Pharmacist Violated Sex Discrimination Ban in Refusing to Fill Prescription for Emergency Contraceptive

 In Anderson v. Aitkin Pharmacy Services, LLC, (MN App., March 18, 2024), a Minnesota state appellate court held that a pharmacist violated the Minnesota Human Rights Act that prohibits intentionally refusing to do business with a person because of the person's sex. The pharmacist refused to dispense plaintiff's prescription for the emergency contraceptive ella because of his conscientious objection to dispensing any medication that prevents the implantation of a fertilized egg. The statute defines sex discrimination as including discrimination because of pregnancy. The court said in part:

Badeaux refused to dispense Anderson’s valid prescription because Badeaux believed she may have been pregnant.  Thus, pregnancy was a substantial causative factor in Badeaux’s refusal to dispense ella....

Badeaux did not assert a constitutional defense in district court and does not argue that the MHRA actually violates his constitutional rights.  Instead, he argues on appeal that the sex-discrimination language in the MHRA should be interpreted to avoid a constitutional conflict.... But we do not apply the constitutional-avoidance canon to a party’s proposed interpretation of a statute if the interpretation is contrary to the plain language of the statute.

The court however refused to reverse the jury's finding that the Pharmacy, as opposed to the individual pharmacist, did not violate the sex discrimination ban. The court said in part:

The evidence shows that Aitkin Pharmacy wanted to fill all valid prescriptions and had a pharmacist on staff who was willing to dispense emergency contraception.  The evidence also shows that, when Badeaux called Anderson on January 21, he communicated both that he was unwilling to dispense ella and that there was another pharmacist scheduled to work who was willing to dispense her prescription.... [T]here is a reasonable theory of the evidence to support the verdict that Aitkin Pharmacy did not intentionally refuse to do business with Anderson...

The court also concluded that, because of erroneous jury instructions, plaintiff should have been granted a new trial on her claim that the pharmacy violated the state's public accommodation law that bans denial of the full and equal enjoyment of goods and services in places of public accommodation because of sex. Courthouse News Service reports on the decision. [Thanks to Thomas Rutledge for the lead.]

European Court: Turkey Violated Rights of Conscientious Objector

In Kanatli v. Turkey, (ECHR, March 12, 2024) (full text of opinion in French), the European Court of Human Rights in a Chamber Judgment held that Turkey had violated Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights when it convicted a military reservist who had subsequently become a conscientious objector for refusing to serve a one-day reserve duty call-up. The reservist, who had become an activist on the European Bureau for Conscientious Objection, was convicted of violating Turkey's Mobilization Act and fined the equivalent of 167 Euros. He refused to pay the fine and was therefore sentenced to ten days in prison. An English language press release from the Court summarizes its holding, saying in part:

The relevant national legislation – which provided for compulsory military service in the armed forces, including as a reservist – made no provision for potential conscientious objectors to perform an alternative form of service....

The Court had previously found that a system which provided for no alternative service or any effective and accessible procedure for the examination of a claim of conscientious objection could not be seen as having struck a fair balance between the general interest of society and that of conscientious objectors. No convincing arguments having been put forward by the Government, the Court saw no reason to depart from its case-law in the present case....

The Court held that Türkiye was to pay the applicant 9,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,363 in respect of costs and expenses.

Catholic Bishops Mobilize Special Prayer Efforts for Supreme Court's Decision on Abortion Pill Availability

On March 26, the U.S. Supreme Court will hear oral arguments in Food and Drug Administration v. Alliance for Hippocratic Medicine and a companion case Danco Laboratories, LLC v. Alliance for Hippocratic Medicine. (SCOTUSblog case page.) At issue are challenges to the Food and Drug Administration's relaxation of restrictions on the administration and use of the abortion drug mifepristone. (See prior posting.) On March 14, the U.S. Conference of Catholic Bishops issued a letter (full text) calling for the recitation of a special prayer beginning the day before oral arguments and daily until the date in June when the case is decided.  The letter reads in part:

The USCCB Committee on Pro-Life Activities is inviting Catholics to join a focused effort of prayer for the end of abortion and the protection of women and preborn children, beginning on March 25, the eve of the oral arguments, and the anniversary of St. John Paul II’s landmark, pro-life encyclical, The Gospel of Life (Evangelium vitae). In particular, we will invoke the intercession of St. Joseph, Defender of Life....

The Tablet and Catholic World Report both report on the Bishops' Nationwide Invitation to Prayer.

Certiorari Denied in Case of Anorexic Transgender Teen Placed Under State's Care

The U.S. Supreme Court today denied review in M.C. v. Indiana Department of Child Services, (Docket No. 23-450, certiorari denied, 3/18/2024) (Order List). In the case, an Indiana state appellate court upheld the removal to state custody of a 16-year-old transgender child who was suffering from anorexia. The teen's parents, because of their Christian religious beliefs, refused to accept their child's transgender identity. The appellate court also upheld an order barring the parents from discussing the child's transgender identity during visitation.  (See prior posting.)  USA Today reports on the Supreme Court's action.

Air Pollution Did Not Violate City Residents' Free Exercise Rights

In Dancer v. United States, (WD MI, March 15, 2024), residents of Kalamazoo, Michigan sued a variety of governmental and private parties alleging injuries from airborne pollution, chemical discharges and odors from a nearby paper mill. Among the 34 separate claims in the lawsuit was a claim that the city's failure to deal with air quality problems caused pollution and odors that interfered with plaintiffs' ability to attend congregational worship services. The Michigan federal district court said in part:

The city’s alleged failure to improve the air quality of its residents does not give rise to a free exercise claim because that failure impacts city residents without regard to their religion.... Ordinarily, a policy or practice that is “neutral, generally applicable, and ‘incidentally burdens religions practices’” does not give rise to a free exercise claim.... Those are the circumstances here.

7th Circuit: Zoning Denial for Catholic School Athletic Field Lights Did Not Violate RLUIPA

In Edgewood High School of the Sacred Heart v. City of Madison, Wisconsin, (7th Cir., March 15, 2024), the U.S. Court of Appeals for the 7th Circuit upheld the denial of zoning approval for a Catholic high school to install lights in its athletic field for nighttime games. The court rejected the school's claims that the denial violated the "equal terms" and "substantial burden" provisions of the Religious Land Use and Institutionalized Persons Act, saying in part:

... [W]e remain doubtful that the hosting of nighttime athletic competitions constitutes “religious” activity.... We can put our doubts to the side, though, because the City effectively conceded on appeal that the hosting of games at Edgewood’s athletic field constitutes religious activity. We accept that concession for purposes of this appeal. 

It would be a bridge too far, however, to conclude that Edgewood’s inability to host nighttime competitions at its field imposes a “substantial burden” on its Catholic mission.... [W]e have examined the term in the land-use context and concluded that the availability of other adequate properties to host religious activities may defeat a substantial burden claim....

The alternative venues in this case are in the same general community within the City of Madison as Edgewood and, according to the evidence developed during discovery, remain available to host nighttime events. Given these alternative sites, we cannot see how the City’s zoning decisions imposed a substantial burden on Edgewood’s religious mission. Indeed, the high school has never hosted nighttime competitions on its athletic field but has carried out its religious mission all the same for over 100 years.

Recent Articles of Interest

From SSRN:

• Elizabeth Sepper & Lindsay Freeman Wiley, The Religious Liberty Challenges to American-Style Social Insurance, (UC Davis Law Review, Vol. 58, 2024).
• Dustin N. Sharp, Comparative Frameworks for a Human Rights-Based Approach to Psychedelics, (March 8, 2024).
• Barkha Singh, Normalization of the Exceptional State Under Unlawful Activities and Prevention (Amendment) Act, 2019 – Umar Khalid V. Union of India, (February 17, 2024).
• Robin S. Maril, Originalism and Democratic Decline, ( Maryland Law Review, Forthcoming).
• Howard Wasserman & Charles W. (Rocky) Rhodes, 303 Creative, Exclusive Private Enforcement, and Blue-State Revenge, (Florida International University Legal Studies Research Paper No. 24- (2024).

From SmartCILP:

• David Smolin, Beyond Apologies: Children, Mothers, Religious Liberty, and the Mission of the Catholic Church, 53 Cumberland Law Review 101-172 (2022).

Denial of Temporary Religious Worker Visa Upheld

In Calvary Albuquerque Inc. v. Blinken, (D NM, March 13, 2024), a New Mexico federal district court dismissed challenges to the denial of an R-1 (Temporary Religious Worker) visa for Stefen Green, a South African citizen who was to be hired as Calvary Church's Worship Director. At issue was the fact that Green received honoraria and allowances from Calvary Church while in the United States on a B-1 visitor's visa before the R-1 visa was approved. Green and Calvary Church both contended that the denial violated their rights under the Religious Freedom Restoration Act. Denying Green's claim, the court said in part:

Because the doctrine of consular nonreviewability is a long-standing “no trespass rule” for judicial review, and Congress has not expressly provided for judicial review of consular visa decisions, this Court may not infringe upon the consular officer’s decision to deny Mr. Green’s visa except where the constitutional rights of an American citizen are implicated....

Moving on to the RFRA claim by the Church, the court said in part: 

Calvary Church is a United States church making a free exercise claim under RFRA, so this Court must next determine whether the consular officer’s visa denial was made for a facially legitimate and bona fide reasons....

Here, the consular officer cited a valid statutory reason for denial.... [T]he consular officer made a factual determination that Mr. Green willfully misrepresented the purpose of his April 9, 2022, visit to a border official as commensurate with a B-1/B-2 visa and then violated that status by intending to engage in unauthorized employment for hire as an independent contractor at Calvary Church within 90-days of his entry into the United States.

Japanese Appellate Court Says Failure to Recognize Same-Sex Marriage Is Unconstitutional

In Japan yesterday, the Sapporo High Court-- an intermediate appellate court-- held that Japan's refusal to recognize same-sex marriages is unconstitutional.  Japan Today reports on the decision:

The Sapporo High Court upheld the lower court's landmark verdict in 2021 that said non-recognition of same-sex marriage violates the right to equality protected under the Constitution but rejected a total of 6 million yen ($40,600) in damages sought by three same-sex couples in Hokkaido against the state for emotional distress.

The plaintiffs said they will appeal the ruling to the Supreme Court.

The ruling, the first by a high court among six lawsuits filed at five district courts questioning the current laws' unacceptance of same-sex marriage, said the provisions violate not only Article 14 on the right to equality but also Article 24, which says marriage shall be only on the mutual consent of "both sexes."

The court stated for the first time that Article 24 can be understood as also guaranteeing marriage between individuals of the same sexes.

The clause did not anticipate same-sex marriages when the Constitution was enacted but "it should be interpreted against the background where respect for individuals is more clearly considered," Presiding Judge Kiyofumi Saito said in handing down the ruling.

Several district (trial level) courts have ruled on the issue, including a ruling yesterday by a district court in Tokyo saying that lack of some sort of recognition of same-sex couples is "a deprivation of a key part of their personal identity." However, the court said that the Diet has many options for recognizing same-sex partnerships.

Custody Order Barring Father from Taking Child to His Church Upheld

In Bardonner v. Bardonner, (IN App., March 12, 2024), the Indiana Court of Appeals held that a father's free exercise rights were not infringed in any way by a provision in a custody order that gives his former wife custody of their child and the sole right to determine the child's religious training.  At issue is a trial court order that provides in part:

Father shall NOT permit the child to attend any All Saints Orthodox Church service, Sunday school, social event, any event located at the church, any event sponsored in whole or in part by All Saints Orthodox Church; nor any private events hosted by a member of All Saints Orthodox Church....

The court said in part:

The bottom line is that Mother has the exclusive authority to dictate Child’s religious training, and she has decided that Child shall not participate in Father’s church. Mother does not need to explain her reasons or justify her decision in any way.

Finally, we note that it was Father’s own violations of previous court orders, which were less restrictive on this issue, that led the trial court to impose the current prohibition against taking Child to even private functions hosted by members of Father’s church. Given the trial court’s broad discretion in family matters, we decline Father’s invitation to find an abuse of that discretion here. 

In sum, the trial court’s order does not violate Father’s First Amendment rights; nor is it erroneous for other reasons.

Wisconsin Supreme Court Says Catholic Charities Not Exempt from Unemployment Comp Law

 In Catholic Charities Bureau, Inc. v. State of Wisconsin Labor and Industry Review Commission, (WI Sup. Ct., March 14, 2024), the Wisconsin Supreme Court by a vote of 4-3 held that Catholic Charities Bureau and four of its sub-entities are not entitled to an exemption from the state's unemployment compensation law.  The statute exempts nonprofit organizations "operated primarily for religious purposes and operated, supervised, controlled, or principally supported by a church or convention or association of churches." The court concluded that under the statute, what is important is the purpose of the nonprofit organization, not the purpose of the church which controls it. The court said in part:

... [I]n determining whether an organization is "operated primarily for religious purposes" within the meaning of Wis. Stat. § 108.02(15)(h)2., we must examine both the motivations and the activities of the organization....

CCB and the sub-entities profess to have a religious motivation.... However, accepting an organization's motivations does not end the inquiry as we must also examine its activities....

 Here, such criteria weigh in favor of a determination that CCB's and the sub-entities' activities are not "primarily" religious in nature.  The record demonstrates that CCB and the sub-entities, which are organized as separate corporations apart from the church itself, neither attempt to imbue program participants with the Catholic faith nor supply any religious materials to program participants or employees.  Although not required, these would be strong indications that the activities are primarily religious in nature....

CCB's and the sub-entities' activities are primarily charitable and secular.  The sub-entities provide services to individuals with developmental and mental health disabilities.  These activities include job training, placement, and coaching, as well as services related to activities of daily living.  CCB provides background support and management services for these activities——a wholly secular endeavor....  

Such services can be provided by organizations of either religious or secular motivations, and the services provided would not differ in any sense....

The court also concluded that neither this inquiry nor the required payment of unemployment tax violates the Free Exercise or Establishment Clauses.

Justice Bradley, joined in part by Chief Justice Ziegler, filed a lengthy dissenting opinion, saying in part:

 Impermissibly entangling the government in church doctrine, the majority astonishingly declares Catholic Charities are not "operated primarily for religious purposes" because their activities are not "religious in nature."... The statute, however, requires only that a nonprofit be operated primarily for a religious reason.

Justice Hagedorn also filed a brief dissenting opinion.

AP reports on the decision, as does Courthouse News Service,

5th Circuit: Texas Statute Giving Parents Right to Consent to Teens' Contraceptives Is Consistent with Title X

 In Deanda v. Becerra, (5th Cir., March 12, 2024), the U.S. 5th Circuit Court of Appeals held that a Texas statute giving parents the right to consent to their teenagers' receiving contraceptives is consistent with Title X of the federal Public Health Service Act under which clinics are given grants to distribute contraceptives and other family planning services. HHS had given informal guidance to grantees that they could not require parental consent or notify parents before prescribing contraceptives to minors. The court's opinion describes the lawsuit:

In 2020, Alexander Deanda filed a federal lawsuit challenging the Secretary’s administration of the Title X program. He alleged that he is the father of three minor daughters1; that he is raising his daughters according to his Christian beliefs to abstain from pre-marital sex; and that he wants to be informed if any of his children access or try to access contraceptives. He further alleged that Texas law gives him a right to consent before his children obtain contraceptives. See Tex. Fam. Code § 151.001(a)(6); § 102.003(a)(1). Finally, he alleged that the Secretary administers Title X unlawfully by funding grantees who provide contraceptives to minors without notifying parents or obtaining parental consent. Accordingly, Deanda sought declaratory and injunctive relief on behalf of himself and a putative class, claiming that the Title X program violates (and does not preempt) Texas law and that it violates his constitutional right to direct his children’s upbringing as well as his rights under the Religious Freedom Restoration Act (“RFRA”).

The court concluded that Title X and the Texas statute reinforce each other because Title X calls for grantees to encourage family participation to the extent practicable.  The court however reversed the trial court's invalidation of a formal HHS Rule promulgated in 2021 forbidding grantees from notifying parents or requiring parental consent because the Rule was adopted after this lawsuit was filed and was not specifically challenged by the lawsuit. 

Houston Chronicle reports on the decision.

Complaint Charges Sarah Lawrence College with Antisemitism Violating Title VI

A Complaint (full text) was filed on March 11 with the Department of Education Office for Civil Rights by Hillels of Westchester asking OCR to initiate an investigation of antisemitism at Sarah Lawrence College. The 43-page Complaint (with 46 pages of Exhibits attached) reads in part:

We are submitting this Title VI Complaint1 as counsel for Hillels of Westchester2 ... which is acting on behalf of current and former Jewish students at Sarah Lawrence College (“SLC”) who, as an expression of their Jewish identity, affiliate with Hillel or have an affinity for Israel....

The hostile environment on campus, going back many years, forces these Jewish students to conceal their identity and precludes them from participating in SLC’s social, educational and extracurricular activities unless they disavow their affiliation with Hillel or affinity for Israel.  The administration at SLC has been well aware of this ongoing problem and not only has failed to address it, but at times has been complicit in contributing towards it.  In the painfully sardonic words of one Jewish student who transferred out of Sarah Lawrence College because of its toxic environment, “it is safe to be Jewish as long as you are openly anti-Israel.”...

... [I]n some cases SLC administrators and faculty have discouraged students from lodging formal complaints of anti-Semitism, or have delayed or “slow-walked” the complaint process – essentially, waiting out the students until they graduate or complete the school year. The complaint process itself is notoriously opaque, preventing students from knowing what measures, if any, have been taken to address their complaints.

National Review reports on the Complaint.

Settlement Narrows Interpretation of Florida's "Don't Say Gay" Law

On Monday, a Settlement Agreement (full text) was filed with the U.S. Court of Appeals for the 11th Circuit in Equality Florida v. Florida State Board of Education. In the case, plaintiffs challenged the constitutionality of Florida's Parental Rights in Education Act (sometimes known as the "Don't Say Gay" law). The Settlement Agreement defines narrowly the conduct that is prohibited by the law. According to the Agreement, the law only bans instruction on sexual orientation or gender identity that takes place in the classroom in grades 1-3. It does not ban references by teachers or students that do not amount to "instruction." Library books and extracurricular activities are not impacted by the ban.

In a press release, Florida Governor Ron Desantis' referred to the settlement as 

a major win against the activists who sought to stop Florida’s efforts to keep radical gender and sexual ideology out of the classrooms of public-school children in kindergarten through third grade (5- to 9-year-olds).

Plaintiffs in the case however describe it as a win for them, saying in part:

The agreement effectively nullifies the most dangerous and discriminatory impacts of Florida’s controversial “Don’t Say Gay Law,” and makes clear that the law must be applied neutrally and is no license to discriminate against or erase LGBTQ+ families.

The settlement restores the ability of students, teachers, and others in Florida schools to speak and write freely about sexual orientation and gender identity in class participation and schoolwork. It also restores safeguards against bullying on the basis of sexual orientation and gender identity, and reinstates Gay-Straight Alliances (GSAs). Critically, the settlement also requires the State Board of Education to send today’s agreement to every school district, and to make clear that the settlement reflects the considered position of the State of Florida on the scope and meaning of this law.

USCIRF Ends Saudi Visit After Its Jewish Chairman Was Told to Remove His Kippah in Public Places

In a press release issued Monday, the U.S. Commission on International Religious Freedom said that last week it ended an official visit to Saudi Arabia early after the delegation was told to leave the Diriyah UNESCO World Heritage Site in Riyadh because USCIRF Chairman Rabbi Abraham Cooper would not remove his kippah (head covering). The press release says in part:

The Saudi government had invited the delegation, led by Chair Cooper and Vice Chair Reverend Frederick A. Davie, to tour the site on March 5, as part of their official visit to the country that had started on March 3. After several delays to the tour, officials requested that Cooper, an Orthodox Jewish Rabbi, remove his kippah while at the site and anytime he was to be in public, even though the Saudi Ministry of Foreign Affairs had approved the site visit. U.S. Embassy staff accompanying the USCIRF delegation supported and conveyed to Saudi officials Chair Cooper’s polite but resolute refusal to remove the kippah. Despite their efforts, site officials escorted the delegation off the premises after Chair Cooper indicated he sought no confrontation or provocation but as an observant Jew could not comply with a request to remove his kippah.

The Saudi Embassy in Washington, D.C. issued a statement (full text) saying in part:

This unfortunate incident was the result of a misunderstanding of internal protocols.... We look forward to welcoming him back to the Kingdom.

New York's Removal of Religious Exemption from School Vaccination Requirement Is Upheld

In Miller v. McDonald, (WD NY, March 11, 2024), a New York federal district court upheld New York's removal of religious exemptions from its mandatory requirement for vaccination of school children. It rejected Free Exercise challenges by Amish individuals and schools, finding, in part in reliance on the 2nd Circuit's We the Patriots decision, that the law was both neutral and generally applicable, and thus did not trigger heightened scrutiny.  The court said in  part:

... Plaintiffs allege that PHL § 2164 is not neutral because “the State targeted religious adherents by eliminating [the] long-standing religious exemption while leaving the medical exemption process in place.”... This allegation fails to establish non-neutrality.  Nothing in the text of PHL § 2164 as amended demonstrates any hostility to religion.  To the contrary, PHL § 2164 is neutral on its face, neither targeting religious belief nor singling it out for particularly harsh treatment.  And, as previously noted, We the Patriots affirmatively held that the repeal of a previously existing religious exemption is not, of itself, hostile to religion....

Moreover, the legislative history related to the repeal of the non-medical exemption contains no evidence of hostility towards religious belief.  Those sponsoring the relevant legislation in both the New York State Senate and the New York State Assembly made clear that their concern was public health...

The We the Patriots court explained that “where a law provides for an objectively defined category of people to whom the vaccination requirement does not apply, including a category defined by medical providers’ use of their professional judgment, such an exemption affords no meaningful discretion to the State” and thus does not render the law not generally applicable.

Court Upholds Kansas Law Requiring Biological Sex at Birth on Driver's Licenses

 In State of Kansas ex rel. Kobach v. Harper, (KS Dist. Ct., March 11, 2024), a Kansas state trial court, in issuing a preliminary injunction, rejected challenges to a Kansas law that requires driver's licenses to reflect a person's "biological sex, either male or female, at birth." The court said in part:

The crux of Intervenors’ constitutional argument is that requiring KDOR to display a licensee’s sex at birth on a driver’s license and in the KDOR database violates Section 1 of the Kansas Constitution Bill of Rights. Section 1 says: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” ...

[The Kansas Supreme court decision in] Hodes said Kansans have the right to control their own bodies. It did not say Kansans have a fundamental state constitutional right to control what information is displayed on a state-issued driver’s license. And the Intervenors’ testimony at the hearing was that producing a driver’s license indicating a sex different than their expressed gender did not result in physical violence, verbal harassment, loss of employment, loss of benefits, refusal of service, or negative interaction with law enforcement. Rather, Intervenors testified about feeling embarrassed, humiliated, or unsafe if someone gave them a puzzled look, hesitated, or questioned their identity when looking at their driver’s license. They testified to the discomfort of airport security pat downs that are a universal feature of modern travel. K.S.A. 77-207 does not violate any right to personal autonomy under Section 1....

Finally, Intervenors assert that K.S.A. 77-207 deprives them of equal protection of the law .... The rules are the same for identifying each person who seeks a driver’s license. Similarly situated people are not treated differently under the statute, thus there is no equal protection violation.

AP reports on the decision.

D.C. Circuit Hears Arguments on Tax Exempt Status of Church Promoting Religious Use of Psychedelic Drug

The U.S. court of Appeals for the D.C. Circuit yesterday heard oral arguments in Iowaska Church of Healing v. Werfel (audio of full oral arguments). In the case, the D.C. federal district court upheld the IRS's refusal to grant §501(c)(3) non-profit status to a church that promotes the religious use of Ayahuasca, a tea brewed from plants containing a drug that is illegal under the federal Controlled Substances Act. (See prior posting.) Bloomberg Law reports on the oral arguments.

Orthodox Jewish Passengers Sue JetBlue For Discrimination

Suit was filed late last month in a New York federal district court against JetBlue Airways by three observant Jewish passengers who were forced off of a flight by airline personnel after one of the passengers, an Orthodox Jewish man, asked other passengers to switch seats with him so, consistent with his religious beliefs, he would not be sitting next to a woman who was not his wife or a blood relative. The complaint (full text) in Ungar v. JetBlue Airways Corp., (SD NY, filed 2/27/2024), alleges in part:

48. ... At no time while Mr. Lunger was trying to observe his religious beliefs, did he force, become loud, or use a stern voice to intimidate any other passengers into changing seats with him.  

49. Even though Mr. Lunger had figured out a way to observe his religious beliefs without interfering with the flight, Defendant Doe [the flight attendant] discriminated against Mr. Lunger because of his race and his religion.

50. Defendant Doe brought the JetBlue pilot to the back of the plane.

51.  The JetBlue pilot falsely told the Plaintiffs that they could not change seats because it was a violation and it would cause a weight imbalance.... 

Plaintiffs claim they suffered discrimination and retaliation on the basis of religion and race in violation of 42 USC §1981 and California's Unruh Civil Rights Act. Live and Let's Fly reports on the lawsuit.

President Sends Ramadan Greetings Outlining Policy Initiatives

 President Biden yesterday issued a Statement on the Occasion of Ramadan (full text), saying in part:

Tonight—as the new crescent moon marks the beginning of the Islamic holy month of Ramadan—Jill and I extend our best wishes and prayers to Muslims across our country and around the world....

...As Muslims gather around the world over the coming days and weeks to break their fast, the suffering of the Palestinian people will be front of mind for many. It is front of mind for me.

The United States will continue to lead international efforts to get more humanitarian assistance into Gaza by land, air, and sea....

While we get more life-saving aid to Gaza, the United States will continue working non-stop to establish an immediate and sustained ceasefire for at least six weeks as part of a deal that releases hostages. And we will continue building toward a long-term future of stability, security, and peace. That includes a two-state solution to ensure Palestinians and Israelis share equal measures of freedom, dignity, security, and prosperity. That is the only path toward an enduring peace.

Here at home, we have seen an appalling resurgence of hate and violence toward Muslim Americans. Islamophobia has absolutely no place in the United States, a country founded on freedom of worship and built on the contributions of immigrants, including Muslim immigrants. My Administration is developing the first-ever National Strategy to Counter Islamophobia and Related Forms of Bias and Discrimination, to take on hate against Muslim, Sikh, South Asian, and Arab American communities, wherever it occurs.

Ban on Caste Discrimination Is Constitutional

In Bagal v. Sawant, (WD WA, March 8, 2024), a Washington federal district court rejected First and 14th Amendment challenges to the City of Seattle's adding of "caste" as a protected class under its anti-discrimination Ordinance. The court said in part:

First, Plaintiff argues that incorporating “caste” into existing anti-discrimination laws ipso facto creates a stigma, levelled towards a specific and insular minority group, namely members of the Hindu religion....

Plaintiff simply does not allege they are burdened, in any manner, from practicing their faith.... [H]aving failed to allege a cognizable injury, Plaintiff de facto lacks standing to assert a Free Exercise challenge to the Ordinance. Plaintiff’s Establishment Clause claim is similarly unavailing.... Fundamentally, Plaintiff’s reasoning is that the City of Seattle’s involvement on an issue of equal importance to practitioners of a certain religion becomes, as a consequence, activity in favor or opposition to that religion. And that, because the City of Seattle opted to disfavor caste-based forms of discrimination, a fortiori it condemned all notions of caste as it was understood by any religion. But that logic proves too much. And even assuming, arguendo, that the Ordinance does condemn notions of caste as is believed by a certain religion, that does not constitute activity in support or disparagement of that religion. For instance, birth control is a topic that involves both religious beliefs and general welfare concerns. And yet, no court has ever held that government approval of birth control violates the Establishment Clause....

It is not enough, in other words, that the anti-caste legislation strikes members of a religion as reflecting poorly on their religious beliefs.... In this case, the Ordinance’s principal effect is not to endorse a religion, but simply to bolster local anti-discrimination laws.  Any coincidental reference to a shared phenomenon (such as caste) is secondary, if not wholly, immaterial....

Second, Plaintiff contends that the Ordinance violates the Equal Protection Clause....

Nowhere does the text of the Ordinance make use of prohibited classifications.  Rather, the Ordinance is facially neutral and of general applicability.  Moreover, wholly absent from Plaintiff’s complaint are any facts suggesting that the legislative drafters were actually motivated by racial or ethnic animus.... Further to the point, Plaintiff’s complaint does not plausibly allege that the City of Seattle has applied the Ordinance in a discriminatory manner.

Recent Articles of Interest

From SSRN:

• James Gerard Dwyer, Smith's Last Stand? Free Exercise and Foster Care Exceptionalism, (University of Pennsylvania Journal of Constitutional Law, Vol. 24, No. 856, 2022).
• Jianlin Chen, Law and Politics of Religious Fraud Regulation: China, Taiwan and Hong Kong, (Edward Elgar 2023).
• Kyle Velte, Debunking the Narrowness Narrative in LGBTQ Religious Exemption Claims, (St. Louis University Law Journal (forthcoming 2024) (Childress Lecture Symposium)).
• Aziza Ahmed, Nicole Huberfeld & Linda C. McClain, Introduction: Securing Reproductive Justice After Dobbs, (51 Journal of Law, Medicine, & Ethics 463 (Fall 2023)).
• Kenneth Robert Davis, A Farewell to Harms: Rethinking the Injury Requirements of Title VII, (Harvard Journal on Legislation, Vol. 61, No. 1, 2024).

From SmartCILP:

• Syafiq Hasyim, Book Review. The Shariatisation of Indonesia: The Politics of the Council of Indonesian Ulama (MUI), by Syafiq Hasyim, 57 Law & Society Review 554-556 (2023).
• Hayden J. Bellenoit, Legal Limbo and Caste Consternation: Determining Kayasthas' Varna Rank in Indian Law Courts, 1860–1930, 41 Law & History Review 43-63 (2023).
• Paolo Astorri, The Redefinition of Clandestine Marriage by Sixteenth-Century Lutheran Theologians and Jurists, 41 Law & History Review 65-92 (2023).

Federal Agencies Finalize Rule Amendments on Grants to Faith-Based Organizations

On March 4, nine federal agencies published a 52-page joint release titled Partnerships With Faith-Based and Neighborhood Organizations (full text) in the Federal Register amending rules adopted by them during the Trump Administration. In a press release, Americans United summarizes the rule changes in part as follows:

The new regulations:

• Reinstate the requirement that people seeking services be informed of their religious freedom rights, which include that:

• They can’t be discriminated against because of their religion or because they are nonreligious.

• They can’t be required to pray or participate in religious activities.

• They can file a complaint if their rights are violated.

• Reinstate safeguards that ensure that people who obtain social services through vouchers are not forced to attend or participate in religious activities.

• Eliminate Trump-era provisions that were designed to allow social service providers to refuse to provide key services....

Ramadan Begins Sunday Evening

 As announced by the Fiqh Council of North America, Ramadan begins this evening (Sunday, March 10). CAIR has released a Ramadan Toolkit with templates for employees and students to use to seek accommodations for Ramadan observance.  It also includes templates and sample texts for a resolution on Ramadan and Eid that can be adopted by governmental bodies, as well as a template letter regarding a Gaza Ceasefire resolution.

Indiana Legislature Passes Bill Barring Antisemitism in Public Schools and Colleges

On Friday, the Indiana legislature gave final passage to House Bill 1002 (full text) which amends the state Education Code to specifically protect against antisemitism in public schools and colleges.  The bill, as finally enacted, defines antisemitism by adopting the text of the International Holocaust Remembrance Alliance's definition, but, in a compromise, excludes examples given by IHRA that, among other things, indicate when criticism of Israel amounts to antisemitism.  AP reports on the bill's passage, discussing the compromise in greater detail. The bill now goes to Governor Eric Holcomb for his signature.

Student Sues School Board Alleging Gender Affirming Policies Violate Her Rights

Suit was filed earlier this week in a Virgina state trial court by a high school student challenging Fairfax County School Board regulations (full text) that support transgender students.  The complaint (full text) in Doe v. Fairfax County School Board, (VA Cir. Ct., filed 3/4/2024), alleges in part:

... FCPS Regulation 2603.2 and its application unconstitutionally violates the Petitioner’s sincerely held philosophical and religious beliefs by compelling her to refer to “[s]tudents who identify as gender-expansive or transgender [] by their chosen name and pronoun ....  

... [They] further unconstitutionally violate the Petitioner’s philosophical and religious beliefs by compelling her to share a restroom with a biological male. 

... [They] unconstitutionally discriminate against the Petitioner on the basis of her sex by requiring her to use a private restroom to remain consistent with her beliefs while allowing a biological male to use the female restroom... [and by permitting] a biological male to feel safe and comfortable by having full access to any restroom of his choice while not allowing the Petitioner to feel safe and comfortable by using the restroom of her biological sex....

... FCPS has knowingly and blatantly violated the Petitioner’s rights by forcing her to accept the ideological viewpoint of the government and the claimed rights and privileges of other students. 

America First Legal issued a press release announcing its filing or the lawsuit. FFXNow reports on the lawsuit.

Alabama Passes Law Protecting IVF Clinics from Liability

Reacting to the recent Alabama Supreme Court decision holding that the state's wrongful death statute applies to the negligent destruction of frozen embryos created during IVF treatment, the Alabama legislature yesterday passed, and Governor Kay Ivey immediately signed SB159 (full text) which provides in part:

Related to in vitro fertilization and notwithstanding any provision of law ..., no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization....

... [N]o criminal prosecution may be brought for the damage to or death of an embryo against the manufacturer of goods used to facilitate the in vitro fertilization process or the transport of stored embryos.

The statute explicitly has retroactive effect. NPR reports on the new law.

Virginia Legislature Passes Symbolic Bill Recognizing Same-Sex Marriages

In Virginia, Governor Glenn Youngkin has until tomorrow to decide whether or not to sign HB 174/ SB 101 (full text) which provides:

No person authorized by § 20-14 to issue a marriage license shall deny the issuance of such license to two parties contemplating a lawful marriage on the basis of the sex, gender, or race of such parties. Such lawful marriages shall be recognized in the Commonwealth regardless of the sex, gender, or race of the parties.

Religious organizations and members of the clergy acting in their religious capacity shall have the right to refuse to perform any marriage.

As reported by Dogwood, the bill was introduced because of concern that the U.S. Supreme Court might overrule its caselaw protecting same-sex marriages. Even if the Governor signs the bill, its impact on same-sex marriages would only be symbolic since the Virginia Constitution Sec. 15-A prohibits recognition of same-sex marriages in the state and would take precedence over the statute if the U.S. Supreme Court returned the issue of recognition of same-sex marriages to the states.

9th Circuit Grants En Banc Rehearing in Huntsman's Suit Against LDS Church

In an Order (full text) issued March 1, the U.S. 9th Circuit Court of Appeals voted to grant en banc review in Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints.  In doing so, the Order vacates the decision of the 3-judge panel in the case in which James Huntsman, a prominent former member of the LDS Church who had contributed over $2.6 million to it, charged the Church with fraudulently misrepresenting the manner in which funds from tithes would be used. (See prior posting.) Arguments in the rehearing are set for June 24.  ABC News 4 reports on the court's action.

Christian Organization Challenges Grant Rule Barring Religious Favoritism in Hiring

Suit was filed this week in an Oregon federal district court challenging an anti-discrimination rule of the Oregon Department of Education that disqualified a Christian youth-mentoring ministry from receiving $410,000 in grants for which it had initially been selected. The Christian group requires all of its board members, its 30 employees and 100+ volunteers to adhere to the organization's Statement of Faith. The Grant Program's rule bars grantees from favoring co-religionists as employees or volunteers. The complaint (full text) in Yourh 71Five Ministries v. Williams, (D OR, filed 3/4/2024), contends that the rule violates its Free Exercise and Free Expression rights, saying in part:

Because it emphasizes one-to-one mentoring and creating authentic, trusting relationships, 71Five Ministries depends on its staff and volunteers to fulfill the ministry’s distinctly Christian mission and purpose....

Defendants cannot disqualify otherwise eligible religious organizations from participation in otherwise available government benefit programs, including the Youth Community Investment Grant Program, “solely because of their religious character,”

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

Man Sentenced To 1 Year + For Threatening Synagogue Shooting

According to a press release from the U.S. Attorney's Office for the Western District of Michigan, on Monday a 20-year old Michigan man was sentenced to 12 months and one day in prison, 3 years of supervised release and restitution payment of $10,648 for sending numerous Instagram messages threatening a mass shooting at an East Lansing, MI synagogue. Notes on defendant's cell phone indicated that he planned to commit suicide after the mass shooting.

France Adds Abortion Rights to Its Constitution

 As reported by AP, France's Parliament yesterday gave final approval to a Constitutional amendment that guarantees abortion rights:

The measure was approved in a 780-72 vote in the Palace of Versailles. Abortion enjoys wide support in France across most of the political spectrum, and has been legal since 1975....

Both houses of France’s parliament, the National Assembly and Senate, had separately adopted a bill to amend Article 34 of the French Constitution, but the amendment needed final confirmation by a three-fifths majority in the special joint session. The measure specifies that “the law determines the conditions by which is exercised the freedom of women to have recourse to an abortion, which is guaranteed.”...

The government argued in its introduction to the bill that the right to abortion is threatened in the United States, where the Supreme Court in 2022 overturned a 50-year-old ruling that used to guarantee it....

Christian Employers Protected from Requirement to Provide Insurance for Gender Transition Procedures

 In Christian Employers Alliance v. U.S. EEOC, (D ND, March 4, 2024), a North Dakota federal district court enjoined the Department of Health and Human Services from enforcing the Affordable Care Act, and the EEOC from enforcing Title  to require the Christian Employers Alliance or its present or future members to provide their employees insurance coverage for gender transition procedures. The court said in part:

... [I]f CEA had to comply with these mandates, its members would have to violate their sincerely held religious beliefs which is an impermissible exercise under the First Amendment and RFRA. ...

While protecting the right of transgender patients to access crucial healthcare and protecting workers from sex discrimination is certainly a compelling interest, the Defendants here have done nothing more than identify a broadly formulated interest in an attempt to justify the general applicability of the government mandates....  Even if the Court were to accept the Defendants’ purpose for the mandates as a compelling interest, the Defendants failed to provide any evidence showing this policy was the only feasible means to achieve its compelling interest....

Just The News reports on the decision.

Right Wing Catholic Website Will Close Down After Settling Defamation Lawsuit

 AP reports on the imminent closing of the Church Militant website following the website's settlement of a defamation lawsuit.  According to AP:

A far-right, unofficial Catholic media website has agreed to pay $500,000 to a New Hampshire priest who sued for defamation over a 2019 article that it now disavows. The website also is planning to shut down soon, the priest’s attorney says.

The apology by Church Militant [full text] came after the organization agreed last week to a federal court judgment in favor of the Rev. Georges de Laire, an official with the Diocese of Manchester. This legal setback comes just months after its founder’s resignation over a breach of its morality clause.

“As part of the parties’ resolution, Church Militant has represented that it will be shutting down at the end of April,” attorney Howard Cooper of the Boston law firm Todd & Weld, which represented de Laire, said via email....

Church Militant and its sleek newscasts drew a loyal following for years with a mix of fiercely right-wing politics and radically conservative Catholicism in which many of America’s bishops were viewed with suspicion and disgust. It “is not recognized as a Church apostolate” and lacks authorization to promote itself as Catholic, according to the Archdiocese of Detroit, in whose territory it is based....

The full AP article has additional details.

UPDATE: On March 7, AP reports that in the settlement of a lawsuit the city of Baltimore has agreed to pay $275,000 toward the legal fees incurred by St. Michael's Media, the parent of Church Militant.  The suit successfully prevented the city from cancelling a protest rally against Catholic Bishops. (See prior posting.)

Certiorari Denied in Ministerial Exception Case

Yesterday the U.S. Supreme Court denied review in two companion appeals, Bowes v. Liberty University, Inc. (Docket No. 23-550) and Liberty University, Inc. v. Bowes (Docket No. 23-703, certiorari denied 3/4/2024) (Order List.).  The three judges on the 4th Circuit panel deciding the case below each had a different view on application of the ministerial exception doctrine in this age discrimination case brought by a Liberty University art professor. (See prior posting.) The case also posed other interpretive questions under Title VII of the 1964 Civil Rights Act.

9th Circuit En Banc Refuses to Bar U.S. Transfer of Sacred Apache Site to Copper Mining Company

In Apache Stronghold v. United States, (9th Cir., March 1, 2024), the U.S. 9th Circuit Court of Appeals sitting en banc, by a vote of 6-5, refused to enjoin the government from transferring to a copper mining company federally-owned forest land that is of significant spiritual value to the Western Apache Indians. The land sits on the third largest deposit of copper ore in the world. The case generated six separate opinions spanning 241 pages. The court's per curiam opinion summarizes the holding:

A majority of the en banc court ...concludes that (1) the Religious Land Use and Institutionalized Persons Act of 2000 ... and the Religious Freedom Restoration Act ... are interpreted uniformly; and (2) preventing access to religious exercise is an example of substantial burden.  A majority of the en banc court therefore overrules Navajo Nation v. U.S. Forest Service to the extent that it defined a “substantial burden” under RFRA as “imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions (Yoder).”...   

A different majority ...concludes that (1) RFRA subsumes, rather than overrides, the outer limits that the Supreme Court’s decision in Lyng v. Northwest Indian Cemetery Protective Ass’n ... places on what counts as a governmental imposition of a substantial burden on religious exercise; and (2) under Lyng, a disposition of government real property does not impose a substantial burden on religious exercise when it has “no tendency to coerce individuals into acting contrary to their religious beliefs,” does not “discriminate” against religious adherents, does not “penalize” them, and does not deny them “an equal share of the rights, benefits, and privileges enjoyed by other citizens.”... The same majority holds that Apache Stronghold’s claims under the Free Exercise Clause and RFRA fail under these Lyng-based standards and that the claims based on the 1852 Treaty fail for separate reasons.  

We therefore AFFIRM the district court’s order denying the motion for a preliminary injunction.

Becket issued a press release announcing the decision and saying in part: "With the help of Becket, Apache Stronghold has vowed to appeal the decision to the U.S. Supreme Court." Los Angeles Times reports on the decision.

UPDATE: On May 14, 2024, the Court issued an amended opinion, clarifying some of the reasoning of the majority.

Recent Articles of Interest

From SSRN:

• Rebecca Aviel, Margot E. Kaminski, Toni Marie Massaro & Andrew Keane Woods, From Gods to Google, (Yale Law Journal, Forthcoming (2024)).
• Doron Dorfman, Third-Party Accommodations, (Michigan Law Review, 2025, Forthcoming).
• Amos N. Guiora, Diana Pogosyan & Matylda Blaszczak, Sacred Secrets Enabling Child Sex Abuse, (49 Law & Psych. Rev. (forthcoming June 2025)).
• Emad H. Atiq, Chapters 2 & 3 of Contemporary Non-Positivism, (Forthcoming in Cambridge University Press (Cambridge Elements Series in the Philosophy of Law)).
• Howard Schweber, "Pray Liberty of Conscience to Revive Us": James Madison's Understanding of Religious Liberty in the US Constitution, (October 9, 2021).
• Sohaib Mukhtar, Malieka Farah Deeba & Ahmad Talha, Misconceptions Over Gender Inequalities in Islamic Law and Pakistan: A Comparative Analysis, (Al-Idrak Research Journal Volume 3, Issue 2, 2023).
• Philip Hackney, Keep Charitable Oversight in the IRS, (Columbia Journal of Tax Law, Vol. 15, forthcoming, 2024).

From SmartCILP:

• Yuksel Sezgin, Undignified Jurispathy: Muslim Family Law at Ghanaian Courts. 48 Law & Social Inquiry 1303-1333 (2023).
• Mark Strasser, COVID-19, Free Exercise, and Most Favored Nation Status, 27 Lewis & Clark Law Review 1-38 (2023).

RLUIPA Safe harbor Does Not Extend to Claims for Monetary Damages

 In Bair Brucha Inc. v. Township of Toms River, New Jersey, (D NJ, Feb. 29, 2024), a New Jersey federal district court granted plaintiffs judgment on the pleadings on their RLUIPA and Free Exercise challenges to discriminatory land use regulations that prevented their construction of a synagogue.  Plaintiffs claimed that Toms River had engaged in an orchestrated effort to prevent the growth of the Orthodox Jewish population in the town. Subsequent to the filing of this lawsuit, the township amended its zoning regulations in a settlement of a RLUIPA suit brought by the Justice Department. Plaintiffs did not deny that their original regulations violated the Equal Terms and the Exclusion and Limits provisions of RLUIPA. However, they contended that since the zoning ordinances have subsequently been amended, the township is covered by the safe harbor provision in RLUIPA that shields a local government from the preemptive force of RLUIPA if it subsequently amends its land use regulations to remove the burdensome or discriminatory provisions. The court held that the safe harbor provision does not extend to claims for monetary damages incurred before the township took corrective action.

Also finding a violation of the Free Exercise clause, the court concluded that the land use regulations were neither neutral nor generally applicable and that antisemitic animus was a motivating factor behind the land use regulations.

Title VI Claims Against Universities Proliferate Since Israel-Gaza Conflict

As previously reported, in November 2023 the Department of Education issued a "Dear Colleague" letter in response to rising levels of antisemitic and Islamophobic incidents at schools and colleges since the October 7 Hamas attack on Israel and the Israeli response. The letter clarifies that even though Title VI does not specifically cover religious discrimination, many types of antisemitic and Islamophobic attacks fall under other types of discrimination covered by Title VI. The Forward yesterday reported that it has tracked 48 Title VI investigations by DOE's Office of Civil Rights filed since November charging higher education institutions with antisemitism, Islamophobia or similar discrimination, as well as ten lawsuits filed by private parties making similar contentions filed since then. It has published a detailed listing of all the investigations and cases it has tracked. The Forward explains:

When Ken Marcus took over the department’s civil rights office during the George W. Bush administration, he started looking for test cases for a new category of “shared ancestry” that would allow officials to investigate cases that touched on religion. He found one when a Sikh child in New Jersey was beaten by classmates who saw his turban and taunted him as “Osama,” a reference to the infamous Muslim terrorist.

Marcus believed that the discrimination wasn’t strictly religious in nature because the bullies weren’t intending to go after the boy’s Sikh identity. And it wasn’t obviously racial, either, since it was the turban that had drawn the bullies’ attention.

He authorized the department to investigate these types of cases under its authority to prohibit discrimination based on race or national origin, creating a new category called “shared ancestry.” Every subsequent administration has agreed that these cases fall under the department’s purview.

More controversial is the question of what, exactly, constitutes discrimination against Jews based on their shared ancestry. Marcus and many Jewish advocacy groups have taken the position that anti-Zionism — opposition to a Jewish state in Israel — is often antisemitic because many Jews identify with Israel as part of their shared ancestry.

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.