Denial of Religious Exemption from Vaccine Mandate Upheld

 In Matter of Ferrelli v State of New York, (App. Div., April 16, 2024), a New York state appellate court upheld the denial of religious exemptions from the Covid vaccine mandate imposed for employment in the New York court system, The court held that the mandate was a neutral law of general applicability and thus was subject only to rational basis review. The court went on:

Marie Zweig, submitted her initial religious exemption application asserting that because of her Christian belief in the sanctity of life, she could not "in good conscience receive or benefit from the use of vaccines that are either tested on or produced using human cell lines derived from voluntarily aborted fetuses." On the supplemental form, Zweig acknowledged that she took over-the-counter medicines and would continue to do so, stating that she had "no knowledge that they were originally developed with the use of cell lines from aborted fetuses and [she] [has] determined that [she] can take them in good conscience" because "they were developed and approved long before they were tested on fetal cell lines." Respondents denied Zweig a religious exemption on the grounds that she failed to set forth a sincerely held religious belief....

... While reasonable people may disagree, upon review of Ms. Zweig's application, this Court cannot conclude that respondents' determination to deny her a religious exemption was so irrational as to be arbitrary and capricious....

5th Circuit Denies Further Relief to Native American Church Objecting to Park Modifications

As previously reported, last year a Texas federal district court held that members of the Lipam-Apache Native American Church should be given access for religious services to a point on the San Antonio River which is a Sacred Site for them.  The court refused to grant plaintiffs' request that the proposed improvements to the park in which the Sacred Site is located be limited so that the spiritual ecology of the Sacred Area would be preserved by minimizing tree removal and allowing cormorants to nest. Plaintiffs appealed the injunction denials.  In Perez v. City of San Antonio, (5th Cir., April 11, 2024), the U.S. 5th Circuit Court of Appeals affirmed the district court. Rejecting appellants' claim under the Texas Religious Freedom Restoration Act, the court said in part:

In analyzing Appellants’ contention that the destruction of the tree canopies, where cormorants nest, and the driving away of the cormorants themselves will burden their religions, we consider whether the presupposed burden is real and significant....

Appellants continue to have virtually unlimited access to the Park for religious and cultural purposes. Appellants’ reverence of the cormorants as sacred genesis creatures from the Sacred Area is not implicated here because the City’s rookery management program does not directly dictate or regulate the cormorants’ nesting habits, migration, or Park visitation. For example, the record shows that, regardless of the rookery management program, no cormorants, due to their migration patterns, inhabit the area for extended periods of time each year. Moreover, the City’s rookery management program does not substantially burden Appellants’ religious beliefs because cormorants can still nest elsewhere in the 343-acre Park or nearby. The deterrent activities are deployed only within the two-acre Project Area and only to persuade the birds to nest elsewhere....

The record indicates that various areas of the Park “become nearly unusable for 10 months of the year due to the bird density/habitat.”...

 [T]he City’s tree removal plan is narrowly tailored to achieve the City’s compelling governmental interest of making the Project Area safe for visitors to the Park....

Appellants assert that the City’s plan violates the religious-service protections provision of the Texas Constitution....

Even accepting that the “relatively new provision bars any government action that prohibits or limits religious services,” Appellants do not sufficiently brief the question of whether a compelled “preservation of spiritual ecology” was envisioned in the statute’s definition of a “religious service” protected from state sanctioned prohibitions or limitations.

Judge Higginson dissented in part, contending that the city should have done more to accommodate plaintiffs as to tree removal and anti-nesting matters.

Apaches Seek Review of Their RFRA Claim by 29-Judge Panel

As previously reported, last month 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 members of the Western Apache tribes. The land sits on the third largest deposit of copper ore in the world. The case generated six separate opinions spanning 241 pages which created separate majority alignments on different aspects of the interpretation of the Religious Freedom Restoration Act. Yesterday, plaintiffs filed a petition (full text) seeking review by a panel of all 29 judges on the 9th Circuit. The petition states in part:

If any case warrants full-court review, it is this one—where one en banc panel has overruled another, this Court’s judges are split 6-6, and a fractured decision has contradicted Supreme Court precedent on a question of existential importance to Native Americans. That question is whether the government “substantially burdens” religious exercise when it physically destroys a Native American sacred site, ending religious exercise forever. And the answer is plain: yes.

Becket Fund for Religious Liberty issued a press release announcing the filing.

Supreme Court Limits Scope of Injunction Against Idaho's Gender-Affirming Treatment Ban

In Labrador v. Poe, (Sup. Ct., April 15, 2024), the U.S. Supreme Court, in a case generating three separate opinions, but no opinion for the court, discussed three important issues-- the increasing number of cases on the Court's Emergency Docket (sometimes called its "Shadow Docket"); the increasing number of statewide or nationwide injunctions (sometimes called "Universal Injunctions") issued by federal district courts; and the constitutionality of bans on gender-affirming health care for minors. Last December, an Idaho federal district court issued a preliminary injunction barring the Idaho Attorney General and a county prosecutor from enforcing the state's recently enacted Vulnerable Child Protections Act against anyone. It concluded that the ban likely violated the equal protection clause and plaintiffs' parental rights to make medical decisions for their children. (See prior posting.) One reason given by the district court for issuing a statewide injunction was that plaintiffs, to maintain their privacy, were proceeding using pseudonyms, and it would be difficult to fashion an order applying only to plaintiffs without compromising their anonymity. The 9th Circuit issued a brief order affirming the district court.

In the petition filed with the Supreme Court, the state did not contest the granting of an injunction limited to the plaintiffs' obtaining gender-affirming drug treatments for their children. It only challenged the breadth of the district court's preliminary injunction. The Supreme Court, without issuing an opinion for the majority, stayed the district court's order "except as to the provision to the plaintiffs of the treatments they sought."   Justice Gorsuch, joined by Justices Thomas and Alito, issued a concurring opinion, saying in part:

The district court issued this sweeping relief even though, by its own admission, the plaintiffs had failed to “engage” with other provisions of Idaho’s law that don’t presently affect them—including the law’s provisions prohibiting the surgical removal of children’s genitals.... In choosing such an extraordinary remedy, the district court clearly strayed from equity’s traditional bounds.

Justice Kavanaugh, joined by Justice Barrett, filed a concurring opinion, saying in part:

Traditionally, one important factor when this Court decides an emergency application involving a new law is likelihood of success on the merits.  The likelihood of success on the merits factor can pose difficulty, however, because it can require the Court to assess the merits of important cases earlier and more quickly than is ordinarily preferable, and to do so without the benefit of full merits briefing and oral argument.  But when resolving emergency applications involving significant new laws, this Court often cannot avoid that difficulty. It is not ideal, but it is reality. Given that reality, the Court must then determine the best processes for analyzing likelihood of success on the merits in emergency cases.

Justice Jackson, joined by Justice Sotomayor, filed a dissenting opinion, saying in part:

This case presents numerous reasons for exercising restraint.  As explained in Part I below, the State of Idaho’s emergency application asks us to override the decisions of two lower courts based on an issue not clearly implicated and under circumstances where the State does not contest that its law should remain enjoined as likely unconstitutional, at least as applied to the plaintiffs.  As described in Part II, even if today’s application actually involved a “universal injunction,” the emergency docket would not be the place to address the open and challenging questions that that issue raises.

Justice Kagan dissented, without opinion. Chief Justice Roberts did not indicate how he voted.

SCOTUSblog reports at greater length on the opinions.

Louisiana Supreme Court: Revival of Barred Sex Abuse Claims Violates Priest's Rights Under State Constitution

 In Bienvenu v. Defendant 1, (LA Sup. Ct., March 22, 2024), the Louisiana Supreme Court in a 4-3 decision held that a 2021 Louisiana statute that revived child sex abuse claims that had previously been time barred violates the Louisiana Constitution. The statute gave victims a 3-year window to file claims. The court said in part:

Essentially, plaintiffs alleged they were sexually molested by a Roman Catholic priest at various times between 1971 and 1979.   At the time of the alleged abuse, plaintiffs ranged in ages from eight to fourteen.  

Defendants responded by filing several exceptions, including a peremptory exception of prescription, arguing that plaintiffs’ claims were subject to the general one-year liberative prescriptive period for delictual actions under former La. Civ. Code art. 3536(1)....

The definite nature of accrued prescription has been repeatedly recognized in our jurisprudence, which makes it clear that, unlike statutes of limitations at common law, under civilian principles, prescriptive periods that have accrued act to extinguish the civil obligation to which they apply....

Guided by Louisiana’s civil law tradition, we decline to upend nearly a half of a century’s jurisprudence that recognizes the unique nature of vested rights associated with liberative prescription, which inure to the benefit of both plaintiffs (protecting an accrued cause of action) and defendants (protecting a defense of accrued liberative prescription).  Therefore, despite the sickening  and despicable factual allegations in this case, we must conclude that La. R.S. 9:2800.9, as amended by the revival provisions, cannot be retroactively applied to revive plaintiffs’ prescribed causes of action.  To find otherwise would divest defendants of their vested right to plead prescription in violation of Art. I, Section 2 of the Louisiana Constitution.

However the court remanded the case for the trial court to determine whether the one-year prescriptive period had tolled.

Justice Crichton filed a concurring opinion, as did Justice Griffin.

Chief Justice Weimer dissented, saying in part:

Given Louisiana’s legitimate interest in protecting its citizens who were sexually abused as minors and in providing them with the ability to seek redress in the courts, and the narrowly tailored nature of the relief provided–the legislation revives, for a short period of time, for a narrow category of tort victims, actions otherwise prescribed–I would find that the revival provision is consistent with the due process guarantee.  Under the due process clause, no rights–not even fundamental ones–are absolute.  The due process clause simply offers protection from arbitrary and unreasonable action by the government.  The revival provision at issue is not arbitrary (in fact, in this case it is arguable that the “arbitrary and unreasonable” conduct was the alleged sexual abuse perpetrated upon children by those in society who were placed in positions of authority).  And, the provision has been demonstrated to have a substantial relationship to public safety, morals and welfare.

Justice Crain also filed a dissenting opinion. Justice McCallum dissented without opinion.

Balls and Strikes reported on the decision. [Thanks to Scott Mange for the lead.]

European Court: Failure To Consider Antisemitic Nature of Threats Violated Woman's Rights Under European Convention

In Allouche v. France, (ECHR, April 11, 2024) (full text in French), the European Court of Human Rights in a Chamber Judgment awarded damages of 15,000 Euros plus costs and expenses to a Jewish woman for violation of her right to respect for her private life. As explained by the Court in an English language summary:

Criminal proceedings were conducted following a complaint lodged by the applicant concerning antisemitic insults and threats she had received by email from B....

The applicant’s complaint concerned the fact that the authorities, which had failed to take into account the antisemitic aspect of the offender’s remarks, had failed to provide her with effective protection against antisemitic acts of violence, threats and insults. Some of B.’s statements had been extremely violent, had contained direct threats and had been directed at the applicant as a member of the Jewish community.

The Court reiterated that the national authorities had a duty to implement an appropriate legal framework to protect against discriminatory acts and to take all reasonable steps to determine whether there had been any racist or, more broadly, discriminatory motive for the impugned acts.... Violent incidents with allegedly discriminatory motives, in particular racist motives, should not be treated on an equal footing with offences lacking such motives....

In the light of the above considerations, the domestic authorities had disregarded their positive obligations under Articles 8 and 14 of the Convention, which had consisted in providing the applicant with effective and adequate criminal-law protection against the statements made by the offender. The authorities’ failure to take into account the antisemitic component of the present case had undermined their ability to provide an appropriate response.

[Thanks to Law & Religion UK for the lead.]

Recent Articles of Interest

From SSRN:

• Whittney Barth, Minimal (In)Fidelity: The Ministerial Exception in Religious Higher Education, (Forthcoming: ABA Journal of Labor and Employment Law).
• Andrew Sykes, One Nation Under God, Indivisible, with Liberty and Dignity for All: Justice Anthony Kennedy’s Use of Catholic Social Teaching in His Gay Rights Jurisprudence, (CSLR Research Paper No. #1.2024-ESS (2024)).
• Lama Abu-Odeh, Western Feminism Before and After October 7, (Georgetown University Law Center Research Paper No.___, Forthcoming, (2024)).
• Florence Ashley, Parental Rights Over Transgender Youth—Furthering a Pressing and Substantial Objective?, (Alberta Law Review, Forthcoming).
• Adam MacLeod & Mark David Hall, Foundations of the Right of Charitable Uses, (Mississippi Law Journal, Forthcoming).
• Jessica Clarke, Scrutinizing Sex, (University of Chicago Law Review, Forthcoming).

From SmartCILP:

• Stephanos Bibas, Judge Alito's First Amendment Vigilance on the Third Circuit, 46 Harvard Journal of Law & Public Policy 687-702 (2023).
• Gabrielle Girgis, An Architect of Religious Liberty Doctrines for the Roberts Court, 46 Harvard Journal of Law & Public Policy 825-844 (2023).
• Roy G. Spece, Jr., SCOTUS's Summer of 2022: Obfuscation of and Disdain for Rationality and the Traditional Personal Liberties Framework, 112 Kentucky Law Journal 55-112 (2023-2024).

Vatican Releases Declaration on Human Dignity

 On April 8, the Vatican's Dicastery for the Doctrine of the Faith published a Declaration on Human Dignity, “Dignitas Infinita" (full text).  An introduction to the Declaration by the Prefect of the Dicastery says in part:

The five-year course of the text’s preparation helps us to understand that the document before us reflects the gravity and centrality of the theme of dignity in Christian thought. The text required a considerable process of maturation to arrive at the final version that we have published today.

In its initial three sections, the Declaration recalls fundamental principles and theoretical premises, with the goal of offering important clarifications that can help avoid frequent confusion that surrounds the use of the term “dignity.” The fourth section presents some current and problematic situations in which the immense and inalienable dignity due to every human being is not sufficiently recognized. The Church sees the condemnation of these grave and current violations of human dignity as a necessary measure, for she sustains the deep conviction that we cannot separate faith from the defense of human dignity, evangelization from the promotion of a dignified life, and spirituality from a commitment to the dignity of every human being.

The items described at length in the fourth section as "grave violations of human dignity" are the drama of poverty, war, travail of migrants, human trafficking, sexual abuse, violence against women, abortion, surrogacy, euthanasia and assisted suicide, marginalization of people with disabilities, gender theory, sex change and digital violence. The document's discussion of gender identity has perhaps created the most controversy. The Document says in part:

It needs to be emphasized that ‘biological sex and the socio-cultural role of sex (gender) can be distinguished but not separated.’” Therefore, all attempts to obscure reference to the ineliminable sexual difference between man and woman are to be rejected: “We cannot separate the masculine and the feminine from God’s work of creation, which is prior to all our decisions and experiences, and where biological elements exist which are impossible to ignore.” Only by acknowledging and accepting this difference in reciprocity can each person fully discover themselves, their dignity, and their identity....

It follows that any sex-change intervention, as a rule, risks threatening the unique dignity the person has received from the moment of conception. This is not to exclude the possibility that a person with genital abnormalities that are already evident at birth or that develop later may choose to receive the assistance of healthcare professionals to resolve these abnormalities. However, in this case, such a medical procedure would not constitute a sex change in the sense intended here.

Asked at a Press Gaggle (full text) about President Biden's reaction to the Declaration, the White House Press Secretary said that it was not the President's role "to litigate internal church policy," but that the President has been clear that it is important to have protections for the transgender community and the broader LGBTQ+ community. 

Vox reports at greater length on the Vatican document.

Florida Appellate Court Disqualifies Trial Judge from Hearing Custody Case Involving Transgender Child

 In H.S., v. Department of Children and Families, (FL App., April 3, 2024), a Florida appellate court in a 2-1 decision ordered a trial judge to recuse herself from hearing a case in which a father is challenging the Florida Department of Children and Families' removal of a child from the father's custody. DCF contends that the father, who is a Christian minister and youth pastor, is abusive toward the child because he does not support the child's gender transition. The appeals court concluded that:

Here, the father's fear that he cannot receive a fair and impartial hearing before the trial judge is well-grounded and objectively reasonable....

To an objectively reasonable person, the trial judge's pre-hearing remarks were antagonistic to the father and his right to direct the child's upbringing and moral or religious training. Those remarks when taken together—referring to the child by female pseudonyms, telling the child that "you are one smart, strong[,] [t]ogether, young lady," and to "[c]hin up, sister"—implied a foregone conclusion, before hearing the father's motion, that the trial judge was supportive of the child's gender transition before adulthood and opposed to the father's reliance upon his moral or religious beliefs to otherwise direct the child's upbringing.

Furthermore, the trial judge's in-camera interaction with the child went beyond mere attempts to establish a rapport with the child.,,, [T]he trial judge verbally expressed an inclination—again, before hearing the father's motion—to order the father to submit to "professional help," "counseling," or "guidance" from DCF in an effort to change his moral or religious beliefs.

Judge May dissented, saying in part:

Here, the trial judge's attempt to speak with a child in a manner that put the child at ease does not demonstrate the judge's predisposition of the pending issue. In fact, trial judges often take special care to speak with children to ensure they are comfortable in court proceedings; the decision to do so is within a trial judge's discretion.

Volokh Conspiracy has more on the case.

8th Circuit Hears Oral Arguments on Employee's Religious Discrimination Claim Over Objection To LGBTQ+ Display Online

The U.S. 8th Circuit Court of Appeals on Tuesday heard oral arguments in Snyder v. Arconic Corp. (Audio of full oral arguments.) In the case, an Iowa federal district court in Snyder v. Arconic Corp., (SD IA, Aug. 31, 2023), dismissed a Title VII religious discrimination claim brought by an employee who was fired for placing a post on the company's intranet objecting to a rainbow-colored heart on the company's intranet publicizing a support group for LGBTQ+ employees. The employee's post read:  "Its a (sic.) abomination to God. Rainbow is not meant to be displayed as a sign for sexual gender." He contended that the post was religiously motivated. The district court held that the employee had not shown a conflict between his religious practices and the company's diversity policy. Thomas More Society issued a press release announcing the oral arguments.

Uganda's Constitutional Court Upholds Most of Its Anti-Homosexuality Act

In Odoi v. Attorney General, (Const. Ct. Uganda, April 3, 2023), the Constitutional Court of Uganda in a 203-page opinion upheld most of the Uganda Anti-Homosexuality Act 2023. The Act imposes a life imprisonment sentence for anyone who engages in a homosexual act, and the death penalty for aggravated homosexuality which in general is defined as engaging in a homosexual act with various types of vulnerable persons. However, the court struck down four sections of the Act: §3(2)(c) which defines aggravated homosexuality as including the situation in which the victim contracts a terminal illness as a result of the sexual act; §9 and §11(2)(d) which criminalize knowingly allowing premises to be used or leased out for homosexuality or activities encouraging it, and §14 which imposes a duty to report homosexuality even by individuals who would normally be prevented by privilege from reporting. In a press release, the Court summarized the decision in part as follows:

In coming to its decision, the Constitutional Court considered the following: 

... 2. The absence of consensus at the global level regarding non-discrimination based sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC)....

3. The conflict in international human rights law between upholding a universal understanding of human rights and respecting the diversity and freedom of human cultures.... 

4. The conflict between individuals’ right to self-determination, self-perception and bodily autonomy, on the one hand; and the communal or societal right to social, political and cultural self-determination.... 

5. The recent developments in the human rights jurisprudence including the decision of the US Supreme Court in Dobbs v Jackson Women’s Health Organisation, No. 19-1392, 597 U.S. 215 (2022), where the Court considered the nation’s history and traditions, as well as the dictates of democracy and rule of law, to over-rule the broader right to individual autonomy. 

6. The uniqueness of Uganda’s Constitution which obliges the courts of law to take into account the country’s socio-cultural norms, values and aspirations when resolving any disputes before them.  

7. The Anti-Homosexuality Act being, in general, a reflection of the sociocultural realities of the Ugandan society, and was passed by an overwhelming majority of the democratically elected representatives of the Ugandan citizens.

Louis Farrakhan's Suit Against ADL Dismissed

 In Farrakhan v. Anti-Defamation League, (SD NY, April 5, 2024), a New York federal district court dismissed defamation claims asserted by Louis Farrakhan against the Anti-Defamation League. The court describes Farrakhan's allegations:

The [complaint], which details nearly a century's worth of grievances, alleges several instances of defamation and, as against the ADL, various violations of the plaintiffs' First Amendment rights. At their core, plaintiffs' claims are that by repeatedly referring to plaintiffs as antisemitic, defendants have defamed them and created a chilling effect on their religious practices. Plaintiffs seek $4.8 billion in damages as well as a declaratory judgment that the term "anti-Semite" is defamatory per se and that the ADL is a quasi-governmental actor that violated plaintiffs' First Amendment rights. Plaintiffs also seek to enjoin defendants from calling them antisemitic or taking any steps to urge third parties to disassociate with them.

A number of claims were dismissed on standing grounds, finding that Farrakhan did not allege concrete injuries traceable to ADL. Farrakhan's defamation claims were dismissed because Farrakhan, a public figure, did not plead actual malice. Others were dismissed because they were merely statements of opinion or Farrakhan had not alleged facts showing falsity.

Alabama Supreme Court Affirms Dismissal of Church Property Dispute

 In Sails v. Weeks, (AL Sup. Ct., April 5, 2024), the Alabama Supreme Court by a vote of 8-1, without an opinion for the majority, affirmed the dismissal of a suit challenging the use and disposal of church property. Defendants contended that plaintiffs are not members of the church and thus could not bring suit on its behalf. Justice Mendheim filed a concurring opinion, saying in part: 

[I]t is inaccurate to attribute the genesis of the ecclesiastical-abstention doctrine to the First Amendment. The delicacy with which courts approach church-dispute cases arose more organically from America's history of seeking to disentangle church denominations from state governance...

I believe that our invocation of the ecclesiastical-abstention doctrine should come from a desire to protect religious freedom rather than an unfounded fear that religious ideas might taint our civil jurisprudence....

The Sails plaintiffs argued that the heart of this dispute concerns the alleged mismanagement or misuse of church property. However, I believe that the Sails plaintiffs' property allegations are a proxy for asking the courts to decide who controls the church -- an issue our courts lack the means and expertise to decide....

... "[T]he nature of the underlying dispute" is whether the Sails plaintiffs, who stopped attending the church several years ago, are still members of the spiritual church, who are the ones that ultimately control the incorporated church and the property it holds. In short, there is no way around the fact that, in this case, a decision concerning the use of the church property implicates the spiritual church because church membership is a spiritual concern. 

Justice Sellers filed a dissenting opinion, saying in part:

Defendants ... moved to dismiss the complaint, arguing, in part, that the plaintiffs lacked standing to bring an action on behalf of Union Baptist because, they claimed, Union Baptist was no longer a recognized legal entity under Alabama law because of the official name change that occurred in 2017....

... [C]hanging the name of a corporation, amending an organizational document, or reforming a deed involves the use of our civil legal system that by its very nature is not ecclesiastical.  The issue in this case then is who has the authority to act on behalf of the organization?  And, after identifying that issue, the question then becomes whether secular courts can decide that issue or whether that decision should be left to some ecclesiastical authority?  Because we have no ecclesiastical courts with enforcement authority, I am uncertain how the issue can be decided without court intervention. 

Arizona Supreme Court Says 160-Year-Old Abortion Ban Is Enforceable

In Planned Parenthood Arizona, Inc. v. Mayes, (AZ Sup. Ct., April 9, 2024), the Arizona Supreme Court held that A.R.S. §13-3603 that outlaws all abortions except when necessary to save the mother's life-- originally enacted in 1865-- again became operative when Roe v. Wade was overruled. In a 4-2 decision, the majority concluded that A.R.S. §36-2322, Arizona's 15-week abortion law enacted in 2022, did not prevent the effectiveness of the 1864 law. Senate Bill 1164 which enacted the 15-week law contained the following provision on "Construction" of the law:

This act does not: 1. Create or recognize a right to abortion or alter generally accepted medical standards.  The Legislature does not intend this act to make lawful an abortion that is currently unlawful. 2.  Repeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion.

Today's majority opinion said in part:

We conclude that § 36-2322 does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts § 13-3603, but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed by Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 292 (2022).  Absent the federal constitutional abortion right, and because § 36-2322 does not independently authorize abortion, there is no provision in federal or state law prohibiting § 13-3603’s operation.  Accordingly, § 13-3603 is now enforceable.

The majority added two caveats:

First, § 13-3603 may be enforced prospectively only.  Second, we stay enforcement of § 13-3603 for fourteen calendar days from the filing date of this Opinion to permit the parties, on remand, to determine whether to pursue remaining issues raised in the trial court and, if so, to request further stay relief at the trial court’s discretion. 

Vice Chief Justice Timmer dissented, joined by Chief Justice Brutinel, saying in part:

  ... [R]elying on a statutory construction note tucked within a session law predating Dobbs, the majority interprets § 36-2322(B) as providing that if Roe was overruled, the state would turn back the clock to 1973 by enforcing the near-total abortion ban against physicians, even if they comply with § 36-2322(B) by performing elective abortions before the fifteen-week gestation point or performing abortions when necessary to prevent serious impairment to the pregnant woman’s health.  I strongly disagree.  As the adage goes, the legislature does not ordinarily “hide elephants in mouseholes.”... And the legislature neither did so nor could do so here with a session law note existing wholly apart from statutory text.  

Sections 13-3603 and 36-2322(B) can and should be interpreted harmoniously to permit their joint enforcement until the legislature or the people, through the initiative process, say otherwise.  This means physicians should be permitted to lawfully perform abortions before the fifteen-week gestation point or when necessary to preserve the pregnant woman’s health.

Arizona Republic reports on the decision.

Cert. Filed In Challenge To Michigan's Blaine Amendment

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in Hile v. State of Michigan, (Sup. Ct., cert. filed 4/4/2024). In the case, the U.S. 6th Circuit Court of Appeals held that an amendment placed in the Michigan Constitution in 1970 that prohibits public funds from being used to aid private or religious schools does not violate the equal protection rights of parents who cannot use Michigan Educational Savings Program to send their children to religious schools. (See prior posting.) The Lion reports on the petition for review.

Class Action By Muslim Women Against NYPD Settled for $17.5M

 AP reports that New York City has agreed to settle the class action damage claim in Clark v. City of New York for $17.5 million. The suit brought in a New York federal district court under RLUIPA challenged the NYPD's former policy of requiring Muslim women to remove their hijabs when sitting for arrest photos. (See prior posting.) Under the settlement, which still must obtain judicial approval, the $17.5 million will be shared equally by all class members who file a claim, with each getting a minimum of $7,824.  Previously, settling the claims for an injunction and declaratory judgment, the police department agreed to change its arrest photo policy. (See prior posting).

Texas' Claim Against HHS Over Pharmacy Guidance Dismissed As Moot

In State of Texas v. U.S. Department of Health & Human Services, (WD TX, April 5, 2024), a Texas federal district court dismissed as moot a challenge to an HHS Guidance Document for pharmacies. Initially, HHS issued Guidance reminding retail pharmacies of their non-discrimination obligations. The state of Texas and a pharmacy sued contending that the Guidance required Texas pharmacies to dispense abortion-inducing drugs in violation of Texas law and in violation of religious beliefs of plaintiff pharmacy. HHS denied this and moved for dismissal of the complaint. The court disagreed. The court now describes that decision by saying in part:

So based on the suspicion that Defendants were “smurfing” the administration’s policy goal contrary to the Supreme Court’s holding in Dobbs, the Court shot down Defendants’ motion. [See prior posting.]

Three months after the court refused to dismiss the suit, HHS issued a revised Guidance which explicitly provided that the Guidance does not require pharmacies to fill prescriptions for the purpose of abortions. The court went on:

[D]espite the textual changes, which appear crafted specifically to capitulate to Plaintiffs’ claims, Plaintiffs remain unpersuaded....

Plainly put, Plaintiffs’ concern is that anyone—pregnant or not—can walk into a pharmacy with a prescription for methotrexate, which the pharmacy must fill under every circumstance because the prescription was lawfully prescribed for a non-abortion purpose like rheumatoid arthritis. It’s not an unreasonable concern....

From the Court’s perspective, it’s hard to account for the Revised Guidance’s plain text, Defendants’ reasons for issuing the Revised Guidance, and Defendants’ in-person statements, but then still conclude that Plaintiffs will be forced to dispense drugs for abortion purposes. Indeed, it seems the only way the Court could even “reasonably expect” that Plaintiffs’ alleged injury would occur at this point would be for the Court to disregard all of Defendants’ actions as deceptive litigation posturing.  

To be sure, that argument appeals to the Court’s healthy distrust for the fourth branch of government. But there is no evidence that Defendants have tried to enforce these “obligations” against Mayo or any pharmacy in Texas in the almost two years since the  Pharmacy Guidance was issued. ...

Plaintiffs have received everything they asked for; they should take the win. As a result, the issues are now moot and the Court lacks jurisdiction.

ADF issued a press release reacting to the decision.

2nd Circuit: Plaintiffs Lack Standing to Challenge Zoning Law That Accommodates Jewish Worship Sites

In Citizens United to Protect Our Neighborhoods v. Village of Chestnut Ridge, New York, (2d Cir., April 5, 2024), the U.S. 2nd Circuit Court of Appeals held that neither the organizational nor the individual plaintiffs had standing to bring an Establishment Clause challenge to the Village's 2019 zoning law applicable to places of worship.  According to the court:

... [A]t the urging of the Orthodox Jewish Coalition of Chestnut Ridge ..., the Village began the process of amending its zoning laws so that places of worship could more easily be built in Village neighborhoods, accommodating the need of Orthodox Jewish observers “to pray within walking distance of their homes.”...

In sum, even if it could be argued that the challenged law improperly promotes religion, Plaintiffs point to no cognizable harm that is actual or imminent.  They claim that the Village spent tax money in passing the law yet fail to allege how those funds were anything more than a routine use of the Village’s planning budget....  They claim that they will be directly exposed to newly authorized religious structures without asserting that they have even seen one of those structures or when and where they might ever do so in the future.  And while they contend that the law denies them the same opportunity as religious groups to host large gatherings, they do not assert that they have any particular interest in holding such events....  Ultimately, even if Plaintiffs have a sincere objection to the challenged law, our Article III standing doctrine requires them to first establish a real stake in their challenge before bringing it in federal court.

Recent Articles of Interest

From SSRN:

• Michael P. Foran, Discrimination and Manifestation of Belief: Higgs v Farmor's School [2023] EAT 89, (Industrial Law Journal, Forthcoming).
• Jack M. Balkin, Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity, (Boston University Law Review, Forthcoming).
• Jaan Islam, Islamic History (tārīkh) and Civilization in the Tas-heel Curriculum, (March 5, 2024).

From SmartCILP:

• Thomas D. Howes, Religion as a Basic Human Good, [Abstract], 66 American Journal of Jurisprudence 239-268 (2021).
• Marc O. DeGirolami, Book Review. The End of the Affair. Post-Liberal Religious Liberty: Forming Communities of Charity, by Joel Harrison, [Abstract], 66 American Journal of Jurisprudence. 409-414 (2021).
• Ryan Houser & Andres Constantin, COVID-19, Religious Freedom and the Law: The United States' Case, 49 American Journal of Law & Medicine 24-40 (2023).

Religiously Motivated Aid for Drug Abusers Not Protected by RFRA or 1st Amendment

In United States v. Safehouse, (ED PA, April 3, 2024), a Pennsylvania federal district court held that neither the Religious Freedom Restoration Act nor the Free Exercise Clause of the 1st Amendment is violated by prosecuting Safehouse for violating 21 USC §856 (Maintaining Drug-Involved Premises). Safehouse is a nonprofit corporation that plans to open a safe injection site for those struggling with opioid abuse. Its founders were religiously motivated, but the corporation's articles do not set out any religious purpose. The court said in part:

Here, the organizers and leaders of Safehouse profess religious motivation, but the work of Safehouse itself is in no respect religious....

As an entity unaffiliated with any specific faith or religious institution, Safehouse claims protection for its non-religious actions, based solely upon the religious motivation of its founders.  Neither RFRA nor the free exercise clause extends that far, as religion cannot provide a “limitless excuse for avoiding all unwanted obligations.” ...  That is necessarily so, because “‘the very concept of ordered liberty precludes allowing’ [a plaintiff], or any other person, a blanket privilege ‘to make his own standards on matters of conduct in which society as a whole has important interests.’”...  The noble intentions of Safehouse and its founders are self-evident, and the public health crisis they seek to address continues unabated, but their religious inspiration does not provide a shield against prosecution for violation of a federal criminal statute barring its operation.

WHYY News reports on the decision.

Indiana Appeals Court: Plaintiffs' Religious Rights Are Violated by State's Abortion Restrictions

In Individual Members of the Medical Licensing Board of Indiana v. Anonymous Plaintiff 1, (IN App., April 4, 2024), an Indiana state appellate court held that plaintiffs are entitled to a preliminary injunction in their suit claiming that the state's Religious Freedom Restoration Act is violated when they are prohibited by Indiana's abortion law from obtaining an abortion that their religious beliefs direct them to obtain. However, the court found that the injunction entered by the trial court was broader than just protecting plaintiffs' religious rights and sent the case back for the trial court to tailor its injunction more narrowly. The court said in part:

The State has provided little authority—and none that we find persuasive—to support the more restrictive view that religious exercise does not encompass the pregnancy terminations at issue here.... If a corporation can engage in a religious exercise by refusing to provide abortifacients—contraceptives that essentially abort a pregnancy after fertilization—it stands to reason that a pregnant person can engage in a religious exercise by pursuing an abortion....

... [W]e need look no further than the language of the Abortion Law to determine that the General Assembly does not view the State’s compelling interest as beginning at fertilization. The Abortion Law exempts in vitro fertilization procedures from its scope, although there is the potential for life that might be destroyed in the process of this procedure.... That broad exemption suggests any compelling interest by the State is absent at fertilization. Beyond that, the Abortion Law expressly permits abortions at all stages of gestation provided certain express requirements are met.... The Abortion Law allows a conditional right to abortions “to prevent any serious health risk to the pregnant woman or to save the pregnant woman’s life.” ... This amounts to an exception to the Abortion Law’s prohibitions based on a prioritization of the pregnant woman’s health over the survival of the zygote, embryo, or fetus. But that is the same sort of prioritization reflected in the Plaintiffs’ religious beliefs, albeit on a different scale....

Thus, the broader religious exemption that Plaintiffs effectively seek has the same foundation as the narrower exceptions already existing in the Abortion Law: all are based on the interests of the mother outweighing the interests of the zygote, embryo, or fetus. The religious exemption that Plaintiffs seek, based on their sincere religious beliefs, merely expands the circumstances in which the pregnant woman’s health dictates an abortion....

The State asserts the injunction is so broad that it enjoins future government action that may not violate RFRA.... Plaintiffs’ response is that the preliminary injunction should be interpreted more narrowly because Plaintiffs never sought such broad relief.

Judge May concurred without a separate opinion and Judge Bailey filed a concurring opinion. Indiana Capital Chronicle reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Australian State Enacts Elaborate Conversion Therapy Ban

In the Australian state of New South Wales, with assent by the Governor on April 3, the Conversion Practices Ban Bill 2024 became law, effective in April 2025. The new law bans treatments or efforts to change or suppress a person's sexual orientation or gender identity where the treatment or efforts cause substantial mental or physical harm or endanger an individual's life. Violations may be punished with up to 5 years in prison. The law however includes a number of specific examples of both gender-affirming treatment and religious expression that are not prohibited. It provides in part:

A conversion practice does not include— (a) a health service or treatment provided by a registered health practitioner that— (i)  the registered health practitioner has assessed as clinically appropriate ... and (ii) complies with all relevant legal, professional and ethical requirements,

Examples ... [are]  • genuinely assisting an individual who is exploring the individual’s sexual orientation or gender identity or considering or undergoing a gender transition • genuinely assisting an individual who is receiving care and treatment related to the individual’s gender identity • genuinely advising an individual about the potential impacts of gender affirming medical treatment.

(b) genuinely facilitating an individual’s coping skills, development or identity exploration to meet the individual’s needs, including by providing acceptance, support or understanding to the individual, or

(c) the following expressions if the expression is not part of a practice, treatment or sustained effort, directed to changing or suppressing an individual’s sexual orientation or gender identity— (i) an expression, including in prayer, of a belief or principle, including a religious belief or principle, (ii) an expression that a belief or principle ought to be followed or applied.

(4) To avoid doubt, the following are examples of what does not constitute a conversion practice under this section— (a) stating what relevant religious teachings are or what a religion says about a specific topic, (b)  general requirements in relation to religious orders or membership or leadership of a religious community, (c) general rules in educational institutions, (d)  parents discussing matters relating to sexual orientation, gender identity, sexual activity or religion with their children.

The law also sets out an elaborate civil complaint structure. Unlike most statutes passed by U.S. jurisdictions, the Australian law appears to apply to adults as well as to minors. Law & Religion Australia reports on the new law.

Texas Man Sentenced To 37 Years in Muslim Hate Crime Murder

A Department of Justice press release reports that yesterday a Texas federal district court sentenced a defendant to 37 years in prison (with credit for time served before sentencing) for a mass shooting at a Dallas car repair business. Thirty-nine year old Anthony Paz Torres had pleaded guilty to five federal hate crime counts. DOJ explains:

 According to court documents, Torres admitted that a few days prior to the shooting, he went to Omar’s Wheels and Tires, made anti-Muslim comments, and pledged that he would come back. When he returned to the business on Dec. 24, 2015, Torres asked customers if they were Muslim. After being escorted back to his vehicle by Omar’s Wheels and Tires employees, Torres discharged his firearm in the direction of multiple employees and customers. Torres admitted that he killed one person and attempted to kill four other people at Omar’s Wheels and Tires because he believed that they were Muslim. 

Uganda Constitutional Court Upholds Most of Anti-Homosexuality Act; Mandatory Reporting of Homosexuality Invalidated

In Odoi-Oywelowo v. Attorney General, (Const. Ct. Uganda, April 3, 2024), Uganda's Constitutional Court in a unanimous 203-page opinion upheld the constitutionality of most of the country's Anti-Homosexuality Act, 2023. The Act bans homosexuality and the promotion of homosexuality and contains various enforcement provisions. Plaintiffs contended that the law violated a number of provisions of the Ugandan Constitution, including protections of human dignity, equality, privacy and expression. While upholding most of the law, the court struck down provisions that punish unintentional transmission of HIV and provisions prohibiting leasing or allowing of premises to be used for homosexuality. It also found that Section 14 of the Act that imposed a duty to report homosexuality and gave immunity to a person who reports it in violation of a privilege violates the constitutional rights to health, privacy and freedom of religion. That provision would have presumably required clergy who learn of homosexuality in privileged conversations to report it. Reuters reports on the decision.

Iowa Enacts Religious Freedom Restoration Act

Yesterday Iowa Governor Kim Reynolds signed SF 2095, the Religious Freedom Restoration Act. (Governor's press release.) (Full text of Act.) It provides in part:

State action shall not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless the government demonstrates that applying the burden to that person's exercise of religion is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

The Gazette reports on the bill.

Inmates Sue Claiming Religious Need to Watch Solar Eclipse

Suit was filed last week in a New York federal district court by six inmates at the Woodbourne Correctional Facility in Sullivan County, New York seeking to enjoin a 3-hour statewide prison lock down scheduled for April 8 that will prevent inmates from viewing the solar eclipse.  Plaintiffs are Christian, Muslim, Santerian and Atheist. The complaint (full text) in Zielinski v. New York Department of Corrections and Community Supervision, (ND NY, filed 3/29/2024), alleges that plaintiffs "have each expressed a sincerely held religious belief that April’s solar eclipse is a religious event that they must witness and reflect on to observe their faiths." The complaint sets out the nature of each plaintiff's religious belief. It alleges that the lock down violates plaintiffs' rights under RLUIPA, the Free Exercise and the Equal Protection Clauses. CBS News reports on the lawsuit.

UPDATE: AP, April 5, reports:

Thomas Mailey, a spokesperson for the corrections department, said the department has agreed to permit the six individuals to view the eclipse, while plaintiffs have agreed to drop their suit with prejudice.

Fraud and Negligence Claims Move Ahead Against Church Over Mistreatment of Members

In Ramirez v. World Mission Society, Church of God, (D NJ, April 1, 2024), plaintiff brought suit in a New Jersey federal district court against various defendants, including a church and its Pastor, for fraud, intentional infliction of emotional distress and negligence. Plaintiff claims that she was pressured into joining defendant Church, in part through concealment of the identity of the Church's leader. She was further coerced into donating 10% of her income to the church based on misrepresentations that the donations would be used for charitable purposes rather than salaries. The Church indoctrinated its members so that they would work long hours at low pay. It alienated plaintiff from her family and friends, and told members they could not have children which led plaintiff to get an abortion and subsequently attempt suicide. The court dismissed many of the claims because elements were not adequately pleaded. Only a claim against the Church and its Pastor for intentional fraud based on false representations and a claim for negligence against the Church survived defendants' motion to dismiss.

Satanic Temple Can Move Ahead with Establishment Clause Challenge to Its Treatment by City Council

In The Satanic Temple v. The City of Chicago, (ND IL, March 31, 2024), an Illinois federal district court held that The Satanic Temple ("TST") had alleged enough to move ahead on its claim that the city had violated the Establishment Clause by constantly delaying for over three years a request by a TST clergyman to deliver an invocation at a Chicago City Council meeting.  The court said in part:

The Establishment Clause requires that the City treat Vavrick the same as it would any other clergy member from any other religion. Assuming, therefore, that the City has not scheduled Vavrick to give an invocation because of his religious beliefs, such practice violates the Establishment Clause.

The court however dismissed plaintiffs' free speech claim finding that plaintiffs had not plausibly alleged that City Council invocations are anything other than government speech. It also refused to grant a preliminary injunction.

Suit For Misappropriating Church Funds Not Precluded by Church Autonomy Doctrine

In Buck v. Peace Apostolic Church, Inc., (CA Super. Ct., March 8, 2024), a California trial court rejected the contention that the church autonomy or ecclesiastical abstention doctrine precludes the court from adjudicating a claim that two church officers and directors improperly spent church funds.  The court said in part:

The First Amendment does not immunize the Church or the individual defendants from illegal acts that apply equally to everyone, religious or not. The Plaintiffs alleged and proved that Defendants committed fraud and engaged in false advertising. Defendants solicited donations from the public promising that “no part of the income or assets of this corporation shall ever inure to the benefit of any director, officer, or member thereof or to the benefit of any private person.”... Prince used her position in the church and the representations made by her and by the church to enrich herself. While Brown did not enrich herself, she facilitated the enrichment of her son, Howard Woods. The defendants cannot take money based on a representation that it would be used for charitable purposes and church mission and use it for personal benefit. That's not internal church governance. That's fraud. The activities that occurred in that case are not protected by the First Amendment.... 

On December 19, 2023, the Court ordered injunctive relief. In part, PAC was ordered to post warnings that read “WARNING: A Jury has found that Tamara Swancy-Prince, Priscilla Woods Brown and Peace Apostolic Church have improperly misappropriated donations.” PAC objects to the injunction arguing that the Court misapplied the law.... The Court is simply not convinced that similar abuses won’t recur.

Florida Supreme Court Clears Abortion Rights Proposal for November Ballot

 In Advisory Opinion to the Attorney General re: Limiting Government Interference with Abortion, (FL Sup. Ct., April 1, 2024), the Florida Supreme Court, in a 4-3 decision, rejected challenges to placing a proposed abortion rights constitutional amendment on the November ballot. The proposed amendment provides:

Limiting government interference with abortion.—Except as provided in Article X, Section 22, no law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.

The court said in part:

We decline to adopt a standard that would effectively vest us with the power to bar an amendment from the ballot because of a supposed ambiguity in the text of the amendment.  We decline to encroach on the prerogative to amend their constitution that the people have reserved to themselves.

Chief Justice Muniz filed a concurring opinion, joined by Justices Canaday and Couriel concur, saying in part:

... [Q]uestions of justice are appropriately at the heart of the voters’ assessment of a proposed amendment like the one under review.  With its reference to the existence of “inalienable rights” in all persons, our constitution’s Declaration of Rights assumes a pre-constitutional, objective moral reality that demands our respect—indeed, a moral order that government exists to protect.  The proposed amendment would constitutionalize restrictions on the people’s authority to use law to protect an entire class of human beings from private harm.  It would cast into doubt the people’s authority even to enact protections that are prudent, compassionate, and mindful of the complexities involved.  Under our system of government, it is up to the voters—not this Court—to decide whether such a rule is consistent with the deepest commitments of our political community.

Justice Grosshans filed a dissenting opinion in which Justic Sasso concurs. Justice Francis filed a dissenting opinion. Justice Sasso filed a dissenting opinion in which Justices Grosshans and Francis concur, saying in part:

I agree with the majority that, at a very high level, the voters will understand that this amendment creates a broad right to abortion in Florida.  However, our precedent has consistently required that the summary explain more than the amendment’s general aim.  Indeed, we have said that ballot summaries must explain the “material legal effect,” so that the electorate is advised of the “true meaning, and ramifications, of an amendment” and is thereby “adequately informed.” 

The summary here does none of this.

In a separate decision yesterday, the Florida Supreme Court held that the state Constitution's Privacy Clause does not protect abortion rights. (See prior posting.) Orlando Sentinel reports on the two decisions.

Florida Supreme Court Overrules Cases Holding State Constitution Protects Abortion

In Planned Parenthood of Southwest and Central Florida v. State of Florida, (FL Sup. Ct., April 1, 2024), the Florida Supreme Court in a 6-1 decision receded from (i.e. overruled) its prior decisions that held the Privacy Clause of the Florida Constitution protects the right to abortion. Focusing on the original public meaning of the Privacy Clause that was adopted by Florida voters in 1980, the Court said in part:

The Privacy Clause of the Florida Constitution does not mention abortion or include a word or phrase that clearly incorporates it.  Era-appropriate dictionary definitions and contextual clues suggest that abortion does not naturally fit within the rights at issue.  Reliable historical sources, like the technical meaning of the terms contained in the provision, the origin of the amendment, and the framing of the public debate, similarly do not support a conclusion that abortion should be read into the provision’s text.  Roe is also relevant to our analysis of the public meaning of the Privacy Clause.  But speculation as to Roe’s effect on voter understanding does not overcome the combined force of the substantial evidence we have examined above.  Thus, we cannot conclude that in 1980 a voter would have assumed the text encompassed a polarizing definition of privacy that included broad protections for abortion.

The Court thus rejected Planned Parenthood's suit seeking a temporary injunction against enforcement of Florida's 15-week abortion ban. As the dissent points out, however, the decision also has the effect of triggering in 30 days the effectiveness of the state's 6-week Heartbeat Protection Act. That Act, by its terms, was to take effect if the state Supreme Court held that the state Constitution's right to privacy does not protect abortion, if it allowed the 15-week ban to remain in effect or if the Court receded from any of its prior cases protecting abortion.

Justice Sasso filed a concurring opinion focusing on the issue of standing. Justice Labarga filed a dissenting opinion, saying in part:

The majority concludes that the public understanding of the right of privacy did not encompass the right to an abortion. However, the dominance of Roe in the public discourse makes it inconceivable that in 1980, Florida voters did not associate abortion with the right of privacy.

In a second case decided yesterday, the Florida Supreme Court cleared a proposed constitutional amendment protecting pre-viability abortion rights for placement on the November ballot. (See posting on decision.)  Orlando Sentinel reports on the two decisions.

Recent Articles of Interest

From SSRN:

• Laura Portuondo, Gendered Liberty, (Georgetown Law Journal, Forthcoming).
• Robert W. McGee, Human Rights and Religious Intolerance of Mixed Marriages: A Case Study of Indonesia, (February 26, 2024).
• Marc O. De Girolami, The Death and New Life of Law and Religion, (Oxford Journal of Law and Religion (forthcoming)).
• Stephanie H. Barclay, Constitutional Rights as Protected Reasons, (University of Chicago Law Review, Forthcoming).
• Zalman Rothschild, The Impossibility of Religious Equality, (Columbia Law Review (2024-2025), Forthcoming).
• Gabrielle Girgis, A Strict Scrutiny Regime for Free Exercise Post-Smith, (February 29, 2024). 
• Kimberly L. Wehle, The Ninth Amendment Post-Dobbs: Could Federalism Swallow Unenumerated Rights?, (Maryland Law Review, Vol. 83, No. 3, 2024).
• Martin Katz, Bostock and the Limits of Textualism: A Structuralist Approach, (U Denver Legal Studies Research Paper No. 24-06 (2024)).
• Rebecca E. Zietlow, Constitutional Allies: Abortion Rights, Fugitives from Slavery and the Networks that Support Them, (February 27, 2024).
• Nick Robinson, The Regulation of Foreign Funding of Nonprofits in a Democracy, (Virginia Journal of International Law, Forthcoming).

From SmartCILP:

• Michael J. Broyde & Alexa J. Windsor, Contract Law Should Be Faith Neutral: Reverse Entanglement Would Be Stranglement for Religious Arbitration, 79 N.Y.U. Annual Survey of American Law 17-88 (2023).

Appeals Court Upholds Preliminary Injunctions Against Texas Treating Gender-Affirming Care as Child Abuse

In Abbott v. Doe, (TX App., March 29, 2024), a Texas state appellate court upheld a trial court's preliminary injunction against the state's Department of Family and Protective Services and its Commissioner. The preliminary injunction barred these defendants from taking investigative or enforcement action based on the state Attorney General's Opinion, the Governor's letter and Statement by the Department implementing it that deemed many of the procedures used to treat gender dysphoria to be child abuse. (See prior posting.) The court, concluding that the trial court had not abused its discretion in entering the injunction, said in part:

The injuries Appellees allege, and that the injunction redresses, are that the application or threatened application of the allegedly invalid rule announced in the Department Statement interferes with or impairs the Doe Parents’ right to make imminent decisions about their child’s medical care, Mary’s guarantee of equal rights and equality under law, and Appellees’ rights to due process because the rule is unconstitutionally vague.  See Tex. Const. art. I, §§ 3, 3a, 19....

The temporary injunction specifically precludes the Department from taking action against Appellees based on the rule announced in the Department Statement, which references the Governor’s Directive and the Attorney General’s opinion....  The temporary injunction remedies Appellees’ injuries because it temporarily reinstates Department policies and procedures for screening reports and conducting investigations as they existed prior to February 22, 2022....  At that time, the Department would have applied the same policies and standards to a report concerning gender-affirming medical care as to any other case of suspected child abuse....  Before February 22, 2022, the Department had no rule that categorically deemed the provision of gender-affirming medical care presumptively abusive or required investigation and a disposition for every report of gender-affirming medical care without regard to medical necessity....

In Muth v. Voe, (TX App, March 29, 2024), a second case upholding two temporary injunctions issued by a different state trial court, the appellate court said in part:

We hold that at a minimum the Families have established a probable right to relief on their claim that the Department Statement is an invalid rule because it is a rule within the meaning of the APA and it was adopted without following proper rulemaking procedures.  This claim is sufficient to support the trial court’s temporary injunctions.

Reuters reports on the decision.

President Biden Sends Easter Greetings

The White House today posted a Statement from President Biden (full text) sending Easter greetings to the world's Christians.  The Statement reads:

Jill and I send our warmest wishes to Christians around the world celebrating Easter Sunday. Easter reminds us of the power of hope and the promise of Christ’s Resurrection.

As we gather with loved ones, we remember Jesus’ sacrifice. We pray for one another and cherish the blessing of the dawn of new possibilities. And with wars and conflict taking a toll on innocent lives around the world, we renew our commitment to work for peace, security, and dignity for all people.

From our family to yours, happy Easter and may God bless you.

White House Statements Trigger Partisan Religious Controversy

The confluence this year of the dates for Easter and for the international Transgender Day of Visibility has resulted in an unusual religious controversy.  President Biden issued a Proclamation (full text) designating today as Transgender Day of Visibility, saying in part:

Transgender Americans are part of the fabric of our Nation.  Whether serving their communities or in the military, raising families or running businesses, they help America thrive.  They deserve, and are entitled to, the same rights and freedoms as every other American, including the most fundamental freedom to be their true selves.  But extremists are proposing hundreds of hateful laws that target and terrify transgender kids and their families — silencing teachers; banning books; and even threatening parents, doctors, and nurses with prison for helping parents get care for their children.  These bills attack our most basic American values,,,,

As reported by NBC News, this, along with the terms of a White House Easter Egg design contest for youths from National Guard families has sparked criticism from numerous Republican politicians. The flyer (full text) calling for youths to submit their Easter Egg designs includes in the lengthy instructions the following:

The Submission must not contain material that promotes bigotry, racism, hatred or harm against any group or individual or promotes discrimination based on race, gender, religion, nationality, disability, sexual orientation or age....

The Submission must not include any questionable content, religious symbols, overtly religious themes, or partisan political statements....

A statement yesterday (full text) from the Trump campaign called Biden's Proclamation "blasphemous" and said in part:

Sadly, these are just two more examples of the Biden Administration’s years-long assault on the Christian faith. We call on Joe Biden’s failing campaign and White House to issue an apology to the millions of Catholics and Christians across America who believe tomorrow is for one celebration only — the resurrection of Jesus Christ.

Husband's Defamation Action Against Organization Assisting His Wife in Obtaining a Get Is Dismissed

 In Satz v. Organization for the Resolution of Agunot, Inc., (SD NY, March 28, 2024), a New York federal district court dismissed a husband's suit alleging defamation and several other torts brought against an organization that assists Jewish women who have obtained divorces in civil courts but whose husbands refuse to provide them with a Jewish bill of divorce ("Get").  According to the court:

ORA posted on its website a graphic bearing Plaintiff’s picture, labeling him a “GET-REFUSER,” and asserting that “GET REFUSAL IS DOMESTIC ABUSE”.... ORA also posted a copy of a “Psak Din,” a ruling by a rabbinical court, which states that Plaintiff’s “recalcitran[ce]” justifies doing “anything that is not a criminal offense . . . to cause him to comply” with rabbinical court proceedings....

Expressions of opinion are not actionable....  Taken in context, ORA’s statement on the flyer posted on its website that “GET-REFUSAL IS DOMESTIC ABUSE” is not a statement of fact....  In this context, the statement that Get-refusal is domestic abuse clearly is an expression of opinion by an advocacy organization....

Finally, Plaintiff takes issue with the flyer’s statement that “Jewish law forbids” various forms of association with Plaintiff....  [A]djudicating the truth or falsity of ORA’s statement about what “Jewish law forbids,” would impermissibly entangle the Court in an “inquiry . . . into religious law.”...

New York courts also apply a qualified privilege to statements “fairly made by a person in the discharge of some public or private duty, legal or moral.” ... [T]here is a colorable argument that rabbis presiding over Get proceedings are engaged in the discharge of a moral duty and, therefore, the statements in the Psak Din, which ORA republished, are privileged.....

For this Court to adjudicate whether ORA defamed Plaintiff by republishing the Psak Din, the Court would have to determine the truth of the challenged statements in the Psak Din, which would impermissibly entangle the Court in questions of Jewish law.

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.