Parents Sue California High School Alleging Long History of Tolerating Antisemitism

Suit was filed last week in a California federal district court by parents of six high school students in the Sequoia Union High School District charging the high school with tolerating antisemitism expressed by students and teachers.  The complaint (full text) in Kasle v. Puttin, (ND CA, filed 11/15/2024), alleges in part:

SUHSD has a long history of tolerating casual antisemitism on its campuses.  Students and faculty have openly joked about Nazis and the Holocaust, while certain teachers have peddled antisemitic falsehoods about Middle East history without facing consequences.  District leadership has consistently turned a blind eye to such behavior.  SUHSD’s antisemitism problem worsened significantly after October 7, 2023, when Hamas—a U.S.-designated terrorist organization—invaded southern Israel and then mutilated, raped, and murdered more than 1,200 people.  Although quick to address other global injustices, SUHSD remained conspicuously silent about this historic massacre of Jews, contradicting the District’s professed commitment to equity....

The 64-page complaint alleges violation of Title VI, of the 1st and 14th Amendments as well as of parallel provisions of California law and asks for an injunction in part:

prohibiting Defendants’ discriminatory and harassing treatment of Plaintiffs in violation of Plaintiffs’ constitutional and statutory rights; 

prohibiting the District, its employees, agents, and representatives from engaging in any form of antisemitic behavior or conduct, including, but not limited to, verbal, written, or physical actions that demean, harass, or discriminate against individuals based on their Jewish identity or their identification with and commitment to Israel;

ordering the District to adopt and implement a clear and comprehensive policy specifically addressing antisemitism, as defined by the International Holocaust Remembrance Alliance’s Working Definition of Antisemitism....

It also asks the court to appoint a Special Master to monitor the district's implementation of policies against antisemitism. 

Ropes & Gray issued a press release announcing the filing of the lawsuit. 

Certiorari Denied in Challenge To West Virginia's Ban on Transgender Girls on Girls' Sports Teams

The U.S. Supreme Court yesterday denied review in West Virginia Secondary School Activities Commission v. B. P. J., (Docket No. 24-44, certiorari denied 11/18/2024). (Order List.)  In the case the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that the West Virginia Save Women's Sports Act violates Title IX on the facts of the case before it and remanded for further findings on whether the Act as applied to transgender girls violates the Equal Protection Clause.

UPDATE: The certiorari petition which the Court acted on here only raised the question of whether the Secondary School Activities Commission is a state actor. A cert. petition raising the Title IX and Equal Protection issues is still pending before the Court.

Oklahoma Education Department Creates Office of Religious Liberty and Patriotism

In a November 12 press release, Oklahoma State Superintendent of Public Instruction Ryan Walters announced the creation of the Office of Religious Liberty and Patriotism at the State Department of Education, saying in part:

[The Office] will serve to promote religious liberty and patriotism in Oklahoma and protect parents, teachers, and students’ abilities to practice their religion freely in all aspects. The office will also oversee the investigation of abuses to individual religious freedom or displays of patriotism. Guidance to schools will be issued in the coming days on steps to be taken to ensure the right to pray in schools is safeguarded....

The new office will be charged with supporting teachers and students when their constitutional rights are threatened by well-funded, out of state groups as happened in Skiatook last year when a school was bullied into removing Bible quotes from a classroom....

The newly established Office of Religious Liberty and Patriotism is in line with one of President Trump’s top education priorities, “Freedom to Pray.”...

KOKH News has more on Walters' promotion of school prayer. [Thanks to Scott Mange for the lead.]

2nd Circuit Remands Two Plaintiffs' Claims for Improper Denial of Religious Exemptions from Vaccine Mandate

New Yorkers for Religious Liberty v. City of New York, (2d Cir., Nov. 13, 2024), is a decision on appeals of two cases challenging denials of religious exemptions from the Covid vaccine mandate imposed by the City of New York on public school teachers and staff.  While affirming the dismissal of many of the claims, the U.S. 2nd Circuit Court of Appeals vacated dismissals of claims by two plaintiffs, Natasha Solon and Heather Clark, and remanded their cases to the district court. The court said in part:

If Solon’s initial, denied exemption application reflected her purely personal religious practices, then she has plausibly pleaded that she was improperly denied an accommodation because the old Arbitration Award Standards only allowed “exemption requests . . . for recognized and established religious organizations,” and did not honor exemptions for those whose “religious beliefs were merely personal.” ...  That could present a First Amendment problem.,,,

... [T]he documents Clark submitted ... describe a religious objection to the vaccine because it is a product of development using fetal cell lines and a “differing substance[]” that she may not ingest consistent with her faith....  Nevertheless, the district court dismissed Clark’s claim because “the [Citywide] panel found that her decision to not receive a vaccin[e] was not based on her religious belief, but rather, on nonreligious sources,” a conclusion the district court deemed “entirely proper . . . under Title VII.”... While such a conclusion could indeed be proper and constitutional if the Citywide Panel had a basis for reaching it, Clark’s allegations support the plausible inference that the Panel denied her request solely on the basis of its characterization of her religious objection as too idiosyncratic rather than as not sincerely held or non-religious in nature. 

Given this possibility, Clark has stated a cognizable as-applied claim at this stage.

Recent Articles of Interest

From SSRN:

• Saroj Shekhar Mallick, The Constitutional Framework of Secularism in India: A Legal and Historical Perspective, (September 30, 2024).
• P. Saliya Sumanatilake, A Universal Philosophy of Law, (August 19, 2023).
• Abubakar Yusuf Mamud, The UMMAH Project: A Comprehensive P/CVE Framework for Countering Violent Extremism in Nigeria, (October 01, 2024).
• Mitchell F. Crusto, Equality, Morality, & Religious Liberty, 77 SMU L. Rev. F. 219 (2024).
• Arhant Kumar, Comprehending Individuals’ Religious Freedom under Indian Secularism, (October 01, 2024).
• Valentino Cattelan, The Making of Law in Islam: Fiqh as Delivery of Verdicts, (March 20, 2024).
• Moritz Schroeder, From Fragmentation to Unity - A Conceptual Approach for Enhanced Transparency, Digitalization, and Coordination in the Donation Market, (October 04, 2024).

From SmartCILP:

• Rabea Eghbariah, Toward Nakba as a Legal Concept, 124 Columbia Law Review 887-992 (2024).
• Bente de Leede & Nadeera Rupesinghe. Registering and Regulating Family Life: The School Thombos in Dutch Sri Lanka, 41 Law & History Review 501-522 (2023).
• Christopher C. Lund, Book Review. Favoritism, Coercion, and the Establishment Clause. Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience, by Nathan S. Chapman, Michael W. McConnell, 122 Michigan Law Review 1303-1320 (2024).

Suit Challenges Kentucky Abortion Bans

A class action lawsuit was filed last week in a Kentucky state trial court challenging the constitutionality under the Kentucky state constitution of two separate abortion bans found in Kentucky statutes. The complaint (full text) in Poe v. Coleman, (KY Cir. Ct., filed 11/12/2024), alleges that both the six-week ban, and the near total ban violate the right to privacy and the right to self-determination protected by the individual liberty guarantees of Sections 1 and 2 of the Kentucky Constitution.  The complaint alleges in part:

92. The constitutional right to privacy protects against the intrusive police power of the state, putting personal and private decision-making related to sexual and reproductive matters beyond the reach of the state. The right to privacy thus protects the right of a pregnant individual to access abortion if they decide to terminate their pregnancy. ...

98. The constitutional right to self-determination guards every Kentuckian’s ability to possess and control their own person and to determine the best course of action for themselves and their body. An individual who is required by the government to remain pregnant against her will— a significant physiological process affecting one’s health for 40 weeks and culminating in childbirth—experiences interference of the highest order with her right to possess and control her own person. The right to self-determination thus protects Kentuckians’ power to control whether to continue or terminate their own pregnancies.

The Kentucky ACLU issued a press release announcing the filing of the lawsuit. [Thanks to Thomas Rutledge for the lead.]

Australia's High Court Says Diocese Is Not Vicariously Liable for Sex Abuse by Priest [Corrected]

In Bird v DP (a pseudonym) , (HCA, Nov. 13, 2024), the High Court of Australia in an appeal from the Supreme Court of Victoria held that a Catholic diocese is not vicariously liable for sexual abuse of a five-year old boy by a priest from a parish church within the diocese. Plaintiff at age 49 instituted suit for the psychological injuries he had sustained as a child by two separate sexual assaults by the priest that took place at the child's home. The majority opinion on behalf of five justices held in part:

A diocese, through the person of the bishop of that diocese, appoints priests and assistant priests to parishes within that diocese.... In 1966, Coffey was appointed by the then Bishop of Ballarat to St Patrick's parish church.... Coffey was not employed by the Diocese or engaged by the Diocese as an independent contractor. There was no finding that Coffey was an agent of the Diocese.

... [A] relationship of employment has always been a necessary precursor in this country to a finding of vicarious liability and it has always been necessary that the wrongful acts must be committed in the course or scope of the employment. There is no solid foundation for expansion of the doctrine or for its bounds to be redrawn.

The majority explained its conclusion in part as follows: 

... [T]he Victorian Parliament enacted the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) and amended the Wrongs Act 1958 (Vic) in response to the Redress and Civil Litigation Report of the Royal Commission into Institutional Responses to Child Sexual Abuse...  and, in so doing, adopted the recommendation in the Royal Commission report of the imposition of a new duty of care to operate prospectively only and not retrospectively....

Taken as a whole, the terms of the Victorian Parliament's legislative reforms ... weigh heavily against any expansion of the common law doctrine of vicarious liability. The "genius of the common law" includes that the "the first statement of a common law rule or principle is not its final statement", but its genius also includes many self-imposed checks and balances against "unprincipled, social engineering on the part of the common law judges". It is one thing to accept that the common law should not stand still merely "because the legislature has not moved" to adapt to changing social conditions, but another to change a common law principle in circumstances where the legislature has responded to a comprehensive review of the common law's inadequacies by the enactment of statutory provisions which make no change to that common law principle.

Justice Jagot filed a concurring opinion.

Justice Gleeson filed an opinion concurring only in the result, saying in part:

Government attention to historical child abuse by members of religious and other non-government organisations, and subsequent legislative reform to extend liability for personal injury suffered because of child abuse, reflect an evolution of attitudes to the treatment of children in our society. That evolution has produced a general intolerance of physical, sexual and psychological abuse of children, and increased recognition of societal responsibility for setting and maintaining appropriate standards of care for children, especially in institutional settings. The evolution has also been accompanied by reduced deference towards religious and charitable organisations and a commensurate preparedness to impose legal liability upon religious and other non-government organisations, including for harms inflicted by persons associated with such organisations. These changes in social conditions are not unique to Australia and can be observed across the common law world and beyond.

This case is a missed opportunity for the Australian common law to develop in accordance with changed social conditions and in tandem with developments in other common law jurisdictions. For the reasons given below, I do not agree with the plurality that relationships that are akin to employment do not attract vicarious liability in Australia.

In my view, the relationship between the Diocese of Ballarat ...,  and Father Bryan Coffey ..., an assistant parish priest appointed to that role in the parish of Port Fairy, is capable of attracting vicarious liability. Nevertheless, the Diocese is not vicariously liable for the sexual assaults that Coffey inflicted upon DP because those torts occurred in circumstances where Coffey opportunistically took advantage of his role to commit them. The torts were therefore not committed in the course of Coffey's performance of his role as assistant parish priest. Accordingly, I agree with the orders proposed by the plurality.

Law and Religion Australia reports on the decision.

[An earlier version of this post incorrectly attributed some quotes from Justice Gleason to Justice Jaggot.]

Court Asks Parties for More Information on Whether Vaccine Mandate Was Generally Applicable

In Rodriguez v. Santa Clara Valley Transportation Authority, (ND CA, Nov. 12, 2024), a California federal district court refused to dismiss a suit brought by employees of a public transportation provider who were denied religious exemptions from their employer's Covid vaccine mandate. The court ordered the parties to submit supplemental briefs on whether or not the vaccine mandate exemption process was generally applicable in order to determine whether to apply strict scrutiny in evaluating plaintiffs' Free Exercise claim. The court said in part:

Although the VTA’s exemption review process did not involve the entirely unfettered discretion that the Supreme Court rejected in Fulton, a reasonable factfinder could conclude that this process contained enough individualized discretion to “permit discriminatory treatment of religion or religiously motivated conduct.” ...

Conversely, a reasonable factfinder could conclude that the exemption process was “tied directly to limited, particularized, business-related, objective criteria” such that it was generally applicable.....  Unlike Fulton, no individual here exercised “sole discretion.”....  Instead, the committee rendered decisions as a group based on set criteria.... A reasonable jury could find that the VTA committee exercised a degree of discretion that preserved the policy’s general applicability.

7th Circuit Vacates Injunction Against Indiana's Ban on Gender Transition Treatment for Minors

In K.C. v. Individual Members of the Medical Licensing Board of Indiana, (7th Cir., Nov. 13, 2024), the U.S. 7th Circuit Court of Appeals in a 2-1 decision reversed a federal district court's preliminary injunction against Indiana's ban on non-surgical gender transition procedures for minors. Rejecting the district court's conclusion that the treatment ban violates the Equal Protection Clause, the 7th Circuit majority held that the law need only meet the rational basis test. The court said in part:

The only way SEA 480 implicates sex at all is that the medical treatment at issue is sex specific—it denies each sex access to the other’s hormones. A physician could, if not for SEA 480, prescribe two medical treatments: one exclusively to girls with gender dysphoria—testosterone; and one exclusively to boys with gender dysphoria—estrogen.....

When a state regulates a “medical procedure that only one sex can undergo,” the courts apply rational-basis review “unless the regulation is a ‘mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.’”...

Bostock does not apply to every use of the word “sex” in American statutory and constitutional law. The case decided an interpretive question about Title VII’s reach. Title VII does not apply here, so neither does Bostock.

The majority also rejected the claim that the Indiana law violates the Due Process right of parents to make medical decisions for their children because it does not carve out an exception for treatment when a parent consents. The majority said in part:

SEA 480 is supported by a rational basis.... [P]rotecting minor children from being subjected to a novel and uncertain medical treatment is a legitimate end. And if Indiana had included a parental-consent provision, the exception would swallow the rule...

Finally the majority rejected the claim that the statute's ban on aiding and abetting violates physicians' free speech rights, saying in part:

... [W]hen the physicians and the state do not see eye-to-eye on treatment—and when the state validly regulates that treatment—the state must be able to preclude its physicians from using their authority to help the state’s citizens access the treatment. Otherwise, the physicians would hold a veto over the state’s power to protect its citizens. SEA 480’s secondary liability provision covers unprotected speech, and it reasonably relates to its primary liability provision, which itself is a reasonable regulation.

Judge Jackson-Akiwumi filed a dissenting opinion focusing primarily on the ban on Indiana physicians assisting minors in obtaining treatment in other states, saying in part:

The majority opinion holds that, insofar as the aiding and abetting provision regulates speech, it reaches only unprotected speech—either speech integral to unlawful conduct or speech incidental to regulated conduct. Our law, however, defies both conclusions....

So, Indiana can realize its objectives by enacting a law and punishing those who violate it; it cannot accomplish its objectives by punishing speech that somehow relates to the purpose of a state law, yet amounts to no criminal or civil primary violation.

ADF issued a press release announcing the decision.

Louisiana Federal Court Enjoins Enforcement of Law Requiring 10 Commandments in All Classrooms

In Roake v. Brumley, (MD LA, Nov. 12, 2024), a Louisiana federal district court in a 177-page opinion held that Louisiana House Bill 71 that requires a copy of the Ten Commandments to be posted in every public-school classroom in the state is facially unconstitutional and unconstitutional in all applications. The court, granting a preliminary injunction, said in part:

... [M]any Louisianians (like the Plaintiffs) (a) do not subscribe to the specific version of the Ten Commandments listed in the Act; (b) are not religious and do not agree with any version of the Decalogue; or (c) believe in other religions (such as Hinduism, Buddhism, and Taoism) that “generally do not consider the commandments to be part of their belief system.”... The Complaint also highlights that H.B. 71 requires a version of the Ten Commandments that many Protestants use and that this is inconsistent with versions recognized by Jews or Catholics.... H.B. 71 fails to select both historical documents generally and versions of the Ten Commandments in particular “without regard for belief,”..., and is thus discriminatory as a matter of law....

Plaintiffs have shown a real and substantial likelihood of coercion,.., particularly given the fact that, in the school context, coercion has been found where “the school has in every practical sense compelled attendance and participation in a religious exercise”...

In sum, Plaintiffs have sufficiently alleged that the Act violates the Establishment Clause because it does not fit within and is not consistent with a broader tradition in place at the time of the Founding or incorporation. Moreover, even if there were a broader tradition in play, the practice mandated by the Act would be inconsistent with that tradition because it is discriminatory and coercive....

... [T]he Court finds that Plaintiffs have established a viable Free Exercise claim. First, they have sufficiently alleged that the Act burdens their “sincere religious practice[s]” and beliefs.... Specifically, the Act is at odds with ... (a) Unitarian Universalist, agnostic, and atheist views about proselytizing and the Ten Commandments generally; (b) Reform Jewish tradition as to the particular content of this specific version of the Decalogue and the need to instruct about it in the context of that tradition; and (c) Presbyterian teachings on the display of the Ten Commandments by secular authorities.... 

Additionally, there is another sincerely held religious practice that the Act burdens. For over fifty years, the Supreme Court has recognized “traditional concepts of parental control over the religious upbringing and education of their minor children. . . .”

The Court also easily rejects AG Defendants’ argument that the Act is neutral. “Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature.”...

Louisiana ACLU issued a press release announcing the decision.

Archbishop of Canterbury Resigns, Accepting Responsibility for Coverup of Sexual Abuse of Young Men

In Britain yesterday the Archbishop of Canterbury announced his resignation, taking responsibility for an inadequate response to reports of extreme sexual abuse of over 100 boys and young men at Christian camps and public schools for decades by a barrister who was a lay preacher in the Anglican Church. A Report on abuser John Smyth was commissioned by the Church of England and authored by former social services director Keith Makin. The Report (full text) was published last month. As described by the BBC:

The Makin report described [Smyth's] "clearly sexually motivated, sadistic regime" of beatings during the 1970s and 1980s.

He singled out boys attending Christian camps and in sessions at leading public schools, including Winchester College, before taking them to his home and beating them with a cane in his shed.

Some of the victims had to wear adult nappies because of the bleeding they suffered.

Smyth was later able to travel to Zimbabwe and South Africa, where he is alleged to have continued his abuse.

He died in 2018.

A Chanel 4 News report summarizes the situation. 

In a Statement (full text) published yesterday, the Archbishop, Most Rev. Justin Welby, said in part:

Having sought the gracious permission of His Majesty The King, I have decided to resign as Archbishop of Canterbury.

The Makin Review has exposed the long-maintained conspiracy of silence about the heinous abuses of John Smyth.

When I was informed in 2013 and told that police had been notified, I believed wrongly that an appropriate resolution would follow. 

It is very clear that I must take personal and institutional responsibility for the long and retraumatising period between 2013 and 2024. 

IT Specialist Awarded $12.69M For Denied Religious Exemption from Vaccine Mandate

 A Michigan federal district court jury last week awarded damages of $12,690,000 to an IT specialist who was fired from her position after she refused for religious reasons to comply with her employer's Covid vaccine mandate. In Domski v. Blue Cross Blue Shield of Michigan, (ED MI, Nov. 8, 2024) (Jury Form), plaintiff contended that her Catholic religious beliefs precluded her from complying because of the use of fetal cells in the development of the Covid vaccines. Plaintiff had been employed by Blue Cross Blue Shield for 38 years. Law Enforcement Today and WWJ Radio report on the jury verdict.

Certiorari Filed with Supreme Court in Challenge to Colorado Conversion Therapy Ban

 A petition for certiorari (full text) was filed with the U.S. Supreme Court last Friday in Chiles v. Salazar, (Sup. Ct., cert. filed 11/8/2024). In the case, 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. (See prior posting.) ADF issued a press release announcing the filling of the petition for review.

Recent Articles of Interest

From SSRN:

• Hershey H. Friedman, The Desire to Be Liked: Talmudic Insights on Truth-Seeking in a Polarized World, (September 22, 2024).
• Anthony Ikechukwu Ugwu, Chikaodili Juliet Ugwoke & Uchenna Virginus Eze, Ethnicity and Religion as the Breeding Grounds for Insecurity in Nigeria, (September 20, 2024).
• Blaine Hutchison, Title VII's Religious Liberty Rules in Carter, (Texas Review of Law & Politics, Volume 28, No. 2. Pp. 714-39 (2024).
• Mohammad Fadel, Beyond Liberal Zionism: International Law, Political Liberalism and the Possibility of a Just Zionism, (Forthcoming, Transnational Law and Contemporary Problems).
• Vincent Phillip Muñoz, James Madison's Political Science of Religious Liberty, (July 01, 2021).
• Matteo Winkler, Matteo & Ilias Bantekas, The Re-Criminalization of Sexual Minorities as a Testing Ground for International Human Rights Law in Africa, (July 31, 2024).
• Sandeep Bhupatiraju, Daniel Chen, Shareen Joshi & Peter Neis, Legal Disparities and Judicial Mitigation: Muslim Petitioners in an Indian High Court, (September 13, 2024).
• Greer Donley, Regulatory Turbulence in Post-Dobbs America, (in Regulation In A Turbulent Era (Daniel Walters & Cary Coglianese eds., Edward Elgar, forthcoming 2024).

From SmartCILP:

• Stephanie Hennette Vauchez, Can Religious Schools Discriminate on the Basis of Religion?: A Comparative Law Approach, 39 Connecticut Journal of International Law 80-126 (2023).

Texas Top Court Gives New Trial to Death Row Inmate Because of Trial Judge's Antisemitism

 In Ex Parte Halprin, (TX Ct. Crim. App., Nov. 6, 2024), the Texas Court of Criminal Appeals in a 6-3 decision granted a new trial to one of the so-called Texas Seven prison escapees who had been sentenced to death for murdering a police officer during the robbery of a sporting goods store shortly after their escape. The court concluded that the trial judge, Vickers Cunningham, was biased against Halprin because Halprin is Jewish.  The court said in part:

The evidence adduced in these habeas proceedings concerning Halprin’s judicial bias claim consists primarily of anti-Semitic statements attributed to Cunningham that, according to the witnesses, he made in generally private or semi-private settings rather than from the bench in open court or in chambers....

The uncontradicted evidence supports a finding that Cunningham formed an opinion about Halprin that derived from an extrajudicial factor—Cunningham’s poisonous anti-Semitism. Cunningham’s references to Halprin are not to “the fucking [murderer]” or “the filthy [criminal]” or “the [murderer] Halprin,” which might be fairly said to derive from the evidence presented at Halprin’s capital murder trial. Rather, Cunningham’s derogatory references to Halprin are expressly tied to Halprin’s Jewish identity.

Judge Richardson, joined by Judges Newell and Walker filed a concurring opinion, saying in part:

This is not a case in which the action of a trial judge may just “look bad.” This is not a case in which there is merely the “appearance of impropriety.” This is a case where a person’s lifelong hatred and prejudice against Jews made him unfit to preside over this case. And that toxic viewpoint runs counter to our concept of the Rule of Law because “[o]ur law punishes people for what they do, not who they are.”

Thus, no precedent, rule, technicality, or excuse can justify allowing such a demonstrably biased person to constitutionally stand in judgment over a member of a class of people the judge espouses to hate. It violates our fundamental sense of fair play and the Supreme Court’s motto “Equal Justice Under Law” beneath which our precedent arises.

Judge Yeary filed a concurring opinion saying that the majority reached the correct result but used the wrong standard to reach it.  He said in part: 

... [T]he question is “not whether the judge is actually, subjectively biased, but whether the average judge in [the challenged judge’s] position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”

Presiding Judge Keller, joined by Judges Keel and Slaughter filed a dissenting opinion saying in part:

The Court misunderstands the law regarding disqualification of a judge for bias.  It grants Applicant relief on the basis of the trial judge’s personal views and out-of-court comments about Applicant’s religion.  But under Supreme Court precedent, in order for a judge who holds derogatory views about a defendant’s religion to be disqualified, there must be a showing that the judge’s conduct in the criminal proceedings was influenced by his derogatory views.  What a judge does can violate the Constitution.  What he thinks cannot.  Nothing in the record on habeas or at trial shows, or even suggests, that the trial judge’s views influenced how he conducted the criminal proceedings in this case.

Texas Public Radio and AP report on the decision. [Thanks to Thomas Rutledge for the lead.]

Oklahoma Launches New Office of Faith Based Initiatives

Oklahoma Governor Kevin Stitt yesterday announced the launch of the state's new Office of Faith Based Initiatives. According to the Office's website, the Office serves as a "connection point for faith-based and community organizations wishing to partner with state government agencies across Oklahoma."

Firefighters Can Move Ahead With Title VII Claims Over Forced Leave to Accommodate Religious Objections to Covid Vaccine

In Bingham v. City of San Jose, (CA App., Oct. 30, 2024), a California state appeals court held that five San Jose firefighters who were placed on unpaid leave when they asserted religious objections to the Covid vaccine may move ahead with their claims under Title VII and the California Fair Employment and Housing Act.  Reversing the trial court's dismissal of the suit, the appeals court held in part:

Plaintiffs have sufficiently pleaded that the extended and involuntary unpaid leave allegedly imposed on them was not a reasonable accommodation.  By not requiring plaintiffs to take the COVID-19 vaccines mandated by the County vaccination order, the City eliminated the conflict between the order and plaintiffs’ religious beliefs concerning the COVID-19 vaccines.  However, the alleged unpaid leave did not reasonably preserve plaintiffs’ employment status....

... [T]he amended complaint alleges that the City Fire Department was facing a severe staffing shortage and that a County public health order allowed employers facing such shortages to seek a waiver of the vaccination requirement.  Additionally, plaintiffs alleged that they could have been transferred to positions answering 911 calls, which presumably is not a Higher-Risk Setting and therefore would not have required vaccination under the County vaccination order.  If these allegations are accepted as true, as they must be at the demurrer stage... that would have allowed plaintiffs to work without a vaccination.  Thus, far from establishing the City’s undue hardship defense, the face of the complaint shows that the City could have reasonably accommodated plaintiffs’ beliefs without undue hardship. 

CBN reports on the decision.

3 States' Voters Remove Unenforceable Anti-Gay Marriage Provisions

On Tuesday, voters in three states approved measures recognizing same-sex marriage and eliminating now-unenforceable provisions to the contrary in their state constitutions. 

In California, voters declared marriage to be a fundamental right and repealed a state constitutional provision that defined marriage as a union between one man and one woman. The vote was 61.04% in favor and 38.96% opposed.

In Colorado, voters removed a constitutional provision that only permitted state recognition of marriages between one man and one woman. The vote was 63.88% in favor and 36.12% opposed.

In Hawaii, voters removed a constitutional provision that allowed the legislature to reserve marriage to opposite-sex couples. The vote was 55.99% in favor and 44.01% opposed.

Ballotpedia has additional details.

School Choice and Funding for Students at Non-Public Schools Lose In 3 States

School choice and state funding for students at non-public schools was unpopular among voters on Tuesday.

Colorado voters defeated a proposed constitutional amendment that would have guaranteed every K-12 child the right to school choice and have guaranteed parents the right to direct the education of their children. The vote was 48.03% in favor and 51.97% opposed.

Kentucky voters defeated a proposal that would have allowed the state legislature to provide state funding for private and parochial schools. The vote was 35.24% in favor and 64.76% opposed.

In Nebraska, voters voted to repeal a statute that provided for funding of scholarships for students at private and parochial elementary and secondary schools. The vote was 57.06% in favor of repeal; 42.94% opposed to repeal.

Ballotpedia has additional information and links to final ballot results.

Exit Polling Shows Presidential Vote by Religion of Voter

Exit polling by Edison Research, published by the Washington Post, shows the percentage of voters of various religious faiths who voted for each of the two main presidential candidates in the 2024 November elections:

Catholic: 58% Trump; 40% Harris.

Protestant and Other Christian: 63% Trump; 36% Harris.

Jewish: 22% Trump; 78% Harris.

Other Religion: 34% Trump; 59% Harris.

No Religion: 26% Trump; 71% Harris.

White Evangelical Born-Again Christians: 82% Trump; 17% Harris.

Abortion Rights Proposals Approved by Voters In 7 of 10 States

In ten states yesterday, voters were asked to approve ballot measures that would guarantee abortion rights.  Voters approved proposals guaranteeing abortion rights in 7 of the 10 states.  Here are the results of those votes as of Wednesday morning. Ballotpedia has details of each proposal and updated vote figures:

• Arizona- 61.74% in favor; 38.26% opposed (50% of precincts reporting)
  
  
• Colorado- 61.48% in favor; 38.52% opposed (73% of precincts reporting)
  
  
• Florida- 57.13% in favor; 42.87% opposed (60% vote needed to approve the constitutional amendment) (93% of precincts reporting)
  
  
• Maryland- 74.11% in favor; 25.89% opposed (76% of precincts reporting)
  
  
• Missouri- 51.85% in favor; 48.15% opposed (95%+ of precincts reporting)
  
  
• Montana- 57.44% in favor; 42.56% opposed (87% of precincts reporting)
  
  
• Nebraska- pro-abortion rights proposal: in favor 48.66%; opposed 51.34%.  Abortion ban after first trimester proposal: in favor 55.32%; opposed 44.68% (99% of precincts reporting)
  
  
• Nevada- 63.33% in favor; 36.67% opposed (84% of precincts reporting)
  
  
• New York- 61.51% in favor; 38.49% opposed (85% of precincts reporting)
  
  
• South Dakota- 40.28% in favor; 59.72% opposed (91% of precincts reporting)

Eviction Did Not Violate Plaintiff's Free Exercise Rights

In Wexler v. City of San Diego, California, (SD CA, Nov. 4, 2024), a California federal district court rejected plaintiff's claim that his free exercise rights were violated when he was evicted from rental property he had occupied for a few days. The court said in part:

Plaintiff alleges that Defendant Dup-A-Key harmed him by changing the rental unit’s door locks on the Sabbath....  Plaintiff alleges harm from Defendant Rough Rider Real Estate because he “had to record” Defendant’s employee drilling of a “No Trespass” sign onto the property on the Sabbath.... Plaintiff further alleges harm from Defendant Police Officers because the alleged unlawful eviction occurred on the Sabbath....  However, these actions are not violations under the Free Exercise Clause.  Plaintiff has not alleged that Defendants Dup-A-Key and Rough Rider Real Estate were government entities.  Nor does Plaintiff sufficiently allege that any government policy was not neutral or not generally applicable.  Accordingly, the Court DISMISSES Plaintiff’s First Amendment § 1983 claims against all Defendants with leave to amend.

The court also rejected a variety of other challenges to the eviction alleged by plaintiff, including a claim that police officers discriminated against him because he mentioned to them that he was an Orthodox Jewish person.

6th Circuit Grants En Banc Rehearing in Challenge to School's Ban on Misgendering Fellow Students

In Parents Defending Education v. Olentangy Local School District, (6th Cir., Nov. 1, 2024), the U.S. 6th Circuit Court of Appeals sitting en banc vacated a decision issued in July by a 3-judge panel (see prior posting) and granted a rehearing en banc in a free speech challenge to a school district's anti-bullying and anti-harassment policies. At issue are policies that prohibit students from using pronouns that are inconsistent with another student’s gender identity if the use amounts to harassment. In a 2-1 decision in July, the panel rejected the challenge saying in part that "[T]he District’s position that students may communicate their belief that sex is immutable through means other than the use of nonpreferred pronouns, indicate that the District is not attempting to prohibit any viewpoints."

George Mason Law Students Sue Claiming "No-Contact" Order Violates Their Free Speech and Free Exercise Rights

Suit was filed last week in a Virginia federal district court by two Christian female law students at George Mason University contending that a "no-contact" order issued against them by the University's DEI Office violates their free speech and free exercise rights. The complaint (full text) in Ceranksoky v. Washington, (ED VA, filed 11/1,2024), relates that plaintiffs were ordered to avoid contact, including through social media, with a classmate (identified in the complaint only as Mr. Doe) who is the Law School's representative on the Graduate and Professional Studies Assembly. Through an online chat platform, Mr. Doe proposed having hygiene products available in men's rest rooms as well as in women's in order to accommodate transgender men. According to the complaint:

5. [Plaintiff posted] ... her concern that if GMU adopted a policy “allow[ing] biological females into male restrooms to access period products as ‘trans men,’” then that would mean “female bathrooms will welcome male occupants.” She asked her classmate to “recognize the concerns of biological female students” and how they would feel “considerably uncomfortable if there are males using private women’s spaces on campus.” She noted that “[w]omen have a right to feel safe in spaces where they disrobe.” ...

7. Their classmate, who had claimed to be their representative to the student government and initially promised to “advocate for all” students and viewpoints, responded by mocking their concerns and labeling their views as bigoted for questioning others’ gender identity. 

8. Two weeks later ... [plaintiffs] received no-contact orders from GMU’s Office of Diversity, Equity, & Inclusion (“DEI Office”), prohibiting them from having any contact with their classmate....

152....  Defendants have singled out Plaintiffs’ expression and prevented them from engaging in religious expression with Mr. Doe.

153. Defendants’ no-contact orders have also chilled Plaintiffs from engaging in religious expression with other students at the Law School or the rest of GMU....

175.  Plaintiffs are motivated by their sincerely held religious beliefs to speak on-campus on many topics from a Christian worldview. Plaintiffs believe their on-campus speech is a way to share the Gospel of Jesus Christ with non-Christians and a way to disciple and equip other Christians on campus to grow and mature in their faith.

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

Homeless Shelter Can Limit Hiring to Coreligionists

In Union Gospel Mission of Yakima, Wash. v. Ferguson, (ED WA, Nov. 1, 2024), a Washington federal district court granted a preliminary injunction to a religious organization that operates a homeless shelter and thrift stores. The injunction bars the state's attorney general from enforcing the Washington Law Against Discrimination (WLAD) against plaintiff for limiting all its hiring to coreligionists who adhere to the organization's religious tenets and behavior requirements. In 2021 the Washington Supreme Court interpreted the exemption in the WLAD for non-profit religious organizations to apply only to hiring for ministerial positions. The federal district court here held that the WLAD is subject to strict scrutiny since it is not a neutral, generally applicable law. It treats religious organizations differently than secular employers who are exempt if they have fewer than eight employees. According to the court, a less restrictive way of advancing the state's interest is to exempt all employees of nonprofit religious organizations as Washington had done before the state Supreme Court decision narrowing the interpretation of the WLAD exemption. An ADF press release has additional background.

Recent Articles of Interest

From SSRN:

• Ruth Colker, Christian Domination, (Ohio State Legal Studies Research Paper No. 885 (2024)),
• Kathleen Brady, Law, Religion, and Education, (in Faith in Law, Law in Faith: Reflecting and Building on the Work of John Witte, Jr. (Rafael Domingo et al. eds., 2024) (forthcoming)).
• Richard Kenneth Sherwin, Constitutional Over-Belief: Affective Intensity as a Function of Law's Legitimation, (September 18, 2024).
• Jeffrey R. Baker, Christian Realism and the Sins of Mass Incarceration, (Georgia Criminal Law Review (forthcoming 2025)).
• Richard Kenneth Sherwin, The Challenge of Legal Chorology: Rethinking Political Theology, (September 18, 2024).
• Nomi Maya Stolzenberg, The Protestant (Dis)Establishment: Its Overlooked Role in the Ongoing Battles Over Religious Liberty (A Prospectus), (August 26, 2024).
• Nomi Maya Stolzenberg, The Legal Imagination and the Protestant (Dis) Establishment, (September 10, 2024).
• Dr. Allah Ditta Qadri, Hafiz Muhammad Usman & Dr. Irshad Hussain, Islamic Distinctiveness and Prohibition of Imitation of Non-Muslims: A Rational Review, (September 22, 2024).

From SmartCILP:

• John Fee, Harmonizing Freedom of Speech and Free Exercise of Religion, 32 William & Mary Bill of Rights Journal 677-720 (2024).
• Allan Walker Vestal, Tax-Funded Education Savings Account Payments to Religious Schools Violate State Constitution Compulsion Guarantees: The Iowa Example, 32 William & Mary Bill of Rights Journal 771-844 (2024).

9th Circuit Reinstates Claim of Christian-Israelite Inmate Who Was Refused Passover Diet

In Fuqua v. Raak, (9th Cir., Nov. 1, 2024), the U.S. 9th Circuit Court of Appeals partially reversed an Arizona federal district court's dismissal of a suit by Michael Fuqua, a Christian-Israelite (Christian Identity) state prison inmate who was refused Passover dietary meals. The prison chaplain and other prison officials denied Fuqua's request for a Kosher for Passover diet on the ground that Fuqua's belief that Christian-Israelites were descended from the Tribes of Israel was wrong.  Officials said that supporting materials furnished by Fuqua suggested that he only needed to observe Passover with a memorial service using flatbread and grape juice. In reversing the trial court's grant of summary judgment to defendants on Fuqua's free exercise and equal protection claims, the court said in part:

... [W]e conclude that a reasonable trier of fact could find that Fuqua was denied his requested dietary accommodation, not based on his failure to follow a neutral and valid procedural rule for requesting accommodations, but rather based on [Chaplain] Lind’s own theological assessment of the correctness and internal doctrinal consistency of Fuqua’s belief system.

The court however affirmed the trial court's grant of summary judgment for defendants on Fuqua's RLUIPA claim, saying in part:

that the Spending Clause does not allow Congress to impose individual damages liability on state or local officials who are not themselves the recipients of federal funds.

In Fuqua v. Ryan, (9th Cir., Nov. 1, 2024) (unpublished), the 9th Circuit upheld the dismissal of Fuqua's free exercise claims against two correctional officers because there was no evidence that they were personally involved in the challenged actions. It upheld dismissal of claims against the kitchen manager on qualified immunity grounds. It also upheld the trial court's refusal to allow Fuqua to read from his Bible on the witness stand, saying in part:

The district court did not abuse its discretion in holding that, while Fuqua could explain the sincerity of his religious beliefs by reference to relevant scriptural passages, he did not need to have a physical Bible with him on the stand or to read the relevant passages verbatim.

Ballot Measures to Watch in Tuesday's Elections

Tuesday's elections around the country will feature an unusually large number of ballot measures of particular interest to Religion Clause readers. According to Ballotpedia, there will be eleven proposals on abortion rights:

• Arizona Proposition 139
• Colorado Amendment 79
• Florida Amendment 4
• Maryland Question 1
• Missouri Amendment 3
• Montana CI-128
• Nebraska Initiative 434 and Initiative 439 (competing proposals)
• Nevada Question 6
• New York Proposal 1 (also includes sexual orientation, gender identity and other issues)
• South Dakota Constitutional Amendment G

Voters in three states will cast ballots on repeal of now unenforceable bans on same-sex marriage: California, Colorado, Hawaii. The California proposal would also affirmatively guarantee the right to marry.

Colorado proposal would guarantee the right to school choice and parental control of their children's education. A Kentucky proposal would allow state funding for students in non-public schools. A Nebraska referendum asks voters whether to repeal a state law providing for an educational scholarship program for students in non-public schools.

American United's magazine Church & State discusses Tuesday ballot measures relating to church-state separation that will be presented to voters in eleven states.

Hospital Employee Who Refused Covid Nasal Swab Testing Is Entitled to Unemployment Benefits

 In St. Luke's University Hospital v. Unemployment Compensation Board of Review, (PA Commonw. Court, Nov. 1, 2024), a Pennsylvania state appellate court upheld a decision by the Pennsylvania Unemployment Compensation Board of Review that a former employee of plaintiff hospital was entitled to unemployment benefits because her objections to Covid testing, which led to her firing, were religious. The hospital required all its employees to either obtain a Covid vaccination or, if they were granted a religious exemption, to undergo weekly nasal swab Covid testing. Employee Christine Puello objected to swab testing, contending in part:

Inserting a nasal swab with contaminants into my body violates my conscience and my sincerely held religious beliefs as I have previously described in my religious exemptions.  I am willing to submit my saliva under observation for weekly COVID[-19] testing which eliminates any invasiveness and preserves my dignity of one less object/contaminant entering my body.

The court concluded:

While Claimant did cite safety concerns as a secondary reason for refusing nasal swab testing, the record makes clear that her primary objection was religious and not secular in nature.  The Board credited Claimant’s testimony that this method of testing was prohibited by the tenets of her religion and determined she had good cause to refuse it.

6th Circuit Hears Oral Arguments in Transgender Bathroom Access Case

On Tuesday, the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Doe No. 1 v. Bethel Local Board of Education, (6th Cir., Docket No. 23-3740). In the case, an Ohio federal district court (see prior posting) dismissed a wide-ranging group of challenges-- including due process, equal protection and free exercise challenges-- to a school board policy allowing students to use school bathrooms corresponding to their gender identity. Ohio Capital Journal reports on the oral arguments.

7th Circuit Hears Oral Arguments Challenging Schol's Derecognition of "Students For Life" Club

On Tuesday, the U.S. 7th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in E. D. v. Noblesville School District, (7th Cir., Docket No. 24-1698), In the case (E.D. v. Noblesville School District, SD IN, March 15, 2024), an Indiana federal district court dismissed various First Amendment and other claims against a school district and district officials who derecognized a high school Students For Life Club on the ground that it was not entirely run by students.  The derecognition followed lengthy discussions over the club's advertising flyers. ADF issued a press release announcing the oral arguments.

2nd Circuit: FBI Agents Had Qualified Immunity From RFRA Damages When Muslim Plaintiffs' Religious Objections Were Undisclosed

In Tanvir v. Tanzin, (2d Cir., Oct. 29, 2024), the U.S. 2nd Circuit Court of Appeals dismissed on qualified immunity grounds a case in which the U.S. Supreme Court in 2020 held (see prior posting) that the Religious Freedom Restoration Act permits suits for damages against federal officials. The 2nd Circuit said in part:

... [E]ach of the three Appellants in this case encountered various FBI agents who asked him to serve as an informant in Muslim communities, and each was illegitimately placed or retained on the No Fly List when he declined. Each Appellant possessed a belief, allegedly shared by some other Muslims, that precluded him from serving as an informant in a Muslim community. But no Appellant ever disclosed that view to any agent. Instead, each stated that he: (1) refused to work as an informant because being an informant would endanger himself or his family, or (2) would agree to work as an informant under the right circumstances....

Appellees had no reason to know that their actions encroached on the Appellants’ religious beliefs. As noted above, “[e]ven when we find a right clearly established,” officials are still immune from damages liability if “reasonable persons in their position would not have understood that their conduct was within the scope of the established prohibition.”...

We recognize the Appellants’ view that Muslims in America have been unfairly targeted. But we disagree with their conclusion that a Christian or Jewish plaintiff in like circumstances would have greater success in a RFRA damages suit. No doubt, many would find any effort to recruit informants to infiltrate religious congregations, including Muslim, as well as Christian or Jewish congregations, offensive. We have no reason to assume, however, that a reasonable government official would know that a Christian or Jew could not work with government agents to expose terrorists in her religious community without violating her religious norms. It is far from obvious – indeed, it cannot be the case – that an adherent of either of those (or any) religions could hold an undisclosed religious belief, of which an official had no other reason to know, and then successfully sue the official for monetary damages for pressuring them to act in tension with that undisclosed belief.

Nothing in this ruling should be construed as approving the conduct alleged in the complaint. At its core, the complaint alleges that government agents pressured individuals to serve as informants – at risk to their own and their families’ safety – and to report on the activities of their neighbors and community members by falsely and in bad faith accusing them of terrorism to deny them significant liberties under a program designed to protect lives from genuine terrorists. That is improper behavior, regardless of whether the agents knew of the Appellants’ particular religious beliefs. But in this case, the Appellants’ only remaining legal claim is that the Appellee agents are personally liable in damages for violating their free exercise of religion under RFRA. On the facts alleged, for the reasons discussed above, that claim fails.

6th Circuit Hears Oral Arguments on DOE's Interpretation of Title IX to Include Gender Identity Discrimination

Yesterday the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in State of Tennessee v. Cardona. In the case, a Kentucky federal district court barred enforcement against Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia of the Department of Education's rules that interpret Title IX's ban on sex discrimination to include discrimination against transgender students and faculty by institutions receiving federal financial assistance. Bloomberg Law reports on the oral arguments.

President Biden Speaks At White House Diwali Reception

Today is Diwali, or more precisely, the high point of the 5-day Diwali celebration. The holiday is celebrated in various ways by Hindus, Sikhs, Jains and Buddhists. On Monday evening, President Biden hosted a Diwali celebration at the White House. In his remarks at the reception (full text), the President said in part:

In late November 2016, a dark cloud formed from hate and hostility toward immigrants, including South Asian Americans, that we hear once again in 2024.  It was then that Jill and I hosted the first Diwali reception, and it was at the vice president’s residence, an Irish Catholic president — vice president, at the time — opening our home for a holiday celebration by Hindus, Bi- — Buddhists, Jains, Sikhs, and more.  How America — how America can remind us all of our power to be the light, all of us. 

Now, as president, I’ve been honored to host the biggest Diwali receptions ever at the White House.  (Applause.)

Volunteer Prison Minister's Challenge to Requirements for Addressing LGBTQ Inmates Is Rejected

In Kuenzi v. Reese, (D OR, Oct. 28, 2024), an Oregon federal district court rejected 1st Amendment challenges to an Oregon prison system rule requiring volunteers in prison facilities to sign an acknowledgement statement that calls for volunteers to use appropriate gender pronouns when addressing transgender, intersex and non-binary adults in custody.  Plaintiff, a former volunteer Christian minister in a women's correctional facility, contends that this requirement conflicts with her free exercise and free speech rights. She is no longer allowed to minister at the prison facility without signing the statement which conflicts with her religious belief that gender is an immutable characteristic determined by biology, and that homosexual conduct is sinful. The court concluded that the prison policy is neutral and generally applicable and that:

... the policy is rationally related to ODOC’s legitimate interest in “promot[ing] a respectful environment that reinforces prosocial norms for ODOC’s AICs.” 

It also concluded that:

Because Plaintiff was speaking as an employee and not as a private citizen, her speech falls outside the protections of the First Amendment.

7th Circuit Hears Arguments on Standing to Challenge Indiana Abortion Law

Last week (Oct. 24) the U.S. 7th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Satanic Temple, Inc. v. Rokita, (Docket No. 23-3247). In the case, an Indiana federal district court dismissed The Satanic Temple's challenge under Indiana's Religious Freedom Restoration Act to the state's ban on abortions. The court dismissed for lack of standing, finding that TST failed to identify any of its members who are pregnant and has no clinic of its own operating in Indiana. (See prior posting.)

EEOC Suit Charging Failure to Accommodate Messianic Jewish Employee's Holidays Is Settled

The EEOC announced last week that Center One and Capital Management Services, two related companies, have settled a Title VII lawsuit that was brought by the EEOC and subsequently remanded for trial by the 3rd Circuit.  The suit charged failure to accommodate an employee's religious practices. The employee joined the case as a plaintiff.  According to the EEOC:

The EEOC’s lawsuit alleged that in October 2016, a Center One employee, an adherent of Messianic Judaism, requested a reasonable accommodation of his religious belief requiring abstaining from work on religious observance days.... Center One refused to grant the employee a schedule modification to observe religious holidays because he was unable to provide a certification from a religious leader or religious organization supporting his request. Instead, the company imposed disciplinary points against the employee..., even after being informed he was unable to obtain the requested certification because he was not a member of a congregation, thereby forcing the employee to resign....

The parties subsequently agreed to settle the case before trial, and on Oct. 24, the federal court approved the 18-month consent decree resolving the litigation. In addition to paying $60,000 to the employee, Center One and Capital Management Services are prohibited going forward from unlawfully denying reasonable accommodations for employees’ sincerely held religious beliefs, observances, and practices, and they are specifically barred from requiring that employees provide a certification from a religious leader, organization, or group as a general precondition for obtaining religious accommodation....

9th Circuit: California IDEA Rules Violate Free Exercise Clause

In Loffman v, California Department of Education, (9th Cir., Oct. 28, 2024), the U.S. 9th Circuit Court of Appeals reversed a California federal district court's dismissal of a suit by the parents of special needs children that challenges as a violation of the Free Exercise and Equal Protection Clauses a portion of California's rules implementing the federal Individuals With Disabilities Education Act (IDEA). In California, a private school may be certified as a NPS (non-public school offering special education programs) so long as the school is non-sectarian. When a local educational agency refers a child to an NPS, the state pays the child's full tuition there. However, religiously affiliated schools may not be certified as NPS's even if the curriculum offered to special needs children is secular. Here, plaintiffs wanted to send their children to Orthodox Jewish schools but obtain the benefits available from an NPS. The 9th Circuit said in part:

 ... [A]ny religiously affiliated school seeking to enter into an NPS contract in California must choose whether to maintain its religious affiliation or to serve as an NPS eligible for consideration ... in determining whether it may be in the best position to provide an IEP [individualized education program] for an individual child.  

Religious entities that are equally or better qualified than secular ones to provide special education and related services are disqualified solely because they are “owned, operated, controlled by, or formally affiliated with a religious group or sect, whatever might be the actual character of the education program or the primary purpose of the facility.”...

As we have previously recognized, a statutory scheme that requires a family to “forgo a sectarian education . . . in order to receive” special education benefits otherwise available in a private school setting imposes a “burden on their free exercise rights.”  ...

Parent Plaintiffs have plausibly alleged “that a government entity has burdened [their] sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable,’” so the focus “shifts to the defendant” to show that the challenged action survives strict scrutiny....

[E]ven if the State Appellee could demonstrate a compelling interest in neutrality here, it has failed to demonstrate that the nonsectarian requirement is narrowly tailored to serve that interest.  Thus, we conclude that the State Appellee fails to demonstrate that the nonsectarian requirement satisfies strict scrutiny.

National Catholic Register reports on the decision.

Recent Articles of Interest

From SSRN:

• Lin Fang, Zhige Yu & Yi Zhang, Does Confucianism Mitigate Court Conflicts?, (October 19, 2024).
• Ardiansyah, Enforcement of Prophetic Law in Settlement of Land Cases in Indonesia, (August 14, 2024).
• Carolyn Powers, The Next Evolution of Religious Accommodation in Employment, (59 Gonz. L. Rev. 543 (2024)).
• Michelle LeBaron & Maged Senbel, Conflicts With Religious or Worldview Dimensions: Why They Matter and How to Engage Them (July 01, 2022).
• Prithwish Ganguli, Justice or Silence: Navigating Sexual Violence Jurisprudence in Shariah Law from the Victim's Lens (October 24, 2024).
• Syed Tayyab Shere & Danish Ahmed Siddiqui, Shariah Compliance Issues in Tawarruq Financing for Short-Term Liquidity Management: A Response to Global Financial Market Trends in Islamic Banking, (September 16, 2024).
• Alfitri, Rijal Imanullah & Aulia Rachman, Unregistered Polygamy Validation: Isbat Nikah, Polygamy Permit, and Due Process of Law in Indonesian Religious Courts, (September 11, 2024).

From SmartCILP:

• Jeffrey A, Redding, Book Review. The Making of Colonial and Postcolonial Law by South Asian Muslims. Divorcing Traditions: Islamic Marriage Law and the Making of Indian Secularism, by Katherine Lemons; Everyday Islamic Law and the Making of Modern South Asia, by Elizabeth Lhost, 49 Law & Social Inquiry 611-617 (2024).
• Marcia L. MCCormick & Sachin S. Pandya, The Braidwood Exploit: On the RFRA Declaratory Judgment Class Action and Title VII Employer Liability, 58 University of Richmond Law Review 413-458 (2024).

President Apologizes for Indian Boarding School Policies; Over Half of Schools Had Religious Affiliations

Yesterday, President Biden speaking at Gila Crossing Community School in Laveen Village, Arizona, issued a formal apology on behalf of the United States for the Federal Indian Boarding School Policies implemented between 1819 and 1969 to implement a policy of cultural assimilation. (Full text of President's remarks.) Investigative reports issued by the Department of Interior in 2022 and 2024 said in part:

Initial investigation results show that approximately 50 percent of Federal Indian boarding schools may have received support or involvement from a religious institution or organization, including funding, infrastructure, and personnel. As the U.S. Senate has recognized, funds from the 1819 Civilization Fund “were apportioned among those societies and individuals—usually missionary organizations—that had been prominent in the effort to ‘civilize’ the Indians.” The Federal Government at times paid religious institutions and organizations on a per capita basis for Indian children to enter the Federal Indian boarding schools that these institutions and organizations groups operated.

The reports disclose that of the 408 Indian Boarding Schools, 210 had a religious affiliation.  (List of religiously affiliated boarding schools.) 132 were Protestant; 77 were Catholic; and 5 had other religious affiliations.

President Biden in his remarks yesterday described the experience of Native American children at these schools:

Children would arrive at schools.  Their clothes taken off.  Their hair that they were told was sacred was chopped off.  Their names literally erased and replaced by a number or an English name....

Another survivor described what it was like at the boarding school, and I quote, “When I would talk in my Tribal language, I would get hit.  I lost my tongue.  They beat me every day.”

Children abused — emotionally, physically, and sexually abused.  Forced into hard labor.  Some put up for adoption without the consent of their birth parents.  Some left for dead in unmarked graves. 

And for those who did return home, they were wounded in body and in spirit — trauma and shame passed down through generations. 

Vatican and China Extend Agreement on Appointment of Bishops

 The Vatican Press Office announced yesterday that the Vatican and China have agreed to extend for another four years their Provisional Agreement on the Appointment of Bishops. According to Vatican News:

This is the third renewal of the Agreement that, with the signing on 22 September, 2018, opened a historic chapter in relations between the Holy See and the People's Republic of China, and within the Church itself in China, allowing all bishops to be in full hierarchical communion with the Pope....

The Provisional Agreement ended decades of episcopal ordinations without papal consent, leading to a radically changed scenario in the last six years. Since then, about ten bishops have been appointed and consecrated, and Beijing officially recognized the public role of several previously unrecognized bishops.

Defendant Sentenced To 11 Years for Arson Attacks on Jehovah's Witness Kingdom Halls

Last Friday, a Washington federal district court sentenced 52-year-old Mikey Diamond Starrett to 11 years in prison followed by three years of supervised release for setting fire to three separate Jehovah's Witness Kingdom Halls and shooting into another Kingdom Hall. According to a Department of Justice press release, Starett pled guilty to four counts of violating the Church Arson Prevention Act and one count of using a firearm in relation to a crime of violence. The U.S. Attorney for the Western District of Washington said:

Starrett’s attacks irrevocably destroyed the sense of safety and peace that a house of worship is supposed to provide, and caused severe, permanent harm to the Jehovah’s Witness community in Washington. These were not crimes against buildings, but a series of attacks against a community and a faith.

Suit Challenges HIPPA Rules Barring Reporting of Out-of-State Abortions

As previously reported, in April of this year the Department of Health and Human Services issued new privacy rules under HIPPA designed to protect women (and those who assist them) who travel out of state for an abortion that is not legal in their state of residence. Yesterday, suit was filed in a Texas federal district court challenging the rules.  The complaint (full text) in Purl v. U.S. Department of Health and Human Services, (ND TX, filed 10/21/2024), alleges that the new privacy rules cover not only abortion, but also hormone and drug interventions for gender dysphoria and surgical procedures on an individual's reproductive system. The complaint alleges in part:

5. ... [T]he 2024 Rule purports to limit the circumstances when a HIPAA-covered entity can share information with government agencies, such as state child-welfare agencies and law enforcement agencies, both state and federal.  

6. HIPAA-covered entities that share information in contravention of HHS’s regulations incur criminal liability. 

7. Yet the HIPAA statute explicitly preserves government authority to investigate and to require disclosures concerning abuse. 

8. The 2024 Rule lacks statutory authority and is arbitrary and capricious. As such, the Court should vacate and set aside the Rule and preliminarily and permanently enjoin its enforcement....

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

Recent Articles and Videos of Interest

From SSRN:

• Akshat Agarwal, Supriyo and the Politics of Indian Family Law, (Indian Law Review (Forthcoming 2024)).
• Nimra Saghir Ahmed & Danish Ahmed Siddiqui, How Religiosity Complements the Effect of Promotional Strategies on Attitude and Purchase Intention of Customers towards Islamic Banks, (June 12, 2024).
• Mugambi Jouet, Abortion and American Exceptionalism, (Criminal Justice Law Review (2025), Forthcoming).
• Jordan Blair Woods, The New Sexual Deviancy, (113 Georgetown Law Journal (forthcoming 2025)).
• Ido Katri & Maayan Sudai, Intersex, Trans And The Irrationality Of Gender Affirming Care Bans, (134 Yale Law Journal (Forthcoming)).
• Richard F. Storrow, Gender Identity and Birth Certificates: The Surrogacy Nexus, (31 Michigan Journal of Gender & Law 125-72 (2024)).
• Mustafa Hammad Hussain & Danish Ahmed Siddiqui, Analyzing the Performance of Full-fledged Islamic Banks in Pakistan from Maqasid-ul-Shariah Perspective, (June 12, 2024).
• Jennifer Mosley, Nicole P. Marwell, Emily Claypool & Cameron Day, Impact, Equity and Philanthropic Foundations: Can Randomized Controlled Trials Help Account for The Democratic Deficit?, (August 30, 2024).
• Tendai Mukau, Accords of Dignity: The U.S. Constitution’s Article VI Treaty Power as a Mechanism to Bolster Human Rights Reform in the United States, (Cornell J.L. & Pub. Pol'y 175-289 (2023)).
• Tèmítọ́pẹ́ Bọ́ládalẹ́, Medico-Legal Issues in Compulsory Vaccinations and Quarantine, (August 31, 2023).

From Elsewhere:

• Columbia Law School Law, Rights & Religion Project, The Black Religious Liberty Curriculum, (2024) (12-part video series).

Court Enjoins Disciplining of Doctors Performing Certain Abortions in Tennessee

In Blackmon v. State of Tennessee, (TN Chanc. Ct., Oct. 17, 2024), a Tennessee state Chancery Court issued a temporary injunction barring the state from instituting disciplinary proceedings against plaintiff physicians for performing abortions in any of four specified medical situations. The court found that plaintiffs are likely to succeed in their challenges under the right to life, liberty or property and the equal protection clauses of the state constitution and in their vagueness challenge. The court said in part:

The question remains ... whether the Medical Necessity Exception, as currently written, serves a compelling state interest and is narrowly tailored to achieve that goal.  Given the range of interpretations proffered through the expert declarations ..., the Court finds that the issue of which conditions, and the timing of when they present and escalate to life-threatening conditions, constitute medical emergencies within the Medical Necessity Exception is demonstrably unclear, notwithstanding the “reasonable medical judgment’ of the physician standard set forth in the Exception.  This lack of clarity is evidenced by the confusion and lack of consensus within the Tennessee medical community on the circumstances requiring necessary health- and life-saving abortion care.  The evidence presented underscores how serious, difficult, and complex these issues are and raises significant questions as to whether the Medical Necessity Exception is sufficiently narrow to serve a compelling state interest....

Plaintiff Patients, as pregnant women, claim they are similarly situated to non-pregnant women who seek and are in need of emergency medical care.  Yet because of the criminal abortion statute, pregnant women are treated differently than non-pregnant women because their access to emergency medical care is restricted....

While the court enjoined disciplinary proceedings, it held that it lacked jurisdiction to enjoin enforcement of the state's criminal abortion statute. The Hill reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Lufthansa Fined $4M For Discrimination Against Jewish Passengers Flying On Pilgrimage To Hungary

On Oct. 7, a Consent Cease-and-Desist Order (full text) was issued by the U.S. Department of Transportation imposing civil penalties of $4 million on the air carrier Lufthansa for religious discrimination against Jewish passengers traveling to Budapest in 2022 to participate in the annual pilgrimage to the shrine of the so-called "miracle rabbi" Yeshaya Steiner (known as Rabbi Shayele). (Background). The airline received a credit for $2 million that it had already paid to passengers.

Some 128 identifiably Orthodox Jewish passengers were on a flight from New York, with a connection in Frankfurt to go on to Budapest. They were all barred from boarding the connecting flight in Frankfurt after some 60 of the passengers refused on the first leg of the flight to comply with the Covid-related requirement to wear masks on the flight and some also gathered in aisles and near exits. The DOT Consent Order said in part:

Lufthansa’s decision to affix an HPC [High Priority Comment] to the reservations of nearly every passenger traveling in a group to Budapest without limiting such affixation to those passengers who Lufthansa verified failed to follow crew instructions on LH 401, which did not comport with Lufthansa’s own boarding procedures, directly resulted in the inability of the passengers to travel on the flights they purchased. As such, Lufthansa took action that had an adverse effect on these passengers whose only affiliation with each other was that they were of the same religion and/or ethnicity. 

Lufthansa’s actions impacted passengers who did not engage in problematic conduct. OACP finds that, under the totality of the circumstances, Lufthansa’s treatment of the 128 Jewish passengers as a collective group, based on the alleged misconduct of a smaller number of those individuals, constitutes discrimination based on religion in violation of 49 U.S.C. § 40127.

DOT issued a press release announcing the Consent Order. AP reported on the Consent Order. [Thanks to Scott Mange for the lead.]

Florida Voters Sue Claiming Invalid Signatures on Abortion Rights Amendment Petitions

Suit was filed last week in a Florida state trial court against election supervisors in 12 Florida counties, as well as against the Secretary of State, other state officials and the sponsors of Amendment 4, a proposed abortion rights amendment that appears on the November Florida ballot. The complaint, brought by four Florida voters, alleges illegal and fraudulent petition signature-gathering efforts. Plaintiffs rely in large part on the Office of Election Crimes and Security's October 2024 Interim Report to Legislature on Initiative Petition Fraud Related to the Abortion Initiative.  The complaint (full text) in Hoffman v. Barton, (FL Cir. Ct., filed 10/16/2024), includes 348 pages of exhibits and alleges in part:

186, Because FPF submitted signatures collected on a pay-per-signature basis, the petition process was substantially infected by fraud and corruption. The substantial fraud and corruption that permeated the election process constitutes a basis for the Court to decertify and strike Amendment 4 from the 2024 General Election Ballot or—if this case is not resolved before the election—to enjoin the State Defendants from counting the votes or, if passed, to enjoin the State Defendants from giving effect to votes cast in favor of Amendment 4.   

187. Although the Secretary of State has issued a certificate of ballot placement, the certificate does not cure the fraud and corruption that infected the petition process. Moreover, if the 2024 General Election occurs prior to the resolution of this action, passage will similarly not cure the fraud and corruption that resulted in Amendment 4’s passage. 

In October, the ACLU responded to the Interim Report, saying in part:

The Secretary of State’s unprecedented and suspiciously-timed report makes nonsensical claims about a few hundred petitions, which would have had no effect on the campaign meeting the statutory requirements. Importantly, the state had an opportunity to file objections to petitions before April, but did not object to the inconsequential petitions for which it is now attempting to sanction and publicly chastise the campaign.

Liberty Counsel issued a press release last week announcing the filing of last week's lawsuit.

Suit Challenges Oklahoma Bible Education Mandate and Purchase of Bibles

Suit was filed this week by public-school parents, their minor children, teachers, and clergy challenging Oklahoma's recently imposed requirement for all public schools to incorporate the Bible in their curricula. The suit was filed in the Oklahoma Supreme Court asking it to assume original jurisdiction because of the importance and time-sensitiveness of the case. The suit seeks a declaratory judgment, injunction and writ of mandamus providing that the Bible Education Mandate is invalid and unenforceable and seeks orders preventing the purchase of Bibles under the RFP issued by the state. (See prior posting.) The complaint (full text) in Walke v. Walters, (OK Sup. Ct., filed 10/17/2024), alleges in part:

The planned $3 million in spending on Bibles would unlawfully support an invalid rule.  The spending is also illegal for a number of other reasons.  No statutory or other legislative authority exists for Respondents to spend state funds on curricular materials that they select; rather, their authority is limited to providing state funds to individual school districts that the districts can then spend on texts of their own choice.  Respondents intend to spend on the Bibles funds that were designated for other purposes and have not been lawfully reallocated.  The Request for Proposal to supply Bibles violates state procurement requirements because it is gerrymandered to favor two particular providers.  And religious freedom provisions of Oklahoma’s Constitution—specifically Section 5 of Article II and Section 2 of Article I—prohibit spending state funds on the Bibles, because they are religious items and the spending would support one particular religious tradition.

AP reports on the lawsuit.

Florida Enjoined from Threatening Legal Action Against Broadcasters Airing Pro-Abortion Rights Ads

 In Floridians Protecting Freedom, Inc. v. Ladapo, (ND FL, Oct. 17, 2024), a Florida federal district court issued a temporary restraining order barring the head of the Florida Department of Health from continuing to threaten legal proceedings against television stations broadcasting plaintiff's ads which favor Florida's abortion rights amendment that appears on the November ballot. The Department of Health's general counsel sent letters to Florida television stations contending that the ads constituted a sanitary nuisance under Florida Statutes Sec. 386.01. The statute defines a statutory nuisance as anything "by which the health or life of an individual ... may be threatened or impaired." The court said in part:

Plaintiff’s political advertisement is political speech—speech at the core of the First Amendment. And just this year, the United States Supreme Court reaffirmed the bedrock principle that the government cannot do indirectly what it cannot do directly by threatening third parties with legal sanctions to censor speech it disfavors. The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is “false.” “The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion.” ...

By threatening criminal proceedings for broadcasting a “political advertisement claiming that current Florida law does not allow physicians to perform abortions necessary to preserve the lives and health of pregnant women,” ... Defendant has engaged in viewpoint discrimination....

Whether it’s a woman’s right to choose, or the right to talk about it, Plaintiff’s position is the same—“don’t tread on me.” Under the facts of this case, the First Amendment prohibits the State of Florida from trampling on Plaintiff’s free speech.