrine, interference with the free-exercise rights of believers, or meddling in church government....

The relevant question is whether it appears certain that resolution of [plaintiffs']’ claims will require the trial court to address purely ecclesiastical questions.... IBLP represents that its teachings and materials are based on scriptures from the Bible, none of which “advocate sexual abuse or any other form of sexual immorality.”  Accordingly, by its own admission, IBLP’s teachings and materials do not advocate sexual abuse and consequently, the intentional tort of sexual assault that underlies the civil conspiracy claim is not rooted in religious belief.  ....

Because sexual assault is not part of Relators’ belief system, we cannot definitively say, based on the record before us, that this is a situation in which religious beliefs are so intertwined with a tort claim so as to unconstitutionally burden Relators’ rights and embroil the court in an assessment of those religious beliefs.

Recent Articles of Interest

From SSRN:

• Charles A. Sullivan, After Groff, (January 20, 2024).
• Richard Schragger, Micah Schwartzman & Nelson Tebbe, Reestablishing Religion, (91 U. Chi. L. Rev. (forthcoming 2024)).
• Amal Sethi, The Justiciability Of Economic, Social And Cultural Rights In India, (2023, Angelika Nussberger and David Landau (eds), The Justiciability of Economic, Social and Cultural Rights).
• Gerard Kennedy & Kristopher Kinsinger, Justiciability, Religious Tenets, and Private Law Causes of Action: Towards a Predictable Framework, ((2024) SCLR (3d)).
• Emily Kaufman, On Liberty: From Due Process to Equal Protection — Dobbs’ Impact on the Transgender Community, 14 U. MIA Race & Soc. Just. L. Rev. 81 (2023).
• Serena Mayeri, The Critical Role of History after Dobbs, (Journal of American Constitutional History, Vol. 2, p. 171, Winter, 2024).
• Greer Donley & Caroline Kelly, Abortion Disorientation, (74 Duke Law Journal (forthcoming)).

Pakistan Supreme Court Defends Free Exercise Rights of Ahmadis; Protests Follow

Earlier this month, a 2-judge panel of the Pakistani Supreme Court in Mubarak Ahmad Sani v. The State, (Pakistan Sup. Ct., Feb. 6, 2024) (full text in Urdu), ordered the release on personal bond of a member of the Ahmadi sect who had already been held for 13 months pending trial on charges of disseminating a banned religious text.

 As explained in the Feb. 25 issue of Dawn:

Petitioner Sami had sought deletion of certain charges in an FIR [First Information Report] registered against him on Dec 6, 2022 at the Chenab Nagar police station in Chiniot district.

The petitioner was accused of distributing/disseminating a proscribed book, Tafseer-i-Sagheer, which, according to the prosecution, was an offence under the Punjab Holy Quran (Printing and Recording) (Amendment) Act enforced in 2021, whereas the FIR alleged that the petitioner had done this in 2019 when the distribution/dissemination of the proscribed book was not an offence....

The petitioner was arrested on Jan 7, 2023 and remained incarcerated for 13 months — more than double the permissible punishment under Section 5 of the Criminal Law Amendment Act, 1932....

The verdict observed that the principle of there being no compulsion in religion mentioned in the Holy Quran is enshrined in the Constitution as a fundamental right. Clause (a) of Article 20 of the Constitution stipulates that “every citizen shall have the right to profess, practice and propagate his religion”, while clause (b) of Article 20 states that “every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions”.

Article 22 of the Constitution requires and prescribes that “no religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any educational institution maintained wholly by that community or denomination”.

“These fundamental rights cannot be derogated from, circumvented or diluted.... ” the judgement observed.

The court regretted that bail was declined to the petitioner by the additional sessions judge on June 10 last year, without considering that the petitioner had already served out the maximum prescribed imprisonment for these offence.

According to a Feb. 23 AFP report, the Supreme Court's decision led to demonstrations in Peshawar by some 3000 Pakistani Muslims who consider the Ahmadi text blasphemous. As reported by the Times of India, the Supreme Court on Thursday issued a statement defending the decision.

UPDATE: According to a Feb. 24 report in The News, the Punjab government has petitioned the Supreme Court seeking a revision of its decision, asking it to clarify that Article 20 of the Constitution qualifies its protection of the profession, propagation and practice of religion by making it subject to "public order and morality". At a hearing on accepting the petition, the Chief Justice's comments suggested that the Court would agree to that modification. The Court adjourned the hearing until Feb. 26.

Utah Legislature Passses Religious Freedom Bill

The Utah legislature yesterday gave final passage to S.B. 150: Exercise of Religion Amendments (full text). The bill is similar, though not identical to, Religious Freedom Restoration Acts passed in 35 other states. It prohibits governmental imposition of a substantial burden on the free exercise of religion unless the government demonstrates a compelling interest and uses the least restrictive means to further that interest. In a compromise with LGBTQ advocates, the sponsor of the bill added language in the introductory "Whereas" clauses to preserve existing protections against discrimination in employment and housing based on sexual orientation or gender identity. (Background). Those clauses read:

(d) WHEREAS, Utah has enacted a number of laws that balance religious freedom with other important civil rights; and

(e) WHEREAS, this part complements, rather than disrupts, the balance described in Subsection (1)(d).

The bill now goes to Governor Spencer Cox for his signature. States Newsroom reports on passage of the bill.

State Constitutional Challenge to Abortion Restrictions Filed in Wisconsin Supreme Court

Last year in Kaul v. Urmanski, (WI Cir. Ct., Dec. 5, 2023), a Wisconsin state trial court held that Wisconsin Statute §940.04 which prohibits destroying the life of an unborn child applies only to feticide, and not to consensual abortions. That case is now on appeal to the Wisconsin Supreme Court. Yesterday, Planned Parenthood filed a petition with the Wisconsin Supreme Court asking it to take original jurisdiction over a state constitutional challenge to §940.04. It contends that the Court should decide the constitutional question before it engages in the statutory interpretation issue presented in the Kaul case. The petition (full text) in Planned Parenthood of Wisconsin v. Linton, (WI Sup.Ct., filed 2/22/2024), contends that Wisconsin Statute §940.04, if interpreted to ban abortions in all cases except to save the life of the mother, violates Art. I, Sec. 1 of the Wisconsin Constitution. The Petition asserts that the abortion ban (enacted in the mid 19th century) violates the right to bodily integrity, autonomy and self-determination; the physician's and the patient's right to equal protection, and the physician's right to practice his or her profession. Courthouse News Service reports on Planned Parenthood's petition.

Tennessee Governor Signs Law Allowing Potential Officiants to Refuse to Solemnize a Marriage

Yesterday, Tennessee Governor Bill Lee signed into law HB 878 (full text) which adds to the Tennessee Code section which lists who may solemnize marriages (clergy as well as various current and former public officials) language that provides:

 A person shall not be required to solemnize a marriage.

As originally introduced, the bill would have allowed refusals only by those who had objections based on conscience or religious belief.  CNN reporting on the bill notes that LGBTQ advocates criticized the bill for allowing public officials to discriminate based on their personal beliefs.

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.