3 More Leaders of Extremist Jewish Sect Convicted in 2018 Kidnappings

In a March 27 announcement (full text), the U.S. Attorney for the Southern District of New York said in part:

Yoil Weingarten, Yakov Weingarten, and Shmiel Weingarten, leaders of Lev Tahor, an extremist Jewish sect based in Guatemala, have been found guilty of kidnapping a 12-year-old boy and a 14-year-old girl and transporting the 14-year-old girl outside the United States to continue a sexual relationship with her adult male ‘husband.’  With this verdict, all nine Lev Tahor leaders and operatives charged for these heinous crimes have been held accountable.

Rockland/ Westchester Journal News has a lengthier account of the convictions for the 2018 kidnappings, saying in part:

A jury in White Plains federal court took less than four hours to reject the claims of Shmiel, Yakev and Yoil Weingarten that the girl and her 12-year-old brother ... were rescued from abusive treatment in New York and that reuniting the girl with her community and 20-year-old husband had nothing to do with sex.

They face up to 30 years in prison, including a minimum of 10 years on the charge of transporting a minor for sex. They were also convicted of conspiracy charges and international parental abduction. U.S. District Judge Nelson Roman scheduled sentencing for July 9.

(See prior related posting.)

First Amendment Precludes Court from Enforcing Mahr in Divorce Action

 In Omid v. Ahmadi, (CT Super., March 18, 2024), a Connecticut state trial court in a action for dissolution of a marriage refused to enforce a mahr (dowry) agreement because interpreting it would require the court to interpret religious principles.  The mahr was entered by the parties in connection with their marriage in Afghanistan. The husband who had apparently been a translator for the U.S. military during the Afghan war received a visa to the United States and then returned to Afghanistan for one month to enter an arranged marriage. Three years later he arranged for his wife to obtain a U.S. visa. One year after she came to the U.S., the parties separated. In denying the wife's request in the dissolution case for an order enforcing the mahr, the court said in part:

The parties disagree as to when the 100,000 Afghanis must be paid, and whether, as the defendant argues, the terms "prompt" and "deferred" as used in the agreement describe a general duty to pay at any time, or a specific duty to pay one amount before marriage and one amount upon divorce or death of the husband. The term "prompt" in the parties' agreement is ambiguous and would require the court to look outside the four corners of the contract....

On the basis of the foregoing, to the extent that construction of the contract language would require this court to reference Islamic religious principles to determine the meaning of the terms employed, such action would likely violate the religion clauses of the first amendment of the United States constitution. The present agreement is sparse, and its terms are ill-defined without extratextual evidence. Because this extratextual evidence involves considerations of what the terms mean under Islamic law, the agreement is unenforceable because it is likely impossible for the court to disentangle secular from religious considerations.

West Virginia Governor Vetoes Vaccine Mandate Opt-Out for Parochial Schools

On Wednesday, West Virginia Governor Jim Justice vetoed House Bill 5105 which would have allowed private and parochial schools to opt out of the state's mandatory vaccination requirements for students. It also would have exempted full-time virtual public-school students from the immunization requirements unless they participate in activities that also involve other schools. In his Veto Letter (full text), the Governor says in part:

Since this legislation was passed, I have heard constant, strong opposition to this legislation from our State's medical community....

Additionally, we have heard from many private and parochial institutions all around the State, likewise requesting this bill be vetoed. We have heard from this community that they see this bill as purely divisive and, if signed into law, requiring consideration of adopting policies that will result in parents pulling their children from their schools.

AP reports on the Governor's action.

Restricting Frequency of Church Free Meal Services Violates RLUIPA

 In St. Timothy's Episcopal Church v. City of Brookings, (D OR, March 27, 2024), an Oregon federal district court held that a zoning ordinance that limits the number of days that a church can serve free meals to people in need violates the federal Religious Land Use and Institutionalized Persons Act. St. Timothy's has been offering free lunchtime meals since 2009 and sees this as fundamental to their Episcopalian faith. Most recently meals have been served three to four times per week. In 2021, the city amended its zoning code to require a conditional use permit for "benevolent meal services" in residential districts and limited such services to two times per week. Finding that the city has burdened the church's religious exercise without a compelling interest in violation of RLUIPA, the court said in part:

[P]rotecting the public welfare, maintaining peace and order, and preventing crime are all certainly compelling government interests in a broad, general sense. However, the City has not articulated how the specific provisions of the Ordinance that limit meal service to two days per week ... serve to protect public welfare, maintain peace and order, or prevent crime in practical application. The Court can find no logical, causal relationship between the limitation and these interests....

Here, the City has long permitted, and arguably even supported benevolent meal services at St. Timothy's, without limitation as to the number of days such meals could be provided. This undisputed fact is fatal to their argument that the Ordinance's restrictions are intended to promote public welfare, peace, and order, and to deter crime....

... [T]he City has not shown that it considered and rejected the efficacy of less restrictive measures.

Tennessee Passes Law Banning Religious and Ideological Discrimination by Banks and Insurance Companies

The Tennessee legislature this week gave final approval to HB 2100 (full text) which prohibits banks and insurance companies from denying or cancelling services based on a customer's religious beliefs, practices or affiliations or the customer's political opinions, speech or affiliations. The bill also bans financial institutions and insurance companies from discriminating against customers based on a number of other factors such as firearm ownership, failure to meet environmental standards, or support of the government in combatting illegal immigration, drug trafficking or human trafficking. However, the bill permits financial institutions or insurance companies that claim a religious purpose to provide or deny service based on a customer's religious beliefs, exercise, or affiliation. The bill now goes to Governor Bill Lee for his signature. ADF issued a press release on the passage of the legislation.

District Court Enters Final Order in Wedding Website Designer Case

As previously reported, last year the U.S. Supreme Court in 303 Creative LLC v. Elenis held that the 1st Amendment's free speech protection bars Colorado from using its public accommodation anti-discrimination law to require a wedding website designer to design websites for same-sex weddings in violation of her religious beliefs. Now in the case on remand, 303 Creative LLC v. Elenis, (D CO, March 26, 2024), the Colorado federal district court entered a final Order in the case which provides in part:

ORDERED that the First Amendment’s Free Speech Clause prohibits Colorado from enforcing CADA’s Communication Clause to prevent plaintiffs from posting the following statement on her website or from making materially similar statements on her website and directly to prospective clients:  

I firmly believe that God is calling me to this work. Why? I am personally convicted that He wants me – during these uncertain times for those who believe in biblical marriage – to shine His light and not stay silent. He is calling me to stand up for my faith, to explain His true story about marriage, and to use the talents and business He gave me to publicly proclaim and celebrate His design for marriage as a life-long union between one man and one woman.  

These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage – the very story He is calling me to promote.

It is further ORDERED that defendants, their officers, agents, servants, employees, attorneys, and those acting in active concert or participation with them who receive actual notice of this order are permanently enjoined from enforcing:  

a. CADA’s Accommodations Clause to compel plaintiffs to create custom websites celebrating or depicting same-sex weddings or otherwise to create or depict original, expressive, graphic or website designs inconsistent with her beliefs regarding same-sex marriage; and  

b. CADA’s Communication Clause to prevent plaintiffs from posting the above statement on her website and from making materially similar statements on her website and directly to prospective clients.

DOJ Sues California Prisons for Failing to Accommodate Officers' Religious Beard Requirements

The Department of Justice this week filed suit in a California federal district court seeking to enjoin the California correctional system from requiring its peace officers to be clean shaven in contravention of their sincerely held religious beliefs.  The problem arose for Muslim and Sikh correctional employees when they were required to meet the conditions for wearing tight-fitting respirators.  The complaint (full text) in United States v. California Department of Corrections and Rehabilitation, (ED CA, filed 3/25/2024), contends that the Department of Corrections has not attempted to accommodate the peace officers' concerns by offering them positions in the Department that do not require wearing of respirators or by offering alternative respirators that could be worn with beards.  The complaint alleges in part:

The Charging Parties allege that CDCR has discriminated against them on the basis of religion in violation of Title VII, 42 U.S.C. § 2000e(a)(2), by: a. Failing to provide a religious accommodation;  b. failing to adequately engage in the interactive process with the Charging Parties, including by failing to make good faith efforts to consider whether alternative accommodations will eliminate the conflict between the Charging Parties’ religious beliefs and CDCR’s clean  shaven policy; and c. failing to demonstrate that implementing the alternative accommodations proposed by the Charging Parties would pose an undue hardship.

The Department of Justice issued a press release announcing the filing of the lawsuit. AP reports on the lawsuit.

New Idaho Law Bars Adverse Action Because of Religious Conduct in Adoption, Foster Care, Licensing and State Contracting

On Monday, Idaho Governor Brad Little signed House Bill 578 (full text) which prohibits state and local governments from treating adversely any adoption or foster care agency that declines to provide services because of a sincerely held religious belief. The new law also provides:

The state government shall not take any discriminatory action against a person who the state grants custody of a foster or adoptive child wholly or partially on the basis that the person guides, instructs, or raises a child, or intends to guide, instruct, or raise a child, based on or in a manner consistent with a sincerely held religious belief. The state government may consider whether a person shares the same religious or faith tradition as a foster or adoptive child when considering placement of the child in order to prioritize placement with a person of the same religious or faith tradition.

The new law goes on to provide that the state cannot deny licensing or the award of a contract to a person because the person believes, maintains policies and procedures, or acts in accordance with a sincerely held religious belief. ADF issued a press release announcing the governor's signing of the bill.

California's Removal of Personal Belief Exemption from School Immunization Requirement Is Upheld

 In Royce v. Bonta, (SD CA, March 25, 2024), a California federal district court upheld the constitutionality of a law enacted by California in response to a 2015 measles outbreak. The law removed the personal belief exemption, but retained the medical exemption, from the requirement that school children enrolled in public and private schools be immunized against nine specific diseases.  The law also gives immigrant and homeless children a grace period in which to prove compliance with the immunization requirement. The court rejected parents free exercise challenge to the law, concluding that the law is neutral and generally applicable, saying in part:

In considering California’s interest in the health and safety of students and the public at large, the risk posed by SB 277’s enumerated exemptions does not qualify as comparable to the risk posed by a personal belief exemption....  Accordingly, SB 277 is generally applicable....

There is a legitimate State interest in protecting the health and safety of students and the public at large, and SB 277’s repeal of California’s prior personal belief exemption is rationally related to furthering that interest.  Because Plaintiffs fail to allege facts from which an inference can be drawn to hold otherwise, SB 277 survives rational basis review.  Accordingly, Plaintiffs’ Free Exercise claim fails as a matter of law.

Supreme Court Hears Oral ArgumentsToday On Abortion Pill Restrictions

 The U.S. Supreme Court is hearing oral arguments today in two related cases-- FDA v. Alliance for Hippocratic Medicine and Danco Laboratories, LLC v. Alliance for Hippocratic Medicine.  At issue is the FDA's actions in 2016 and 2021 regarding the administration and distribution of the abortion pill mifepristone. (See prior posting.) Links to briefs and pleadings in the cases can be found on the SCOTUSblog case pages (Danco, Alliance).  Live audio broadcast of the arguments beginning at 10:00 AM EDT can be accessed here. SCOTUS blog has further background on the issues being argued today. This posting will be updated to link to the transcript and recording of the arguments when they become available later today.

UPDATE: Here is a link to the transcript and audio of this morning's oral arguments. NBC News reports on the oral arguments.

Interference With Contractual Relationship Created by Jewish Marriage Contract Is Not Actionable

In S.E. v. Edelstein, (OH App., March 25, 2024), an Ohio state appellate court affirmed the dismissal of a suit for intentional interference with a contractual relationship brought by an Orthodox Jewish wife (Kimberly) against her father-in-law (Max) who disapproved of her marriage to his son (Elliott). The court held that the suit essentially sought damages for alienation of affections and breach of promise to marry which were barred as causes of action by Ohio Revised Code 2305.29. The court said in part:

In the complaint, it was alleged that Max had intentionally interfered with the ketubah, the supposed "contract" at issue in this case, by engaging in a continuous "campaign to undermine" Kimberly and Eliott's contractual relationship (i.e., their marriage) for nearly 20 years.  The complaint alleged that this included Max being "emotionally abusive" towards Kimberly, as well as Max making "negative and derogatory statements" about Kimberly.  This, according to the complaint, included Max criticizing Kimberly's "status as a convert to Judaism" and by frequently stating that Kimberly's and Eliott's children "were not Jewish."  The complaint also alleged that Max, "with the intent to destroy the contractual relationship between" Kimberly and Eliott, routinely disparaged Kimberly to "persuade" Eliott to "terminate his contractual relationship with [her]."...

[T]he complaint raises amatory claims of a breach of a promise to marry and alienation of affections against Max couched in terms of an intentional interference with a contractual relationship ..., loss of consortium... , loss of parental consortium ..., intentional infliction of emotional distress ...,, and malice.....  As stated previously, pursuant to R.C. 2305.29, neither Max, nor any other person, could be held liable in civil damages.... for any breach of a promise to marry or alienation of affection.  This holds true despite those claims being pled within the complaint in other, generally more suitable terms....   

Just as a rose is a rose by any other name, a non-actionable claim does not become actionable simply by masquerading as one that is....

Denial of Religious Exemption from Vaccine Mandate Did Not Violate Title VII or Constitution

In White v. University of Washington, (WD WA, March 22, 2024), a Washington federal district court rejected Title VII as well as constitutional challenges brought by a healthcare worker who was denied a religious exemption from Washington's Covid vaccine mandate. In discussing Plaintiff's Title VII claim of failure to reasonably accommodate, the court said in part:

With respect to COVID-19 in particular, guidance from the EEOC indicates that “increasing ‘the risk of the spread of COVID-19 to other employees or to the public’” is a ground for finding undue hardship on employers asked to grant religious exemptions to COVID-19 vaccination mandates....

 The Ninth Circuit also has found on a motion to dismiss that undue hardship is established as a matter of law where a religious accommodation would require an employer to violate state or federal law.

The court also rejected plaintiff's due process, equal protection and free exercise claims, saying in part:

Plaintiff has made no allegations regarding what her religious beliefs are, let alone how they were burdened by Defendants’ adherence to Proclamation 21-14.

Denial of Church's Property Tax Exemption Did Not Violate RLUIPA

In Sandstrom v. Wendell, (WD NY, March 22, 2024), a New York federal district court rejected RLUIPA challenges to local tax officials' denial of a tax exemptions for two properties owned and converted to religious use by the Church of the Holy Redemption. Plaintiff, pastor of the church, argued that his religious exercise was substantially burdened by the denial. Tax officials contended that the Church did not qualify for a tax exemption. The court held in part:

[D]espite Plaintiff’s attempts to recharacterize his claims as amounting to a zoning challenge, ... Plaintiff has not plausibly alleged any burden on his religious beliefs apart from having to apply for tax-exempt status or being required to pay taxes.  At its core, Plaintiff is seeking a federal court ruling on a local tax matter, which is specifically circumscribed by the Tax Injunction Act and principles of comity....

Here, Plaintiff has not alleged that he submitted a meaningful application to challenge the controversy or gave Defendants an opportunity to commit to a position intended to be “final.”  Plaintiff does not allege that he completed the necessary requirements to challenge the properties’ status, commenced any appeal of the determination, or that such efforts would be futile, weighing against a finding that the claims are ripe....

Religious Marriage Without Marriage License and Later Annulled by Religious Court Is Still Recognized By New York

 In T.I. v. R.I., (NY Sup Ct Kings Cty, March 20, 2024), a New York state trial court held that the state would recognize a couple's marriage that was performed in a Jewish religious ceremony even though the couple did not obtain a civil marriage license and the marriage was annulled eight years later by a religious tribunal.  In a long-running dispute between the parties, there had been a prior divorce action which the parties discontinued and there had been protection orders in favor of the wife against the husband issued by the Family Court and Criminal Court. Now the husband, claiming that no marriage between them existed any longer, sought to have the wife's divorce action dismissed so that the court could not issue orders for him to pay child support, spousal maintenance or equitable distribution of property. According to the court:

The husband contends that the rabbinical court invalidated the parties' religious marriage on two Jewish religious concepts: 1) based upon "concealment" because the wife did not disclose her alleged mental health history to him prior to the religious solemnization ceremony; and 2) because the person who conducted the solemnization ceremony was not, although unknown to the parties, authorized to do so by at least some portion of the religious community....

Nothing related to the wife's request for a civil divorce requires this Court to address or assess the religious issues that the husband brought before the rabbinical court or that may have been part of the rabbinical court's determination and, as such, the husband's theory that the issue of whether the wife can seek a divorce of any marriage recognized by the State of New York is not prohibited by the First Amendment. Here, the determination of whether a marriage recognized by the State of New York exists between the parties separate and apart from any religious marriage rests not upon religious doctrine but upon neutral principles of law.

Any religious determinations and any ramification of religious doctrine made by the rabbinical court as to the parties' religious marriage are separate and apart from the Supreme Court's jurisdiction over whether, based on neutral principles of law, there exists here a marriage recognized by the State between the parties....

Recent Articles of Interest

From SSRN:

• Patrick E. Reidy, C.S.C., Churching NIMBYs: Creating Affordable Housing on Church Property, (Yale Law Journal, Vol. 133, No. 4, 2024).
• Nelson Tebbe, Does Dobbs Reinforce Democracy?, (Iowa Law Review, Vol. 108, No. 2363, 2023).
• Galym Zhussipbek, Assyltay Tasbolat & Zhanar Nagayeva, Interdisciplinary Approach to Overcoming the Persistence of Patriarchal Islamic Interpretations: Gender Equality, the Development of Empathy and Children’s Rights, and Insights from the Reformist Eurasian Scholars of Early Twentieth Century (February 8, 2024).
• Elicabeth Sepper, The Return of Boy Scouts of America v. Dale, (St. Louis University Law Journal, Vol. 68, 2024).
• Linda C. McClain, Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role of Barnette in 303 Creative LLC v. Elenis, (68 Saint Louis University Law Journal, 2024).
• Andrew M. Koppelman, The Supreme Court’s Gay Rights-Religious Liberty Contortions,  (Northwestern Public Law Research Paper No. 24-05 (2024)).
• Reva B. Siegel & Mary Ziegler, Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, (Yale Law Journal, Forthcoming).
• Rachel F. Moran, Affirmative Action, Religious Liberty, and The Freedom to Discriminate, (Canopy Forum On the Interactions of Law & Religion, March 2024).
• Lewis A. Grossman, Criminalizing Transgender Care, (March 19, 2024).
• Michael L. Smith, Social Media Regulation in the Wake of 303 Creative v. Elenis, (February 25, 2024).
• Adam Jay Hirsch,Beyond Privity of Blood: Intestacy and Charity, (UC Law Journal vol. 76, no. 2 (2025) (formerly Hastings Law Journal), Forthcoming).
  
  

From SmartCILP:

• Antony Barone Kolenc, Veritatis Splendor and State Accommodation of Religious Freedom, 21 Ave Maria Law Review 55-63 (2023).
• Stephen L. Mikochik, John Locke and John Paul II on the Nature of Work, 21 Ave Maria Law Review 64-70 (2023).
• Marianna Orlandi, The Age of No-Fault Divorce, the Jeweler's Shop, and the Need for Natural Marriage, 21 Ave Maria Law Review 71-95 (2023).
• Ronald J. Rychlak, John Paul II, the United Nations, and the Quest for Freedom, 21 Ave Maria Law Review 96-107 (2023).
• Stephen McLoughlin, Don't Say Gay or God: How Federal Law Threatens Student Religious Rights and Fails to Protect LGBTQ Students, 49 BYU Law Review 117-176 (2023).

Court Enforces Arbitration Award Requiring Husband to Furnish Jewish Bill of Divorce

In S.I. v. M.I., (NJ App., March 22, 2024), a New Jersey state appellate court held that a husband was required to comply with an arbitration agreement he had signed that required him to accept Rabbi David Twersky's decision on his obligation to give his wife a get (Jewish bill of divorce). The rabbi ordered giving of a get, but the husband refused to comply. The trial court declined to confirm the arbitration award because it concluded that it could not order a party to carry out a religious act.  The court of appeals reversed, saying in part:

Here, confirmation of the award can be granted under neutral principles of law and without interpretation of religious doctrine.  We therefore conclude the Establishment Clause is not violated because the parties' arbitration agreement regarding a get serves the "purpose of enforcing the parties' contractual obligations" and "encouraging divorce litigants to resolve disputes by negotiating and entering" into marital agreements....

Additionally, enforcement does not infringe on the Free Exercise Clause as the parties voluntarily entered into the MOU arbitration provision and agreement....

Confirmation of the award strictly required a determination of defendant's contractual obligation.

New Indiana Law Strengthens Parents' Right to Have Children Attend Released-Time Religious Instruction

Last week, Indiana Governor Eric Holcomb signed House Bill 1137 (full text) which strengthens parents' rights to have their children attend up to two hours per week of released-time religious instruction. Previously Indiana law permitted, but did not require, a public school to honor parents' requests for their children to attend up to two hours per week of religious instruction provided by a church or other religious educational organization. As amended, the law now requires the principal to allow attendance at up to two hours of religious instruction when a parent has requested it. The law calls for the principal, the parent and the religious school to work cooperatively in finding the least disruptive time for the religious instruction. ADF issued a press release on the new legislation.

7th Circuit: Refusal to Dismiss Under Church Autonomy Doctrine Is Not Appealable Interlocutory Order

 In Garrick v. Moody Bible Institute, (7th Cir., March 18, 2024), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, held that that an order refusing to dismiss a Title VII employment discrimination case under the church autonomy doctrine is not an appealable interlocutory order. The suit was brought by a former communications instructor who claimed sex discrimination.  According to the Bible Institute, the instructor's firing resulted from her disagreement with the Institute's doctrine that only men should serve as clergy. Plaintiff contended that this was merely a pretext for sex discrimination. In denying appealability, the court said in part:

... Moody’s argument that it will experience irreparable harm without immediate review and reversal of the district court’s order is unavailing. Religious autonomy to shape and control doctrine will not be threatened. Within its discretion to manage discovery, the district court should limit discovery to instances of discriminatory treatment in situations not implicated by Moody’s complementarian beliefs.

Judge Brennan dissented, arguing that the interlocutory dismissal order should be appealable. Americans United issued a press release announcing the decision.

Satanic Temple Sues School Board Over Discriminatory Rental Fees for Satan Club

The Satanic Temple filed suit this week in a Tennessee federal district court complaining that the Memphis-Shelby County School Board is placing hurdles in the way of its renting space for use by an After-School Satan Club. The complaint (full text) in The Satanic Temple, Inc. v. Shelby County Board of Education, (WD TN, filed 3/19/2024), alleges in part:

160. ... MSCS has demonstrated a widespread custom and practice of unnecessarily delaying approval or denial of the Satanic Temple’s rental applications....

169. ... MSCS is unconstitutionally discriminating against the Satanic Temple on the basis of its disfavored viewpoint and the content of its speech by charging the Temple a discriminatory hourly rental rate for its monthly ASSC meetings and ... an arbitrary and exorbitant security fee while not charging the same rates or security fees to the Good News Club....

170. ... MSCS’s discriminatory actions are ... arising from disagreement with, and hostility toward, the viewpoint and/or content of the Satanic Temple’s speech, as well as hostility towards the Satanic Temple’s religion by school board members, MSCS administrators, MSCS officials, community members and others....

196. The Satanic Temple’s before- and-after school clubs are a vital part of its religiously motivated mission to provide a safe, inclusive, and welcoming club for students whose parents are members of the Satanic Temple, as well as other students who may not feel welcomed or comfortable at other available before- or after-school religious clubs.

197. MSCS’s widespread custom and practice of discriminating against the Satanic Temple and attempting to constructively block and deter the ASSC from meeting ... substantially burdens the Satanic Temple’s exercise of its sincerely held non-theistic religious belief.

Freedom From Religion foundation issued a press release announcing the filing of the lawsuit.

4th Circuit: Inmate's Claim for Religious Diet Should Move Forward

In Pendleton v. Jividen, (4th Cir., March 20, 2024), the U.S. 4th Circuit Court of Appeals held that a West Virginia federal district court should not have dismissed a RLUIPA religious diet claim brought by an inmate who follows the Sufi Original Traditions of Islam. Those Traditions allow him to only eat fruit, vegetables and certain fish. The court said in part:

In 2014 ... prison officials introduced a new diet program for those with religious dietary restrictions. Under that program, a single “religious special diet” is served—one designed to meet the needs of all faiths by following the rules of the most diet-restrictive ones. With all forms of meat off the table, the diet uses soy as its primary protein source....

Although Pendleton’s religious beliefs do not forbid consumption of soy as such, the complaint alleges that Pendleton experiences vomiting, abdominal pain, constipation, and other digestive issues when he does so. And this, the complaint asserts, is of “religious significance” to Pendleton because his inability to properly digest soy renders such foods "Haram" for him....

Defendants insist that Pendleton could obtain a meat-free and soy-free diet by obtaining test results showing he has a medically significant allergy to soy. And, the defendants continue, because Pendleton has refused to submit to allergy testing ... he has not plausibly alleged a substantial burden on his religious practice. That argument fails too. Pendleton need not produce documentation of his alleged soy allergy to survive a motion to dismiss.... Even if Pendleton took an allergy test and that test was negative, it would not eliminate his religiously based objections to eating soy.  For that reason, Pendleton has plausibly alleged a substantial burden on his religious practices, and the district court erred in concluding otherwise.

Christian Food Ministry Sues to End City's Attempts to Close It Down

 Last week, a Yuma County, Arizona Baptist church filed suit in an Arizona federal district court challenging actions the city of San Luis has taken to close down the church's food distribution ministry which it has operated for 23 years. The complaint (full text) in Gethsemani Baptist Church v. City of San Luis, (D AZ, filed 3/13/2024), says that with the election of a new mayor in 2022, the city ended its prior support for the food ministry and used zoning rules to attempt to end its operations. The city contends that the growth of the church's Food Ministry has changed it sufficiently that it may no longer rely on its prior treatment as a legal non-conforming use. The church alleges that the city's actions violate RLUIPA, the Free Exercise Clause, and Arizona's Free Exercise of Religion Act. First Liberty issued a press release announcing the filling of the lawsuit.

Indiana Governor Vetoes Antisemitism Bill for Omitting Examples in Widely-Adopted Definition

As previously reported, earlier this month the Indiana legislature passed House Enrolled Act 1002 which would amend the state Education Code to specifically protect against antisemitism in public schools and colleges. The bill adopts the International Holocaust Remembrance Alliance's Working Definition of Antisemitism, but, in a controversial compromise, excludes examples given by IHRA that, among other things, indicate when criticism of Israel amounts to antisemitism. As reported by JNS, that exclusion led Jewish groups to encourage Governor Eric Holcomb to veto the bill, which he did on Monday. His veto message (full text) said in part:

While I applaud the General Assembly's effort to address and define antisemitism, I cannot agree with the outcome. The language that emerged in the final days of the session fails to incorporate the entire International Holocaust Remembrance Alliance ("IHRA") definition and its important contemporary examples. Additionally, the confusing language included in the bill could be read to exclude those examples....

However, I also refuse to leave a void as to Indiana's stance on antisemitism. That is why I am happy to share that I have also signed a proclamation reiterating that Indiana condemns all forms of antisemitism and ensures we join numerous states and countries by supporting the entire IHRA definition with its inextricable examples....

The Governor's lengthy Proclamation (full text) says in part:

Whereas, the Working Definition provides a clear, comprehensive and non-legally binding definition that can be used to determine contemporary manifestations of antisemitism.... 

The State of Indiana condemns antisemitism and stands in solidarity with the Jewish community in the face of this pernicious and insidious hatred.

While the Proclamation makes clear that its embrace of the IHRA Working Definition includes its examples, the Proclamation makes no explicit mention of criticism of Israel.

Montana Supreme Court Says AG Wrongly Rejected Language of Reproductive Rights Initiative

In Montanans Securing Reproductive Rights v. Knudson,(MT Sup. Ct., March 18, 2024), the Montana Supreme Court held that the state Attorney General was incorrect in in concluding that a proposed reproductive rights ballot initiative violates the separate vote requirement of the Montana Constitution. It also held that the Attorney General lacked authority to append a fiscal statement to the initiative. The court ordered the Attorney General to prepare a ballot statement for the initiative and forward it to the Secretary of State. 

Justice McKinnon filed a concurring opinion. Justice Rice filed a dissenting opinion, saying in part:

I believe it is clear that the provisions of CI-14 are not readily understood, have effects that are concealed, and would result in voter confusion this review is designed to prevent.

(See prior related posting.) Montana Free Press reports on the decision. [Thanks to Thomas Rutledge for the lead.]

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.