Local Congregation Cannot Sue Parent in Property Dispute After All Its Members Were Excommunicated

Church of God of Crandon v. Church of God, (WI App., Oct. 15, 2024), involved a dispute between a local congregation-- the Crandon Church-- and its parent body, Church of God (COG). The Crandon Church opposed the parent body's decision that the local church would be merged with a congregation in a different location and the Crandon Church property would be sold. Crandon members filed suit against the parent body seeking a declaration confirming its interest in local church building and its bank accounts. In response, the COG Bishop issued a Declaration excommunicating Crandon Church members and then moved to dismiss the lawsuit against COG on the ground that Crandon no longer had any members so that it effectively has ceased to exist and has no interest in Crandon property. The appellate court agreed, saying in part:

... [T]he 1994 warranty deed states that all property—both real and personal—becomes the property of the COG should a “local congregation” “cease to … exist.”  The Crandon Church cannot file a lawsuit to obtain an interest in property that it does not own.  Because we conclude that the First Amendment prohibits our review of the Declaration, the Crandon Church lacks standing to bring the current lawsuit seeking interests in the property and the CoVantage accounts....

... [A] civil court cannot, under the First Amendment, review:  whether the 2018 Minutes [giving the Bishop the authority to excommunicate unruly or uncooperative members] complied with due process or the Bible; what the COG meant by “unruly or uncooperative”; or whether Cushman properly determined that the excommunicated members were “unruly or uncooperative.”  Similarly, the First Amendment prohibits a civil court from examining the International Executive Committee’s review of those issues.  To hold otherwise “would undermine the general rule that religious controversies are not the proper subject of civil court inquiry.” ... Under the facts of this case, we must defer to the resolution of any ecclesiastical issues by the International Executive Committee, which denied the excommunicated members’ appeal.

Federal Court Refuses to Enjoin Distribution of Notice from Rabbinical Court

In Esses v. Rosen, (ED NY, Oct. 15, 2024), a New York federal district court refused to issue a preliminary injunction barring defendants from disseminating in plaintiff's neighborhood a rabbinical court's notice (a sieruv) that plaintiff has failed to respond to a summons from the rabbinical court. Plaintiff also asked that the seiruv be taken down or removed from places where it had been posted. Plaintiff alleged claims for defamation and intentional infliction of emotional distress.  The court said in part:

While plaintiff does not dispute that she brought the claims in this case before a secular court rather than a religious one, she suggests that the seiruv is defamatory because it indicates that her doing so was “improper[].”  That statement is nowhere contained in the seiruv itself.  But even if the seiruv is read to convey that implication through its reference to plaintiff’s civil filing, the First Amendment would prevent this Court from second-guessing a religious court’s view of impropriety. ... 

Plaintiff next claims that the instructional document distributed with the seiruv is defamatory because it falsely conveys “that the rabbis of the beth din were encouraging social ostracism and shaming in this case.” ... In any event, the Establishment Clause would preclude this Court from finding defamation on that ground.  To decide whether the instructional document was true or false in its asserted characterization of plaintiff’s seiruv, the Court would be “called upon to inquire into the rules and customs governing rabbinical courts as they are utilized in the Orthodox Jewish religion,”

[Thanks to Volokh Conspiracy for the lead.]

Court Says Indian Penal Code Does Not Punish Insults to Religion That Do Not Outrage Targets

In Kumar v. State of Karnataka, (High Ct. Karnataka, Sept. 13, 2024), a single-judge bench of the High Court of the Indian state of Karnataka gave a narrow interpretation to Section 295A of the Indian Penal Code which prohibits the deliberate and malicious outraging of the religious feelings of any class of citizens. At issue are the acts of two individuals who barged into a mosque and shouted "Jai Sriram" (Glory to Lord Rama). While the perpetrators have not yet been identified by investigators, this suit was filed to quash the ongoing investigation of the incident. Agreeing to quash the investigation, the court said in part:

Section 295A deals with deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.  It is ununderstandable as to how if someone shouts ‘Jai Sriram’ it would outrage the religious feeling of any class. When the complainant himself states that Hindu – Muslims are living in harmony in the area the incident by no stretch of imagination can result in antimony....

The acts that have no effect on bringing out peace or destruction of public order will not lead to an offence under Section 295A of the IPC.

Law Beat reports on the decision.

6th Circuit Finds That Employee's Objections to Covid Testing Were Not Religious

 In DeVore v. University of Kentucky Board of Trustees, (6th Cir., Oct. 11, 2024), the U.S. 6th Circuit Court of Appeals affirmed the dismissal of a lawsuit by a former department manager at the University of Kentucky who was denied a religious accommodation that would exempt her from the University's policy that required weekly testing of employees who were not vaccinated against Covid. Plaintiff filed a suit claiming religious discrimination in violation of Title VII. She alleged in part that the University's policy was designed to coerce her to get tested. the court said:

Such coercion, she explained, was “wrong” because “[t]rying to manipulate somebody into doing something to attain a result that you want by holding something over them” is “not right behavior.”...

DeVore drew no connection between her fairness conclusion and any “religious principle” she follows, leaving it simply to reflect her “personal moral code.”... DeVore’s “subjective evaluation” of the Policy against this rubric of “secular values” does not establish a religious conflict with the Policy.

Religious College Sues Georgia Seeking Inclusion in State Grant and Scholarship Programs

Yesterday suit was filed in a Georgia federal district court challenging the constitutionality of excluding Luther Rice College and Seminary from state scholarship and grant programs for students attending private colleges. Georgia law excludes schools or colleges of theology or divinity. The complaint (full text) in Luther Rice College and Seminary v. Riley, (ND GA, filed 10/15/2024), alleges in part:

9. Georgia allows other religious schools—including schools with religious missions that offer religious undergraduate degree programs like Luther Rice—to participate in Georgia student aid programs....

11. If Luther Rice did not have a religious mission, offer religious degree programs, and teach all courses from a Christian worldview, its undergraduate students could receive Georgia student aid.

12. So Luther Rice faces a choice between (a) maintaining its religious mission and degree programs and teaching all courses from a Christian worldview, or (b) giving up that religious character and exercise to participate equally with other schools in the State.

13. Putting the school to that choice is unconstitutional....

Plaintiffs allege that the exclusion violates the free exercise and Establishment Clauses, the equal protection clause and plaintiff's free expression rights. ADF issued a press release announcing the filing of the lawsuit.

Certiorari Denied in Dispute Over Standing to Challenge Covid Restrictions on Churches

The U.S. Supreme Court today denied review in Grace Bible Fellowship v. Polis, (Docket No. 24-226, certiorari denied 10/15/2024). (Order List). (Certiorari petition). In the case, the U.S. 10th Circuit Court of Appeals (10th Circuit opinion) held that plaintiffs lacked standing to obtain prospective declaratory relief in their challenge to Colorado's authority to impose public health restrictions on houses of worship.

Air Force Officers' Suit Over Vaccine Mandate Is Now Moot

Still working their way through the courts are dozens of cases brought by employees or former employees who were denied religious exemptions from Covid vaccine mandates. One of the more interesting is Air Force Officer v. Austin, (MD GA, Oct. 11, 2024), a class action suit on behalf of Air Force officers who were denied religious exemptions from the military's Covid vaccine mandate. The mandate has been rescinded by the military after Congress ordered it to do so. At issue in the case is whether the lawsuit is now moot. Plaintiffs made two basic arguments against mootness. One is that the government has not shown that the mandate will not be reimposed at some later time. The second is that plaintiffs are seeking an injunction that applies to exemptions from all military vaccine mandates, not just Covid vaccine requirements.  The court rejected both claims. The court said in part:

Understandably so, Plaintiffs and Defendants just disagree whether there is no reasonable expectation that “the same kind of COVID-19 vaccination requirement will be reinstated,” but it can’t be overlooked that “for almost two years now” there hasn’t been any indication that the COVID-19 vaccination mandates will be reinstated. In this Court’s opinion, that’s quite persuasive....

Recent Articles of Interest

From SSRN:

• Paul E. McGreal, Resolving the Ministerial Exception's Economic Paradox, (September 03, 2024).
• Andrew Paul Gwaza & Joseph Ochogwu, Building Inclusive Religious Education in Nigeria, (February 21, 2024).
• Sayed Qudrat Hashimy, Justice for Victims of Atrocity Crimes: The ICC’s Pursuit in the Prosecution of War Crimes in Afghanistan, (Eastern Africa Journal on International Humanitarian Law, Vol. 3 Issue 1 (2024), pp. 49-111).
• Chanchal Kumar Singh & Mritunjay Kumar, The Uniform Civil Code Debate in India: Conceptual Predicaments, Historical Legitimacy, and Challenges to Pluralism V Sml. L. Rev. 12 (2022).
• Rosalind Simson, Transgender Students, Fairness, and the Protection of Female School Sports, (Kansas Journal of Law and Public Policy, Spring 2025 (forthcoming)).
• Sherif Girgis, Originalism's Age of Ironies (September 23, 2024).

Biden Addresses Call to Jewish Leaders Ahead of Yom Kippur

The Jewish holiday of Yom Kippur begins at sundown this evening.  Last Wednesday, President Biden spoke for over ten minutes (full text of remarks) during a White House Call with Jewish Faith Leaders for High Holidays. The President said in part:

In the last three years, it’s been the honor to do this High Holiday with all of you from the White House in a season of joy and a season of pain....

... I know this year’s call is very different, and it’s a ... difficult time for the Jewish community and for Jews around the world.  In the midst of the High Holidays, two days ago, we commemorated the first anniversary of October 7th, the deadliest day for Jewish people since the Holocaust....

I also want you to know that I see you, I hear you, I see your pain from the ferocious surge of antisemitism in America and, quite frankly, around the world — absolutely despicable.  And I hope ... we learned a lesson from our parents’ generation.  We have to stand up.  We have to call it out.  It has to be stopped....

My administration is calling on the social media companies to adopt a zero-tolerance policy toward antisemitism and other hateful content, including the vile antisemitic attacks online that we’ve seen in recent days against public officials leading responses to recovery efforts to Hurricane Helene and Hurricane Milton....

Let me close with this.  I think about the wisdom I’ve learned from Jewish communities in Delaware and across the country that I’ve gotten to know over the years.  It seems to me there is a delicate yet profound balance between joy and pain to the High Holidays....

From my perspective, Jewish people have embodied this duality of pain and joy for generations.  It’s your strength.  The Jewish people have always chosen to find joy and happiness and light, despite centuries of suffering, persecution, and pain. 

... [I]t’s an enduring lesson and legacy for the Jewish people and for all of America to understand.

Israel's Supreme Court Orders Tel Aviv to Permit Outdoor Sex-Separated Yom Kippur Services

Times of Israel reports that yesterday a unanimous 3-judge panel of Israel's Supreme Court ordered the municipality of Tel Aviv to permit the Orthodox Jewish outreach organization Rosh Yehudi to hold outdoor sex-separated Yom Kippur services.  According to the report:

The ruling comes after the Tel Aviv Municipality refused to allow such a service with a gender partition anywhere outdoors in the city, citing a municipal ordinance banning public gender separation and despite being requested by the court to agree to such a compromise.

Last Yom Kippur, Dizengoff Square was the scene of a violent struggle between secular activists and a group of Rosh Yehudi worshipers when the organization defied a municipality ban on a prayer service with a gender partition, a decision upheld by the courts, by setting up a barrier made of Israeli flags....

During Wednesday’s hearing, the three justices were highly critical of the Tel Aviv Municipality’s position, accused it of discriminating against Orthodox worshipers and were frustrated by its refusal to countenance the compromise suggested by the court to move the prayers to Meir Park....

The ruling itself, ordering the municipality to accept the compromise the court offered, was issued without the reasoning behind it due to the time constraints of the case, coming just days before Yom Kippur which falls this Friday night and Saturday.

Suit Over Deceptively Promoted School Religious Program Moves Ahead

In Roe v. East Baton Rouge Parish School Board, (MD LA, Oct. 8, 2024), a Louisiana federal district court refused to dismiss many claims brought by high school seniors and their parents asserting violations of the Establishment Clause, infringement of parental rights, sex discrimination, violation of the Louisiana Parents Bill of Rights, negligence, infliction of emotional distress and fraud. According to the court:

Plaintiffs’ lawsuit centers around the overarching allegation that, “[f]or several years going back to at least 2016, [defendants] ... were engaged in a conspiracy to expose public school children to overtly sectarian and religious experiences directly through the East Baton Rouge School System..., often without the knowledge or permission of the students’ parents or guardians.” [They] ...developed a program called ‘Day of Hope’, whereby public school students of the East Baton Rouge School System would be sent to a religious service during school time, chaperoned by EBRSB employees.” ... [Defendants] advertised the 2022 event to parents and students as a ‘College and Career Fair’, providing ‘a college and career fair, breakout sessions, live music, a keynote speaker, free food, and more.’ None of the promotional materials or advertisements for the event provided any obvious religious connection.” Plaintiffs claim that, “[i]n actuality, ‘Day of Hope’ speakers were almost exclusively pastors or other religious speakers who describe their participation in the public school event as ‘worship[]’ and ‘minister[ing] to over 1000 kids’, including hashtags on social media posts describing the event like ‘#GodGetsTheGlory’.” ...

The allegations taken as true suggest coercion as understood by Supreme Court precedent, and the prohibition against this practice was clearly established at the time of the alleged violation....

The Title IX claim focuses primarily on two aspects of the Day of Hope program: 1) transgender and gender non-conforming students were forced into “either male or female segregated gender groups based on their outward appearance and without their consent”; and 2) while the male students engaged in “frivolous recreational activities,” the female students were “exposed to a ‘girls gender talk’ including traumatizing lectures by pastors and other religious figures about virginity, rape, abuse, and suicide, even being told to ‘forgive’ their rapists and abusers.”...

7th Day Adventists Sue Maryland Over Narrow Interpretation of Fair Employment Practices Act Exemption

Last week, the Seventh Day Adventist Church filed suit against officials and members of the Maryland Civil Rights Commission challenging as unconstitutional the Maryland Supreme Court's narrow interpretation of the religious institution exemption from the anti-discrimination provisions of the Maryland Fair Employment Practices Act (FEPA). Last year in Doe v. Catholic Relief Services, the Maryland Supreme Court held that the religious institution exemption only applies to "claims brought by employees who perform duties that directly further the core mission (or missions) of the religious entity." (See prior posting.) The complaint (full text) in General Conference of the Seventh Day Adventists v. Horton, (D MD, filed Oct. 2, 2024), alleges that the Catholic Relief Services interpretation of FEPA exemption violates plaintiffs' rights under the Free Exercise and Establishment Clauses as well as other 1st and 14th Amendment rights. The complaint says in part:

Plaintiffs believe that all their employees are representatives of the Church and are responsible for sharing the Church’s faith with the world. It is therefore a critical component of Plaintiffs’ religious exercise that all their employees embrace the Church’s faith, support its religious mission, and share the faith with others. This is why Plaintiffs’ employment policies have long required all those they employ to be members of the Church in regular standing and to conduct themselves in accordance with the Church’s religious beliefs....

What is more, applying Catholic Relief Services’ gloss on MFEPA would require the government to engage in a “fact-intensive inquiry” to “determine[] what constitutes a core mission” for each Plaintiff, and then assess which roles “directly” further those mission(s)...."  Applying this amorphous standard would require courts to delve into entangling questions of religious doctrine.

Becket Fund issued a press release announcing the filing of the lawsuit.

Tennesse County Sued by Woman Who Was Required to Remove Hijab for Booking Photo

Suit was filed this week in a Tennessee federal district court by a Muslim woman who was required by Knox County, Tennessee Sheriff's Office employees to remove her hijab for a booking photo. Plaintiff was arrested along with others who were participating in a pro-Palestinian demonstration on the University of Tennessee campus. The photo was subsequently posted on the Sheriff Office's public website in violation of Sheriff's Office policy. The complaint (full text) in Solliz v. Knox County, Tennessee, (ED TN, filed 10/7/2024), alleges in part:

The Defendants’ mistreatment of Mrs. Soliz and their disrespect for her religious rights has scarred her.  The Defendants’ misbehavior was also illegal.  The federal Religious Land Use and Institutionalized Persons Act ... and... Tennessee’s Preservation of Religious Freedom Act—flatly prohibited the Defendants from burdening Mrs. Soliz’s free exercise of her religion in the manner they did.

Longview News-Journal reports on the lawsuit.

Cert. Denied in Alabama Frozen Embryo Case

Among the hundreds of cases in which the U.S. Supreme Court denied review on Monday was Center for Reproductive Medicine v. Burdick-Aysenne, (Sup. Ct., Docket No. 24-127, certiorari denied, Oct. 7, 2024). (Order List). In the case, the Alabama Supreme Court held, by a vote of 7-2, that Alabama's Wrongful Death of a Minor Act covers the negligent destruction of frozen embryos created during IVF treatment and kept in a clinic's cryogenic nursery. (See prior posting.) AP reports on the Court's denial of review.

Georgia Supreme Court Reinstates 6-Week Abortion Ban While Appeal Is Heard

Yesterday in State of Georgia v. Sistersong Women of Color Reproductive Justice Collective, (GA Sup. Ct., Oct. 7, 2024), the Georgia Supreme Court in a brief order reinstated Georgia's 6-week abortion ban while an appeal of a trial court's injunction is litigated. Last week a state trial court had enjoined enforcement of the abortion ban, finding it unconstitutional under the state constitution. (See prior posting.) Supreme Court Justice Ellington filed an opinion dissenting from the Supreme Court's order, saying in part:

In its motion, the State fails to show any reason for urgency that goes beyond their underlying arguments in favor of allowing the State to prevent women from deciding whether to terminate a pregnancy after embryonic cardiac activity can be detected and before a fetus is viable....

Fundamentally, the State should not be in the business of enforcing laws that have been determined to violate fundamental rights guaranteed to millions of individuals under the Georgia Constitution. The “status quo” that should be maintained is the state of the law before the challenged laws took effect.

The state Supreme Court did not stay the trial court's injunction against a provision making health records of women obtaining abortions available to the district attorney.  ACLU issued a press release announcing the decision. AP reports on the decision.

EEOC Sues Over Refusal to Accommodate Muslim Applicant's Worship Schedule

On Sept. 30 the EEOC filed a suit under Title VII charging a Washington-state based staffing and recruiting agency with religious discrimination and retaliation against a Muslim job applicant. According to an Oct. 3 EEOC Release:

Logic Staffing invited the applicant to interview ... the day after receiving his online application. On the strength of his application and interview, the staffing supervisor started to explore available openings when the applicant, who is Muslim, disclosed a possible need for a longer mid-day break to attend Friday prayer.... Logic Staffing's supervisor ended the interview and noted that the applicant was not hired due to his schedule and need to attend Friday prayer....

“Title VII requires employers, employment agencies, and unions to make adjustments to the workplace environment to allow applicants and employees to practice their faith, absent undue hardship,” said Elizabeth Cannon, director of the EEOC’s Seattle Field Office. “Instead of exploring alternatives and contacting its business clients to determine if accommodation was possible, Logic Staffing turned away a promising candidate and violated the law."

Texas Judicial Conduct Commission Withdraws Reprimand of Judge Who Refused to Perform Same-Sex Weddings

As previously reported, in 2019 the Texas State Commission on Judicial Conduct issued a Public Warning to Justice of the Peace Dianne Hensley because she refused on religious grounds to perform same-sex weddings, while continuing to perform other weddings. The Commission stated that her conduct cast doubt on her capacity to act impartially to persons appearing before her as a judge.  Hensley sued contending that the Commission's action violated the Texas Religious Freedom Restoration Act as well as her free speech rights. In July 2024, the Texas Supreme Court held that the suit could move forward. (See prior posting.) Now, in Public Statement PS-2024-1, (Sept. 9, 2024), the Commission on Judicial Conduct has withdrawn the prior Public Warning "in light of the decision handed down by the Texas Supreme Court and the underlying facts and evidence...." However, according to a report yesterday by KWTX News, Hensley will continue her lawsuit. Quoting her attorneys, First Liberty Institute:

Unfortunately, Judge Hensley has incurred damages and attorney fees fighting for religious liberty, the Constitution, other judges who feared coming forward and her own reputation. We intend to complete the mission. Other judges who feared retaliation from the Commission and hid in the shadows may now be able to step forward and file their own cases seeking damages up to $10,000, plus costs and fees.

Cert. Petition Filed in Oklahoma Religious Charter School Case

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Oklahoma Statewide Charter School Board v. Drummond, (Sup. Ct., cert. filed 10/7/2024). In the case, the Oklahoma Supreme Court held that the state Charter School Board's authorization of a Catholic sponsored publicly-funded charter school violates Oklahoma statutes, the Oklahoma Constitution and the First Amendment's Establishment Clause. (See prior posting.) The petition for review contends that exclusion of religious schools from the state's charter school program violates the 1st Amendment's free exercise clause and that religious instruction by a state-funded charter school does not constitute state action. ADF issued a press release announcing the filing of the petition for review.

U.S. Supreme Court Opens New Term with Cert. Denials; Red Mass Yesterday

The U.S. Supreme Court's new term began today. Yesterday in Washington the annual Red Mass marking the opening of the Supreme Court's new term-- hosted by the D.C. Archdiocese and the John Carroll Society-- was held at the Cathedral of St. Matthew the Apostle. (Video of full Red Mass). According to the Washington Post, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett were in attendance.

Today, the Supreme Court issued its typical very lengthy first Order List of the Term, denying review in several hundred cases.  Among them were:

Becerra v. State of Texas, (Docket No. 23-1076, certiorari denied 10/7/2024). In the case, the U.S. 5th Circuit Court of Appeals affirmed an injunction issued by a Texas federal district court barring enforcement of a Guidance document on emergency abortion care issued by the Department of Health and Human Services. (See prior posting.) The HHS Guidance to hospitals (and accompanying Letter) stated that the federal Emergency Medical Treatment & Labor Act requires hospital emergency rooms to perform certain abortions, even when they violate Texas law, when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition. AP reports on the denial of review.

Young Israel of Tampa v. Hillsborough Regional Transit, (Docket No. 23-1276, certiorari denied 10/7/2024). In the case, the U.S. 11th Circuit Court of Appeals held unconstitutional a public transit agency's policy on the sale of advertising space on its vehicles and property.  (See prior posting.) The agency prohibited ads that "primarily promote a religious faith or religious organization." Applying this policy, the transit agency rejected an ad from plaintiff promoting a "Chanukah on Ice" event.

Hile v. State of Michigan, (Docket No. 23-1084, certiorari denied 10/7/2024). 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 Hill reports on the Supreme Court's action.

Recent Articles of Interest

From SSRN:

• Io Jones, The IVF Exception: Strengthening Free Exercise Challenges to Abortion Bans, (UC Law Constitutional Quarterly, Volume 52, Issue 3 (forthcoming February 2025)).
• Netta Barak Corren & Noam Shlomai Kunitz, Minimalism, Law, Ideology, and the Public Impact of the Supreme Court, (Journal of Law and Empirical Analysis, (volume 1, issue 2, 2024)).
• P. Saliya Sumanatilake, ‘Dhamma’ – The Grundnorm of Sri Lanka’s ‘Living Law’, (August 19, 2023).
• Maria Francesca Cavalcanti, Varieties of Constitutionalism and Religion: Greece, Israel and Lebanon in Comparison, (European Yearbook of Constitutional Law (EYCL), Vol. 6 (forthcoming)).
• Katie R. Eyer, Title IX in the Age of Textualism, (86 Ohio State L. J. __ (forthcoming, 2025)).
• Naomi Schoenbaum, Rethinking Sex as Biology Under Equal Protection, (U.C. Davis Law Review (2024), Forthcoming).
• Samiul Hasan, European Colonization of the Abode of Peace: Engineered Insecurity in Muslim Majority Countries, (August 24, 2024).
• Sunil Sondhi, Hindu Law in Greater India Ancient Roots of Indigenous Law, (August 29, 2024).

Pregnancy Centers Sue California AG To Stop Enforcement of Business Fraud Statutes Against Them

Suit was filed last week in a California federal district court by a California anti-abortion pregnancy center and a Christian organization of pregnancy centers challenging the California attorney general's attempts to apply the state Business Fraud statutes to plaintiffs' promotion of abortion pill reversal. The 86-page complaint (full text) in National Institute of Family and Life Advocates v. Bonta, (CD CA, filed 10/2/2024), alleges that the Attorney General's enforcement threats violate plaintiffs' free speech and free exercise rights, saying in part:

12. Plaintiffs here ... wish to truthfully inform the public that it may be possible to counteract the first abortion drug’s lethal effects if women change their minds and seek treatment within the first three days after taking it. 

13. Plaintiffs wish to say the same (and similar) things about APR that the other nonprofits have. But the Attorney General’s actions show that if they do, they may be subject to injunctions, civil penalties of up to $2,500 per “violation,” and potential jail time....

18. The Attorney General says he supports a woman’s right to choose whether to keep her pregnancy, yet he seeks to deprive a woman who changes her mind, or who was coerced or tricked into taking the first abortion drug, of truthful information about a safe and effective way to save her pregnancy. 

19. The Constitution protects Plaintiffs’ right to speak to the public and women about lawful medical treatments provided by licensed medical professionals.  

20. This action seeks to enjoin the Attorney General from targeting, chilling, and punishing Plaintiffs’ speech about APR and a declaration that his actions violate Plaintiffs’ First and Fourteenth Amendment rights to speak freely, to practice their religion, and to due process under the law.

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

Oklahoma Specs for Classroom Bibles Apparently Limited To 2 Versions Endorsed by Donald Trump [UPDATED]

As previously reported, last June the Oklahoma State Superintendent of Public Instruction issued a Memo to all public-school superintendents in the state requiring them to incorporate the Bible into their schools' curriculum. On Wednesday, the Oklahoma State Department of Education issued a Request for Proposal for the purchase of 55,000 Bibles for Oklahoma classrooms. The RFP specified that bids must be for 

King James Version Bibles that contain The United States Pledge of Allegiance, The U.S. Declaration of Independence, The U.S. Constitution, and The U.S. Bill of Rights documents.

The Oklahoman reported yesterday: 

A salesperson at Mardel Christian & Education searched, and though they carry 2,900 Bibles, none fit the parameters. 

But one Bible fits perfectly: Lee Greenwood’s God Bless the U.S.A. Bible, endorsed by former President Donald Trump and commonly referred to as the Trump Bible. They cost $60 each online, with Trump receiving fees for his endorsement. 

Mardel doesn’t carry the God Bless the U.S.A. Bible or another Bible that could meet the specifications, the We The People Bible, which was also endorsed by Donald Trump Jr. It sells for $90.

According to The Hill, a spokesperson for the Superintendent of Public Instruction:

There are hundreds of Bible publishers and we expect a robust competition for this proposal.

UPDATE: On Nov. 7, the Oklahoma State Department of Education amended its RFP (Attachment A) to provide that the bibles covered by the bid may have the Pledge of Allegiance, Declaration of Independence, Constitution, and Bill of Rights bound separately rather than bound together with the Bible. This presumably opens bidding to many additional publishers. It also extends the deadline for submitting bids. Los Angeles Times reports on the change.

Organization Did Not Show That Its Anti-Abortion Views Are Religious Beliefs

In Oregon Right to Life v. Stolfi, (D OR, Sept. 30, 2024), an Oregon federal district court refused to issue a preliminary injunction against Oregon's requiring Oregon Right to Life to cover abortion and certain contraceptives in its employee health plan. The organization asserted a 1st Amendment free exercise claim.  The court said in part:

... Plaintiff is not affiliated with any religious practice or institution and does not have any religious requirement for being an employee or director.  The “specific purpose” and “personal life perspectives” that Plaintiff’s directors are required to subscribe to is free of any religious elements, requiring only that they subscribe to a belief in the importance of human life and oppose abortion, euthanasia, assisted suicide, and “life-destroying research.”  As noted, Plaintiff has over 25,000 members, who are not required to subscribe to any religious belief and are responsible for electing two members of Plaintiff’s board of directors.  Other than a fleeting reference to “Judeo-Christian ethics,” there is nothing in the articles of incorporation that would suggest any religious element in Plaintiff’s organization.   

There are many reasons why an individual or entity might oppose abortion and contraception, which range from deeply held religious conviction to the purely philosophical.  Plaintiff asserts in this litigation that its reasons, as an organization, are religious, but that assertion is not fully supported by the record.  It is not necessary for the Court, at this early stage of the case, to conclusively resolve whether Plaintiff’s beliefs are, in Plaintiff’s own scheme of things, religious.  But the Court’s review of Plaintiff’s organizational documents and requirements for membership, employment, and leadership cast doubt on whether Plaintiff’s opposition is genuinely religious in nature.  This doubt undermines Plaintiff’s showing of likely success on the merits.  

Defendant also challenges whether Plaintiff actually holds the beliefs professed in the Complaint.  As noted, a major aspect of Plaintiff’s objection the RHEA mandate is the provision of certain forms of contraception.  Plaintiff has maintained a health benefit plan through Providence Health Plans since 2015, years prior to the passage of the RHEA, and now objects that Providence Health Plans is not acceptable to them because it covers challenged forms of contraception.  The fact that Plaintiff maintained benefits through Providence Health Plans prior to the passage of the RHEA, despite its provisions concerning contraception, likewise casts doubt on Plaintiff’s claim.

Parents Must Be Given Right to Opt 1st Graders Out of Instruction on Transgender Issues

In a 94-page opinion in Tatel v. Mt. Lebanon School District, (WD PA, Sept. 30, 2024), a Pennsylvania federal district court held that a first-grade teacher violated parents' substantive due process and free exercise rights by introducing students to transgender issues without first giving parents the right to opt their children out of that instruction. The court said in part:

Concerns about undercutting parental authority are heightened when the children are in first grade and the person trying to influence them is their teacher.... The students’ confusion in this case illustrates how difficult it is for a first-grader when a teacher’s instruction conflicts with their Parents’ religious and moral beliefs. The heart of parental authority on matters of the greatest importance within their own family is undermined when a teacher tells first-graders their parents may be wrong about whether the student is a boy or a girl....

... Defendants failed to provide Tatel and Melton notice and the ability to opt their children out of Williams’ transgender agenda, even though Tatel’s and Melton’s objections to the instruction were based on their religious beliefs.  Defendants ratified the lack of parental notice and opt out rights, while providing parental notice and the ability to opt out for numerous other secular or religious reasons.... 

Defendants did not establish a compelling basis for refusing to provide notice and opt out rights for parents of first-graders affected by Williams’ transgender instruction.  ...

Refusing to allow notice and opt outs for religious and fundamental parental rights objections to transgender topics, i.e., forcing young children to be exposed to particular instruction over the objections of unwilling parents, while permitting notice and opt outs for other sensitive topics – is not neutral and constitutes an improper use of governmental authority....

Georgia's 6-Week Abortion Ban Declared Unconstitutional

In Sistersong Women of Color Reproductive Justice Collective v. State of Georgia, (GA Super. Ct., Sept. 30, 2024), a Georgia state trial court held unconstitutional under the state constitution Georgia's ban on abortions once a fetal heartbeat is detected (usually around 6 weeks). The court said in part:

Before the LIFE Act, Georgia law required a woman to carry to term any fetus that was viable, that had become something that -- or more accurately someone who -- could survive independently of the woman.  That struck the proper balance between the woman’s right of “liberty of privacy” and the fetus’s right to life outside the womb.  Ending the pregnancy at that point would be ending a life that our community collectively can and would otherwise preserve; no one person should have the power to terminate that.  Pre-viability, however, the best intentions and desires of society do not control, as only the pregnant woman can fulfill that role of life support for those many weeks and months.  The question, then, is whether she should now be forced by the State via the LIFE Act to do so?  She should not.  Women are not some piece of collectively owned community property the disposition of which is decided by majority vote.  Forcing a woman to carry an unwanted, not-yet-viable fetus to term violates her constitutional rights to liberty and privacy, even taking into consideration whatever bundle of rights the not-yet-viable fetus may have....

For these women, the liberty of privacy means that they alone should choose whether they serve as human incubators for the five months leading up to viability.  It is not for a legislator, a judge, or a Commander from The Handmaid’s Tale to tell these women what to do with their bodies during this period when the fetus cannot survive outside the womb any more so than society could -- or should -- force them to serve as a human tissue bank or to give up a kidney for the benefit of another...

Anticipating the virtually certain appeal, the court went on to conclude that even if it is mistaken about the constitutionality of the 6-week ban, the exception for physical health emergencies, but not mental health ones, violates the equal protection clause of the Georgia constitution. It also found unconstitutional the provision of the act making health records of women obtaining abortions available to the district attorney. However, it held that if the 6-week ban is constitutional, the conditioning of the rape or incest ban on a police report having been filed is constitutional.  CNN reports on the decision.

Recent Articles of Interest

From SSRN:

• Lael Daniel Weinberger, The Origins of Church Autonomy: Religious Liberty After Disestablishment, (August 22, 2024).
• Ahmer Bilal Soofi & Muhammad Masud, International Law and Maqasid Al-Shariah, (August 26, 2024).
• Queen Kivuva, Circumventing Secularism? Investigating Religious Intolerance in the Post Constitution 2010 Era, (August 08, 2024).
• Omar Farque, Islamic International Law ('Siyar') as a Source of International Law: An Overview of Its Role in the Development of Modern International Law, (Proceedings of the 4th NSRIC International Conference on Sustainable Education, Liberal Arts and Social Science (ICSELASS) 2024 held on April 25 – 26, 2024 in Toronto, Canada).
• Anas Jameel & Waseem Ahmed, The Dilemma of Indian Secularism (September 07, 2023).

From SmartCILP:

• Mell Chhoy, et. al., Freedom of Expressive Association and Discrimination on the Basis of Sexual Orientation, 25 Georgetown Journal of Gender & Law 545-568 (2024).
• Rob Hopkirk, Lindsay Sergi & Julia Sturges, Religious Exemptions, 25 Georgetown Journal of Gender & Law 941-972 (2024).
• Yehya Badr, Religion, Colonialism, and Legal Pluralism: The Story and Legacy of the Egyptian Choice of Law Rules for Personal Status and International and Interpersonal Conflicts of Law, [Abstract], 31 Indiana Journal of Global Legal Studies 1-60 (2024).
• Julian Velasco, A Catholic Defense of Corporate Law and Practice, 38 Notre Dame Journal of Law Ethics & Public Policy 1-38 (2024).
• Lucia A. Silecchia, A Critique of Guardianship Theory from the Perspective of Catholic Thought: The Tension between the Duty to Protect and Preservation of Legal Autonomy, 38 Notre Dame Journal of Law Ethics & Public Policy 87-128 (2024).

West Virginia Ban on Churches Incorporating Violates 1st Amendment

In Hope Community Church v. Warner, (ND WV, Sept. 26, 2024), a West Virginia federal district court held that the West Virginia constitutional provision that bars churches from incorporating is unconstitutional.  The court said in part:

Because Article VI, Section 47 of the West Virginia Constitution that reads, in part, “[n]o charter of incorporation shall be granted to any church or religious denomination,” the Court finds it is not neutral or generally applicable, and it does not further a compelling government interest. Furthermore, the Court holds this provision violates the Church’s First Amendment rights to the free exercise of religion, which is applicable to the States through the Fourteenth Amendment.

[Thanks to Eugene Volokh via Religionlaw for the lead.] 

9th Circuit En Banc Hears Fraud Claim Against LDS Church

On Tuesday, the U.S. Court of Appeals for the 9th Circuit sitting en banc heard oral arguments in Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints. (Video of full oral arguments.) In the case, 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. Huntsman says that the Church used tithed funds to finance a shopping mall and bail out of for-profit life insurance company after representing that the funds would not be used for commercial projects. A 3-judge panel of the 9th Circuit rejected the Church's claim that the suit was barred by the ecclesiastical abstention doctrine. (See prior posting.) Deseret News reports in detail on the oral arguments.

FBI Releases 2023 Hate Crime Statistics

Last Monday, the FBI released Hate Crime Statistics for the United States for 2023. A Department of Justice release summarizes the data, and a table released by the FBI shows greater detail. There were 11,862 hate crime incidents in total reported for the year, of which 22.5% (2699 incidents) were crimes motivated by religion. Of the religion-motivated crimes, 1,832 were anti-Jewish.  The next largest numbers motivated by one of the 11 specific religions reported were 236 anti-Muslim, 156 anti-Sikh and 77 anti-Catholic. The total number of hate crimes reported reflects a 2% rise from the 11,634 incidents reported for 2022. The number of religiously-motivated hate crimes reflects a 32% rise from the 2,042 incidents reported for 2022. Anti-Jewish hate crimes rose 63% from the 1,122 incidents reported in 2022. (See prior posting.)

Court Refuses to Stay Discovery in Gay Teacher's Title VII Suit Against Catholic School

In Califano v. Roman Catholic Diocese of Rockville Centre, New York, (ED NY, Sept. 24, 2024), a New York federal district court refused to stay discovery in a Title VII sex discrimination suit brought by an openly gay math and English teacher at a Catholic elementary school. The court said in part:

... [A]t the motion to dismiss stage, “a [p]laintiff only has a minimal burden of alleging facts suggesting an inference of discriminatory motivation.”...

Plaintiff has plainly satisfied this standard.  Here, Plaintiff never received any criticisms about his job performance.  Instead, the Complaint alleges he was terminated based exclusively on his sexual preference after Defendants saw a social media post of him kissing his partner— another male.  More importantly, there is direct evidence for the termination: Defendants’ own personnel alluded to his homosexuality as a reason for the termination....

... [T]he question of application of the ministerial exception is fact specific.  That said, resolution on a motion to dismiss would be inappropriate....

... Plaintiff’s duties are not as intertwined with religious doctrine.  He was not a rabbi, priest, or member of the clergy with formal doctrinal training.  Therefore, deciding his Title VII claim would not impinge on the church autonomy doctrine and Defendants’ defense fails.  And here, Defendants fail to point to demonstrate that they would have fired Plaintiff even in spite of his identifying as a homosexual male....  

Although the ministerial and church autonomy doctrines appear to be inapplicable to Plaintiff’s claim, at the very least, discovery is necessary to proceed with this case--namely to discern whether the exceptions even apply to Plaintiff’s role as a Math and English teacher here.

New Ukrainian Law Targets Ukrainian Orthodox Church for Ties to Russia

Forum 18 reports that Ukraine's Law No. 3894-IX (full text in Ukrainian) signed into law on August 24 came into force on Monday. According to the report:

The Law bans the Russian Orthodox Church – Moscow Patriarchate (ROC) for its justification and proactive support of Russia's invasion of Ukraine. The Law identifies the ROC as a part of the Russian state and an accomplice, a partner in the war crimes committed by the Russian regime. It also establishes a legal mechanism to liquidate Ukrainian religious organisations which are either affiliated with the ROC, or affiliated with a religious organisation affiliated with the ROC. Affiliations with other Russian religions supporting the Russian aggression against Ukraine are also prohibited. The language of the Law – especially the criteria defining ROC affiliation ¬– makes it clear that the main target is the Ukrainian Orthodox Church (UOC).

EEOC Rules on Accommodating Abortions and Barring Transgender Discrimination Burden Religious Exercise of Catholic Diocese

In Catholic Benefits Association v. Burrows, (D ND, Sept. 23, 2024), a North Dakota Catholic diocese and a Catholic organization supporting Catholic employers challenged rules of the Equal Employment Opportunity Commission promulgated under the Pregnant Workers Fairness Act, as well as Enforcement Guidance issued by the agency relating to discrimination on the basis of gender identity.  In the case, a North Dakota federal district court issued a preliminary injunction barring the EEOC from enforcing against plaintiffs requirements that they accommodate employees' abortions or infertility treatments that are contrary to the Catholic faith. It also enjoined the EEOC from enforcing anti-harassment provisions in a way that would require plaintiffs to speak or refrain from speaking in favor of abortion, fertility treatments, or gender transition when such is contrary to the Catholic faith; require plaintiffs to use pronouns inconsistent with a person's biological sex; or allow person to use private spaces reserved for the opposite sex. The court said in part:

It is a precarious time for people of religious faith in America. It has been described as a post-Christian age.... One indication of this dire assessment may be the repeated illegal and unconstitutional administrative actions against one of the founding principles of our country, the free exercise of religion.  

The current suit falls into a long line of cases that should be unnecessary in a country that was built on the concept of freedom of religion. Unfortunately, these cases are essential for faithful individuals where government mandates run counter to core religious beliefs. One would think after all this litigation, the government would respect the boundaries of religious freedom. Instead, it seems the goal may be to find new ways to infringe on religious believers’ fundamental rights to the exercise of their religions....

The CBA has detailed its sincerely held beliefs about human sexuality and procreation.... This belief includes a witness that these actions are immoral.... At the very least its actions would violate the retaliation provision because the employee would be fired for violating the Catholic faith by asking for an accommodation for the conduct at issue here. Because the interpretations of PWFA and Title VII threaten litigation for adhering to sincerely held beliefs, these guidelines and the underlying statutes place a substantial burden on the exercise of religion.

News From the States reports on the decision. [Thanks to several readers for the lead.] 

State RFRA Bars Taxpayer Suit Challenging Church's Property Tax Exemption

 In In re Calvary Chapel Iowa, (IA Adm. Hearings Div., Sept. 17, 2024), an Iowa Administrative Law Judge held that the state's Religious Freedom Restoration Act protects churches from taxpayer suits challenging their property tax exemptions.  The ALJ said in part:

The issue in this case is whether as a matter of statutory (not constitutional) law individuals can use the taxpayer-standing provision of Iowa Code section 427.1 to force a religious organization into litigation and spend the time and resources to prove its entitled to its property-tax exemption already claimed by it.  Prior to the enactment of the Iowa Religious Freedom Restoration Act (“RFRA”) the answer was an unequivocal yes (with individuals having done precisely this for at least a generation); however, with the passage of RFRA, the answer now appears to be no at least under the circumstances of this case. 

As discussed below, this is because this type of litigation imposes a substantial burden on the exercise of religion and because the State’s compelling interest in the appropriate administration of tax law can be met with the lesser restrictive means of having the State (with its constitutional and statutory constraints) enforce tax law.  To hold otherwise would be to allow the unaccountable political opponents of a church the option to use the power of the State to target and/or retaliate against the religious organization for the organization’s activities, thereby creating a chilling effect not only on that specific religious group but also all other similarly oriented religious organizations.  This is precisely the type of religious interference that RFRA was designed to prevent, and until the judiciary provides different guidance on the scope of RFRA, this case must be dismissed.

Christian Post reports on the decision.

10th Circuit Hears Oral Arguments in Fraud Suit Against LDS Church

Yesterday, the U.S. 10th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Gaddy v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints. In the case, a Utah federal district court dismissed a Second Amended Complaint in a class action lawsuit brought by former members of the LDS Church. The suit alleged that the Church has fraudulently misrepresented its founding to its members while its leaders did not have a sincere religious belief in the narrative. It also alleged that the Church made fraudulent misrepresentations about the use of money received from members' tithing. (See prior posting.) Courthouse News Service reports at greater length on the oral arguments.

Missouri Supreme Court Issues Opinions Supporting Prior Order on Abortion Ballot Measure

As previously reported, on September 14 the Missouri Supreme Court ruled that the Missouri's Right to Reproductive Freedom amendment must appear on the November ballot, reversing a decision by a trial court. It indicated that opinions supporting its order would follow. Now the Court has filed those opinions.  In Coleman v. Ashcroft, (MO Sup. Ct., Sept. 20, 2024), the Missouri Supreme Court in a 4-3 decision held that petitions proposing a state constitutional amendment only need to identify existing sections of the state constitution that are inconsistent and irreconcilable with the proposed amendment. Petitions need not identify all statutes that might later be declared invalid if the proposed amendment is approved. The court also held that the proposed amendment does not violate the state constitution's single subject requirement.

Judge Powell issued a concurring opinion.  Judge Broniec, joined by Judges Fischer and Gooch, filed a dissenting opinion contending that Missouri law also requires petitions to list existing statutes that would be in direct conflict with the proposed constitutional amendment.

6th Circuit Rules on Christian Plaintiffs' Standing to Challenge Michigan's Civil Rights Acts

In Christian Healthcare Centers, Inc. v. Nessel, (6th Cir., Sept. 20, 2024), a Christian membership-based medical service ministry and two Catholic K-12 schools challenged prohibitions on sexual orientation and gender-identity discrimination under Michigan's public accommodation law (EAA) and its Elliot-Larsen Civil Rights Act. The U.S. 6th Circuit Court of Appeals found that plaintiffs had standing to seek an injunction only as to some of their challenges. The court summarized its holding:

In these three related cases, Plaintiffs allege that Michigan’s laws chill their speech and conduct in violation of the First and Fourteenth Amendments.  The district court dismissed each case for want of standing, reasoning that no Plaintiff had shown that Michigan’s laws arguably proscribed its speech or conduct and that, in the alternative, there was no credible threat that Michigan would enforce its laws against any Plaintiff.

We agree only in part....

We express no view regarding the merits of any claim, the appropriate resolution on remand of the motions for preliminary relief, or what conclusions might be warranted concerning any issue after discovery.  We hold only that (a) no Plaintiff has established standing to challenge the EAA, (b) Christian Healthcare has plausibly established standing to challenge the ELCRA’s public-accommodation provision, employment provision, and the publication clauses of each provision, (c) Sacred Heart has plausibly established standing to challenge the same provisions, the ELCRA’s education provision, and the publication clause of that provision, and (d) St. Joseph has failed to plausibly establish standing.

Judge Murphy filed a concurring opinion.

Recent Articles of Interest

From SSRN:

• Mark Satta, Same-Sex Wedding Service Refusals and Obergefell's "Decent and Honorable" Dicta, (Wayne State University Law School Research Paper (forthcoming)).
• Thomas Charles Berg, Religious Liberty in a Polarized Age: Introduction, (in Religious Liberty in a Polarized Age, (Eerdmans Publishing 2023)).
• P. Saliya Sumanatilake, Might Buddhist Tenets Be Shown to Have Founded or Substantially Influenced Any Doctrine of Western Jurisprudence?, (August 19, 2023).
• Rabea Benhalim, Agreeing to Disagree: Abortion Jurisprudence in Jewish and Islamic Law, (B.Y.U. L. Rev.____ (2025) (forthcoming)).
• Jeremy Rovinsky, We Should Meat: A Reply To Professor Siddhanth Prasad, (10 J. Global Just. & Pub. Pol. 34, 2024).
• Andrew Hull, Caste Discrimination and the Imperfect Promise of Labor Arbitration, (31 Asian American Law Journal (Forthcoming)).
• Nicolas Garon, Veiling Laws Throughout Iranian History: The Relationship to Religion, Before and During Islamic Law, (August 22, 2022).
• Nisar Muarrah, A Comparative Analysis of Rehabilitation Principles in Islamic and Western Criminal Justice Systems, (June 20, 2024).
• James M. Oleske, Jr., Law Office History and the Unrelenting Attack on Public Accommodations Law, (32 William & Mary Bill of Rights Journal 959 (2024)).

From SmartCILP:

• Symposium, Law vs. Antisemitism, Lewis & Clark Law Review, Volume 27, Number 4, 2024.

Kentucky Governor Issues Executive Order Limiting Conversion Therapy for Minors

 After attempts to get the Kentucky state legislature to ban conversion therapy for minors failed, on Wednesday Kentucky Governor Andy Beshear issued Executive Order 2024-632 (full text) which uses executive powers available to him to limit the practice. The Executive Order provides in part:

The Cabinet for Health and Family Services shall take all actions necessary to prohibit the direct or indirect use of state and federal funds for the practice of conversion therapy on minors, referring a minor for conversion therapy, or extending health benefits coverage for conversion therapy with a minor....

Any state agency that discovers or receives a report that a provider certified or licensed to practice in Kentucky engages in conversion therapy efforts with a person under 18 years of age or performs counseling on conversion therapy as part of his training for any profession licensed under a professional certification or licensing board within the Commonwealth of Kentucky shall report that provider to the appropriate professional certification or licensing board within the Commonwealth for potential disciplinary action....

The Governor's office issued a press release announcing the signing of the Executive Order. AP reports on the Executive Order. [Thanks to Scott Mange for the lead.]

Supreme Court Review Sought for NY Health Insurance Abortion Coverage Mandate

 A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Roman Catholic Diocese of Albany v. Harris, (Sup. Ct., filed 9/18/24). In the case New York's highest appellate court rejected a claim that the "religious employer" exemption to the state's requirement that health insurance policies cover medically necessary abortion services is too narrow.  The exemption is only available to entities whose purpose is to inculcate religious values and that primarily employ and serve persons who share their religious tenets. Plaintiffs, which are religiously affiliated entities, contend that their free exercise rights are infringed because they do not meet the criteria for the exemption. (See prior posting.) Becket Fund issued a press release announcing the filing of the petition for review.

European Court Says Spain Violated Rights of Jehovah's Witness in Authorizing Blood Transfusion

In Case of Pindo Mulla v. Spain, (ECHR, Sept. 17, 2024), the European Court of Human Rights held that Article 8 of the European Convention on Human Rights was violated by Spanish courts when they authorized a blood transfusion for a critically ill woman who, because of her beliefs as a Jehovah's Witness, had refused all blood transfusions. The court said in part:

181.  The Court fully appreciates that the actions taken in relation to the applicant on the day in question by the staff of both hospitals were motivated by the overriding concern to ensure the effective treatment of a patient who was under their care, in keeping with the most fundamental norm of the medical profession. It does not question their assessments regarding the severity of the applicant’s condition at the time, the urgency of the need to treat her, the medical options available in the circumstances, or that the applicant’s life was saved that day.

182.  However, the authorisation by the duty judge to proceed with whatever treatment was considered necessary resulted from a decision-making process that was affected by the omission of essential information about the documenting of the applicant’s wishes, which had been recorded in various forms and at various times in writing. Since neither the applicant nor anyone connected with her was aware of the decision taken by the duty judge, it was not possible, even in theory, to make good that omission. Neither this issue, nor the issue of her capacity to take a decision, were addressed in an adequate manner in the subsequent proceedings. In light of this, it cannot be said that the domestic system adequately responded to the applicant’s complaint that her wishes had been wrongly overruled....

183.  In the Court’s view, the shortcomings identified above ... indicate that the interference complained of was the result of a decision-making process which, as it operated in this case, did not afford sufficient respect for the applicant’s autonomy as protected by Article 8, which autonomy she wished to exercise in order to observe an important teaching of her religion.

Eight of the 17 judges dissented as to the damages awarded by the majority. Courthouse News Service reports on the decision.

10th Circuit: Jail Violated Free Speech Rights of Volunteer Minister

In Jarrard v. Sheriff of Polk County, (11th Cir., Sept. 16, 2024), the U.S. 11th Circuit Court of Appeals held that Georgia jail officials violated the free speech rights of a volunteer county jail minister. Irritating both jail officials and other volunteer jail ministers, Rev. Jarrard believed and taught that baptism by immersion is necessary to salvation and that, without it, a person will be condemned to Hell. Policies governing participation as a volunteer minister went through a number of revisions. Ultimately, they resulted in Jarred being excluded from the program and baptism of inmates being prohibited. The court said in part:

At least for summary-judgment purposes, therefore, we conclude that Moats and Sharp engaged in viewpoint discrimination based on their disagreement with Jarrard’s beliefs about baptism.  We further conclude that their disapproval of his volunteer ministry application can’t survive strict scrutiny.  ...Moats and Sharp assert that they denied Jarrard’s applications for fear that his participation in the volunteer ministry program would “(1) tend to undercut inmate well-being and (2) unreasonably create problems for jail administrators.”  Even if we were to indulge those assertions ...  and even assuming that they constitute compelling governmental interests, denying Jarrard’s application was not the least restrictive means of achieving those ends.  As just one example, the Jail could have posted notices stating that Jarrard would be addressing a potentially contentious topic and let the inmates decide whether they wanted to attend....  So too, they could have allowed other volunteer ministers to opt out of working with Jarrard so as to reduce the risk of contentious interactions.  And to the extent that they were worried about security issues related to the performance of baptisms, they could have instituted precautions to minimize them.  They could, for instance, have limited attendance at an inmate’s baptism or required an inmate being baptized to be shackled throughout the process to reduce risk of escape.  There is no indication that Moats and Sharp attempted to take any such (or other similar) steps.....

The court also found that two versions of the policy gave jail administrators unbridled discretion in passing on volunteer ministers' applications. 

 Judge Rosenbaum filed an opinion dissenting in part, contending that insofar as damages were sought from the sheriff and his chief deputy, they were protected by qualified immunity.

Jewish Students Sue Haverford College Alleging Title VI Violations

Suit was filed last week in a Pennsylvania federal district court by Jewish students as Haverford College alleging that the college has violated Title VI of the 1964 Civil Rights Act by discriminatory application of its nondiscrimination policy and willful failure to enforce its nondiscrimination policy to protect Jewish students. The complaint also alleges breach of contract. The complaint (full text) in Jews at Haverford v. The Corporation of Haverford College, (ED PA, filed 5/13/2024), alleges in part:

Haverford has become an illiberal institution fixated on appeasing the demands of anti-Israel students and faculty.  Haverford refuses to tolerate ideas about Israel that are at odds with its new political orthodoxy—in particular, the Jewish people’s ethnic, historical, shared ancestral and religious claims to their ancestral homeland in Israel.  This intolerance is enforced through shunning of Jewish students committed to the existence of the State of Israel as a Jewish state, and through the lauding and accepting of antisemitic student demands by Haverford’s President Wendy Raymond and her administration....

Haverford has violated Title VI by failing to protect the rights of Jewish Haverford students to participate fully in college classes, programs, and activities, without fear of harassment if they express beliefs about Israel that are anything less than eliminationist.  In this pervasively hostile environment, Jewish students hide their beliefs, as well as their attendance at religious services or even secular events at which support for the existence of Israel is articulated or defended.  While Israel-hating students march across the campus chanting quotes from the terrorist group Hamas calling for Israel’s destruction—as they have done frequently and without any restraint or interference from the Administration— these Jewish students hide in their rooms, feeling unable even to go to class or to engage in any of the other activities that constitute the life of an undergraduate....

The Deborah Project has more information on the lawsuit.

10th Circuit Upholds Colorado's Ban on Conversion Therapy

In Chiles v. Salazar, (10th Cir., Sept. 12, 2024), the U.S. 10th Circuit Court of Appeals in a 2-1 decision held that Colorado's Minor Conversion Therapy Law that bans mental health professionals from providing conversion therapy to minors does not violate the free speech or free exercise rights of mental health professionals. Rejecting petitioner's free speech argument, the majority said in part:

The statute is part of Colorado’s regulation of the healthcare profession and, as the district court correctly found, applies to mental health professionals providing a type of prohibited treatment to minor patients. On the record before us, we agree the MCTL regulates professional conduct that “incidentally involves speech.”....

Ms. Chiles may, in full compliance with the MCTL, share with her minor clients her own views on conversion therapy, sexual orientation, and gender identity. She may exercise her First Amendment right to criticize Colorado for restricting her ability to administer conversion therapy. She may refer her minor clients to service providers outside of the regulatory ambit who can legally engage in efforts to change a client’s sexual orientation or gender identity.....

Rejecting petitioner's free exercise claim, the majority said in part: 

Because, on the record before us, we find Ms. Chiles has failed to show the MCTL lacks neutrality and general applicability, the district court did not abuse its discretion in finding the MCTL is subject to rational basis review..... And ... the MCTL survives rational basis review...

Judge Hartz dissenting said in part:

The issue in this case is whether to recognize an exception to freedom of speech when the leaders of national professional organizations declare certain speech to be dangerous and demand deference to their views by all members of their professions, regardless of the relevance or strength of their purported supporting evidence. As I understand controlling Supreme Court precedent, the answer is clearly no.... 

In particular, a restriction on speech is not incidental to regulation of conduct when the restriction is imposed because of the expressive content of what is said. And that is the type of restriction imposed on Chiles....

The consensus view of organizations of mental-health professionals in this country is that only gender-affirming care (including the administration of drugs) should be provided to minors, and that attempts to change a minor’s intent to change gender identity are dangerous—significantly increasing suicidal tendencies and causing other psychological injuries. The organizations insist that this view reflects the results of peer-reviewed studies.

But outside this country there is substantial doubt about those studies. In the past few years there has been significant movement in Europe away from American orthodoxy.....

Advocate reports on the decision.

[Corrected: The majority opinion was written by Judge Rossman. Judge Hartz dissented. The prior version of this post incorrectly identified the Judge Rossman as the dissenter instead of being the author of the majority opinion.]

Supreme Court Asked to Review Decision on Opting Students Out of Instruction on Gender and Sexuality

A petition for certiorari (full text) was filed last week with the U.S. Supreme Court in Mahmoud v. Taylor, (Sup. Ct., cert. filed 9/12/2024). Petitioners seek review of a 2-1 decision by the U.S. 4th Circuit Court of Appeals in a challenge to a school board's refusal to allow parents to opt their children out of exposure to a group of LGBTQ inclusive books. The parents contend that refusal to provide an opt out alternative violates their religious free exercise rights. The 4th Circuit affirmed a Maryland federal district court's refusal to grant a preliminary injunction. (See prior posting.). Becket Fund issued a press release announcing the filing of the petition for review.

Nebraska Supreme Court Approves Competing Initiative Measures on Abortion

Last Friday, the Nebraska Supreme Court rejected challenges to two competing state constitutional amendments relating to abortion. In State of Nebraska ex. rel. Brooks v. Evnan, (NE Sup. Ct., Sept. 13, 2024), the Nebraska Supreme Court held that the ballot initiative titled Protect the Right to Abortion does not violate the Nebraska Constitution's single subject rule. In State of Nebraska ex. rel. Constance v. Evnan, (NE Sup. Ct., Sept. 13, 2024), the Nebraska Supreme Court similarly held that the ballot initiative titled Protect Women and Children does not violate the state constitution's single subject rule. Nebraska Public Media reports on the decisions.

Recent Articles of Interest

 From SSRN:

• L. Joe Dunman, Testing Religious Insanity, (70 Wayne Law Review __ (2025) (forthcoming)).
• Aaron J. Rappaport, The American Creed and the Constitutional Order, (58 Creighton L. Rev. __ (2024)).
• L. Ali Khan, The German Far-Right An Examination of the AfD Manifesto, (August 17, 2024).
• Sara Saleem, Inheritance to Great-Grand Children, (July 15, 2024).
• Andre Oboler, et. al., Online Anti-Muslim Hate and Racism Against Palestinians and Arabs, (October 2023 – February 2024 | Report: IR2403).
• Samiul Hasan, Constitutionalism in Muslim Majority Countries: Religiously Required, Judicially Wrecked, (August 01, 2024).
• Ross Hickey, A. Abigail Payne & Justin Smith, Canadian Tax Foundation (CTF), Policy Forum: Understanding the Efficacy of Tax Credits for Charitable Donations in Canada, (Canadian Tax Journal/Revue fiscale canadienne, Vol. 72, No. 2, 2024, pp. 317 - 327).
• Teresa Stanton Collett, Personhood and the Post-Dobbs Abortion Debate, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 24-12 (2024).

From SmartCILP:

• Larry J. Obhof, Assessing the Future of "Offended Observer" Standing in Establishment Clause Cases,72 Cleveland State Law Review 395-432 (2024).
• Mark Strasser, Free Exercise, the Respect for Marriage Act, and Some Potential Surprises,72 Cleveland State Law Review 433-474 (2024).
• Nathan J. Ristuccia, The Priesthood of All Citizens: On the Pseudo-Theology of Penitent Privilege, 93 Mississippi Law Journal 291-348 (2023).
• Andrew B. Rogers, Beyond Undue Hardship: Religion and Sincerity in a Post-Groff World, 62 University of Louisville Law Review 341-482 (2024).

Buffer Zone Ordinance Violates Free Speech Rights of Protesters Because of Inadvertent Breadth of Ban

In Sisters for Life, Inc. v. Louisville-Jefferson County Metro Government, (WD KY, Sept. 13, 2024), anti-abortion sidewalk counselors challenged a city ordinance that created a ten-foot buffer zone from the street to the door of health care clinics.  Only clinic personnel, patients and those accompanying them, law enforcement and persons walking through to a different destination could enter the buffer zone. The ordinance was passed because of problems at one particular abortion clinic. The court found that the Ordinance would have been permissible if limited to clinics with problems but violated free speech rights because it applies to all healthcare facilities. The court said in part:

At the time of the ordinance’s passage, the city had established healthcare access problems at only one facility—EMW—and principally on Saturday mornings.... It is clear from the record that the Council intended for the ordinance to create buffer zones only at facilities which were having access or safety issues and chose to request a buffer zone, like abortion clinics, battered women’s shelters, and emergency rooms.... This is what the legislators expected in drafting and passing the ordinance.... And how EMW understood the ordinance to work....  And how LMPD enforced its terms.... 

... Metro Council gave careful consideration to each alternative and endeavored to choose the least burdensome option.  But for its inadvertent application to facilities with no established access issues, it is difficult to imagine how the ordinance could be more closely tailored to the city’s interest in preserving safe access to healthcare facilities. Regardless, the Court is bound by the Sixth Circuit’s holding: “The [Supreme] Court’s conclusion in McCullen applies here.  This buffer zone is not narrowly tailored.”...

The court also concluded that the ordinance did not violate plaintiffs' free exercise rights or the Kentucky Religious Freedom Restoration Act because the ordinance is neutral and generally applicable. 

Tribe Seeks Supreme Court Review of Transfer of Sacred Site to Mining Company

A petition for certiorari (full text) was filed this week with the U.S. Supreme Court in Apache Stronghold v. United States, (Sup. Ct., filed 9/11/2024). In the case, the U.S. 9th Circuit Court of Appeals sitting en banc, by a vote of 6-5, refused to enjoin the government from transferring to a copper mining company federally-owned forest land that is of significant spiritual value to the Western Apache Indians. (See prior posting.) The petition for review raises issues under both RFRA and the 1st Amendment's Free Exercise clause. Becket Fund issued a press release announcing the filing of the petition seeking Supreme Court review.

Indiana Trial Court Rejects "As Applied" Challenge to State Abortion Restrictions

Last year, Indiana's Supreme Court rejected a facial challenge to the state's 2022 abortion law. In that case, the Indiana Supreme Court held:

Article 1, Section 1 protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk. Yet, this holding does not support Plaintiffs’ claim for a preliminary injunction. That is because they framed their claim as a facial challenge to the entire statute in all conceivable circumstances rather than an as-applied challenge to the law’s application in any particular set of circumstances where a pregnancy endangers a woman’s life or health. (See prior posting.)

Plaintiffs then filed an "as applied" constitutional challenge to the Indiana law. In Planned Parenthood Great Northwest, Hawai'i, Alaska, Indiana, Kentucky, Inc. v. Members of the Medical Licensing Board of Indiana, (IN Cir. Ct., Sept. 11, 2024), an Indiana state trial court now rejected that challenge.  The court said in part:

Plaintiffs have not shown a that S.B.1 materially burdens the rights of any specific patient or well-defined class of patients to access constitutionally protected abortion care. Significant and compelling evidence regarding the policy implications of S.B. 1-- and its effect on medical professionals in particular-- was presented. However, the Court cannot substitute its own policy preferences for that of the Indiana General Assembly and the Court limits its examination to the General Assembly's constitutional authority post-Planned Parenthood. Plaintiffs have not shown an instance where an abortion is necessary to treat a serious health risk but would also fall outside of the Health and Life Exception.  Additionally, Plaintiffs have not demonstrated that the Hospital Requirement is materially burdensome to constitutionally protected abortion access, nor that it fails rational basis review as to statutorily authorized (but not constitutionally protected) abortions.

Liberty Counsel issued a press release announcing the decision.

North Dakota Trial Court Says State Abortion Ban Violates State Constitution

 In Access Independent Health Services, Inc. v. Wrigley, (ND Dist, Ct., Sept. 12, 2024), a North Dakota state trial court judge held that the state's current abortion law that bans abortions (with limited exceptions), violates the state constitution.  The court said in part:

[T]he court concludes that (1) the Amended Abortion Ban set forth in Chapter 12.1-19.1, N.D.C.C., as currently drafted, is unconstitutionally void for vagueness; and (2) pregnant women in North Dakota have a fundamental right to choose abortion before viability exists under the enumerated and unenumerated interests protected by the North Dakota Constitution for all North Dakota individuals, including women-- specifically, but not necessarily limited to, the interests in life, liberty, safety, and happiness enumerated in Articles [I], section 1 of the North Dakota Constitution.

The court also observed:

... [T]he decision in this matter may be one of the most important this Court issues during its time on the bench. However, in reaching the decision below, it is also not lost on the Court that, on appeal, this Court's decision is given no deference.

... The Court is left to craft findings and conclusions on an issue of vital public importance when the longstanding precedent on that issue no longer exists federally, and much of the North Dakota precedent on that issue relied on the federal precedent now upended-- with relatively no idea how the appellate court in this state will address the issue.

North Dakota Monitor reports on the decision.

South Carolina Supreme Court: State Scholarship Program for Private School Students Violates State Constitution

 In Edison v. South Carolina Department of Education, (SC Sup. Ct., Sept. 11, 2024), the South Carolina Supreme Court in a 3-2 decision held that the state's Education Scholarship Trust Fund Act violates the state constitution insofar as it authorizes use of ESTF funds to pay tuition and fees to private educational institutions.  Article XI, Sec. 4 of the South Carolina Constitution provides:

No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.

The court said in part:

A parent who chooses to use a scholarship to pay their child's private school tuition is undoubtedly using public funds to provide a direct benefit to the private school....  After we clear away the window dressing, we can see the Act funnels public funds to the direct benefit of private schools.  This is what our constitution forbids.  We conclude Petitioners have carried their burden of proving beyond a reasonable doubt the portion of the Act that allows tuition payments from public funds for the direct benefit of private educational institutions violates Article XI, Section 4.

Chief Justice Kittredge, joined by Justice Few, filed a dissenting opinion, saying in part:

Under the South Carolina Constitution, the use of public funds for the direct benefit of a private school is impermissible; the use of public funds for the indirect benefit of a private school is entirely permissible....

In my view, ... the structure and operation of the ESTF Act provide an indirect benefit to schools of the families' choice—both private and public alike. Nonetheless, the majority opinion today defines the phrase "direct benefit" so broadly that it swallows any possible meaning of "indirect benefit" in the process.

AP reports on the decision. [Thanks to Thomas Rutledge for the lead.]

10th Circuit: School Administrator Fired Over Religious Comments Has Discrimination, But Not Retaliation, Claim

 In McNellis v. Douglas County School District, (10th Cir., Sept. 10, 2024), the U.S. 10th Circuit Court of Appeals affirmed dismissal of retaliation claims by a high school Assistant Principal/ Athletic Director, but reversed dismissal of his religious discrimination claims under Title VII and the Colorado Anti-Discrimination Act.  Plaintiff Corey McNellis was fired after he complained about the depiction of Christians in an upcoming school play about the 1998 hate-motivated murder of Matthew Shepard in Wyoming. The court concluded the McNellis's speech was not protected by the 1st Amendment because it was made in the course of performing his official duties. It also concluded the McNellis's complaints about being investigated because of his Christian beliefs were not the cause of his firing. In allowing plaintiff to proceed with his discrimination claims, the court said that plaintiff had alleged sufficient facts to give rise to an inference of discrimination.