Religion Clause

Friday, December 13, 2024

Britain Appoints New Special Envoy for Freedom of Religion or Belief

In a press release issued Wednesday, the United Kingdom's Foreign, Commonwealth and Development Office along with its Minister for Human Rights announced that David Smith, MP, has been appointed as the new UK Special Envoy for Freedom of Religion or Belief (FoRB). The press release said in part:

As Envoy, David will champion FoRB for all overseas, promoting tolerance and mutual respect through and alongside the UK’s global diplomatic network and engagements in multilateral fora. David will represent the UK in international discussions on FoRB, working closely with other special envoys, experts and civil society partners. This work supports the UK’s wider human rights efforts, underpinning our belief that human rights are universal.

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

Christian Haven for Sex Trafficking Victims Sues to Receive Federal Funding

Gracehaven, a Christian organization that cares for young survivors of sex trafficking, filed suit this week in an Ohio federal district court challenging the county's refusal to contract with it to receive federal Title IV-E funding for foster care services. The complaint (full text) in Gracehaven, Inc. v. Montgomery County Department of Job and Family Services, (SD OH, filed 12/9/2024), says in part:

12. Because Gracehaven is a Christian ministry that requires all employees to share and live out its religious beliefs, it told Montgomery County that it was not waiving or surrendering its right to employ only those who share its faith by signing the contract, and that it would sign the contract “as is.”

13. The County responded that it would no longer “move forward with the renewal” of the contract with Gracehaven because of the ministry’s religiously based employment practices. ...

15. But Defendants’ position conflicts with federal law, which expressly allows religious organizations to prefer members of their own faith as employees.

18. The United States Supreme Court has clearly established—indeed, has held three times in the past seven years—that the government “violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”

The complaint also alleges that the county's action violates its freedom of expressive association and its religious freedom rights under the Ohio Constitution. ADF issued a press release announcing the filing of the lawsuit.

Thursday, December 12, 2024

Good News Clubs Sue California School District for Access

Suit was filed yesterday in a California federal district court by Child Evangelism Fellowship alleging that a California school district has prevented Good News Clubs from meeting in district elementary schools. The complaint (full text) in Child Evangelism Fellowship NORCAL, Inc. v. Oakland Unified School District Board of Education, (ND CA, filed 12/11/2024), alleges in part:

1. For over two years, Defendant OUSD and its officials have unconstitutionally and impermissibly prohibited CEF from hosting its Good News Clubs in public elementary school facilities owned by OUSD. The Good News Club provides free moral and character training to students from a Christian viewpoint and strategically meets at public schools after school hours for the convenience of parents. CEF’s Good News Club has enriched the emotional, physical, and spiritual well-being of students across OUSD for over a decade.

2. ... CEF was forced to temporarily end its Good News Club meetings in 2020 due to COVID-19 but sought to resume its meetings starting in January 2023. Despite having a long and storied history of providing after-school enrichment programs to students in OUSD, numerous schools within OUSD inexplicably denied the Good News Club access to use OUSD facilities while allowing numerous secular organizations and activities to resume meeting after school hours.

3. CEF seeks a judgment declaring Defendants’ discriminatory use policies unconstitutional, both on their face and as applied, under the Free Speech, Establishment, and Free Exercise Clauses of the First Amendment to the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment. CEF also seeks preliminary and permanent injunctive relief ... together with damages....

Liberty Counsel issued a press release announcing the filing of the lawsuit.

Texas Supreme Court Hears Arguments on Interpretation of "Religious Service Protections" Constitutional Amendment

Last Wednesday, The Texas Supreme Court heard oral arguments (video of full oral arguments) in Perez v. City of San Antonio. The court is being asked to respond to a certified question from the U.S. 5th Circuit Court of Appeals in a case in which members of the Lipan Apache Native American Church claim that improvements to a park that include tree removal and rookery management destroy their ability to use a sacred site in the park for certain religious ceremonies. The certified question involves interpretation of a provision in the Texas state Constitution that was adopted in response to restrictions imposed during the Covid pandemic. The constitutional provision prohibits the state and localities from placing limits on religious services, without specifying whether the ban applies even in cases of a compelling governmental interest in doing so. (See prior posting.) The certified question reads:

Does the “Religious Service Protections” provision of the Constitution of the State of Texas—as expressed in Article 1, Section 6-a—impose a categorical bar on any limitation of any religious service, regardless of the sort of limitation and the government’s interest in that limitation?

The Texas Supreme Court has links to pleadings and briefs (including amicus briefs) filed in the case. Oral argument for appellants was presented by a faculty member from the University of Texas College of Law, Law and Religion Clinic. Religion News Service reports on the oral arguments.

Wednesday, December 11, 2024

9th Circuit Hears Oral Arguments on Whether EMTALA Pre-empts State Abortion Ban

Yesterday, the U.S. 9th Circuit Court of Appeals, sitting en banc, heard oral arguments (video of full oral arguments) in United States v. State of Idaho, (9th Cir., 12/10/2024). The case poses the question of whether the federal Emergency Medical Treatment and Labor Act that requires hospitals accepting Medicare to provide stabilizing emergency treatment to patients preempts state abortion bans when such treatment would involve pregnancy termination. Links to the numerous amicus briefs and court orders in the case are available at the Health Care Litigation Tracker. (See prior related posting.)

Supreme Court Denies Cert. In Dispute Over Standing to Challenge School Gender Identity Support Policy

On Monday, the U.S. Supreme Court denied review in Parents Protecting Our Children, UA v. Eau Claire Area School District, Wisconsin, (Sup. Ct., certiorari denied 12/9/2024). In the case, the U.S. 7th Circuit Court of Appeals held that a parents' organization lacked standing to challenge a school district's policy on Gender Identity Support for students. The Supreme Court denied certiorari over the dissents of Justices Kavanaugh, Alito and Thomas. In a dissenting opinion written by Justice Alito and joined by Justice Thomas. Justice Alito said in part:

This case presents a question of great and growing national importance: whether a public school district violates parents’ “fundamental constitutional right to make decisions concerning the rearing of ” their children ... when, without parental knowledge or consent, it encourages a student to transition to a new gender or assists in that process. We are told that more than 1,000 districts have adopted such policies....

I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions....

Advocate reports on the Court's action.

Tuesday, December 10, 2024

Catholic Bishops, Pope Francis Call on President Biden to Commute Sentences of All Federal Death Row Prisoners to Life in Prison

According to Catholic News Agency:

The U.S. Conference of Catholic Bishops (USCCB) on Monday launched a campaign urging Catholics to contact outgoing President Joe Biden and ask him to commute the death sentences of the 40 men currently on federal death row to life in prison.

The USCCB Action Center posted online a statement calling on individuals to urge the President to commute the sentences. The webpage contains a suggested letter to the President and provides a form for sending and posting the request online.

Meanwhile, on Sunday in the Vatican, Pope Francis joined in the call for commutation. In his Sunday Angelus, he said in part:

Today, it comes to my heart to ask you all to pray for the prisoners who are on death row in the United States. I believe there are thirteen or fifteen of them. Let us pray that their sentence be commuted, changed. Let us think of these brothers and sisters of ours and ask the Lord for the grace to save them from death.

Neither the Bishops' statement nor that of the Pope makes mention of President Biden's Roman Catholic faith.

Today Is Human Rights Day

Today is Human Rights Day marking the 76th anniversary of the adoption of the Universal Declaration of Human Rights by the United Nations General Assembly. Article 18 of the Declaration provides:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Yesterday President Biden issued a Proclamation (full text) declaring today to be Human Rights Day, and the week beginning today as Human Rights Week. The Proclamation declares in part:

Today, our country continues to stand with our partners and allies to defend human rights and fundamental freedoms around the world — from combatting threats to silence and intimidate human rights defenders like journalists to championing democracy, fair elections, and the universal human rights to freedoms of association, peaceful assembly, religion, and expression. When crises erupt, we protect civilians from mass atrocities, promote accountability for those responsible for human rights violations and abuses, seek to free political prisoners, and create space for civilian dialogue.

2nd Circuit: Lawyers Have Standing to Challenge Bar Rule That Limits Comments on Transgender and Religious Subject Matter

In Cerame v. Slack, (2d Cir., Dec. 9, 2024), the U.S. 2nd Circuit Court of Appeals held that two Connecticut lawyers have standing to bring a pre-enforcement challenge to a state Rule of Professional Conduct which prohibits lawyers from engaging in harassing or discriminatory conduct against members of various protected classes in the practice of law. It bars harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status. Commentary to the Rule defines discrimination as including harmful verbal conduct directed at an individual that manifests bias or prejudice. The attorneys allege that they often speak out on legal blogs, in articles and legal seminars in ways that could be construed as personally derogatory. According to the court:

Moynahan and Cerame ... allege... that “[t]here are numerous examples of speech” fully protected by the First Amendment that members of the Connecticut bar will be reluctant to engage in, given the fear of a misconduct complaint...." These include using “the pronoun associated with a transgender individual’s biological sex when addressing that individual”; using the term “‘gender preference’ rather than ‘gender orientation’”; ... and publishing cartoons that “satiri[ze] or mock[]” “a religious deity”.....

Appellees argue that the commentary to Rule 8.4, providing that an attorney “does not violate paragraph (7) when the conduct in question is protected under the first amendment to the United States constitution,” ...“unambiguously shows that the Rule does not proscribe protected speech”....

Although the First Amendment carve-out may make it more likely that the SGC will conclude that some speech that would otherwise fall within the text of Rule 8.4(7) is not in fact proscribed, the carve-out is not enough, on its own, to render Appellants’ fear of a misconduct complaint and its professional repercussions “imaginary or wholly speculative” for Article III purposes...

At this stage in the proceedings, Appellants have alleged plausibly that they intend to engage in speech proscribed, at least arguably, by a recently enacted, focused regulation. This gives rise to a credible threat of enforcement.

Reuters reports on the decision.

Monday, December 09, 2024

Teacher Sues After Being Suspended for Having Books With LGBTQ+ Characters in Her Classroom

A third-grade teacher in the southern Ohio village of New Richmond filed suit last week in an Ohio federal district court seeking damages for the 3-day suspension imposed on her for having four books in her classroom's book collection that have LGBTQ+ characters in them. The school claimed that the books violated the District's Policy 2240 on Controversial Issues in the Classroom. The complaint (full text) in Cahall v. New Richmond Exempted Village School District Board of Education, (SD OH, filed 12/2/2024), alleges in part:

12. Plaintiff Karen Cahall maintained these books in her classroom amongst over one hundred other books spanning a wide variety of subject matters in furtherance of her sincerely held moral and religious beliefs that that all children, including children who are LGBTQ+ or the children of parents who are LGBTQ+, deserve to be respected, accepted, and loved for who they are....

50. During the course of her employment with defendant New Richmond, other teachers, staff and administrators have publicly displayed insignias and symbols of their religious beliefs in the presence of students, including but not limited to Christian crosses worn as jewelry, that are more visible to students than the books identified herein, without any consequence....

70. New Richmond Board Policy No. 2240 is unconstitutionally vague ... because it fails to provide fair notice to plaintiff Karen Cahall and other teachers ... of what they can and cannot maintain in their classrooms....

81. By using New Richmond Board Policy No. 2240 to suspend plaintiff Karen Cahall ... based upon a perceived community objection to plaintiff Karen Cahall’s sincerely held moral and religious beliefs, defendant Tracey Miller unlawfully and with discriminatory intent determined that plaintiff Karen Cahall’s religious viewpoints and beliefs were unacceptable, in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.....

87. By using New Richmond Board Policy No. 2240 to suspend plaintiff Karen Cahall ..., defendant Tracey Miller unlawfully and with discriminatory intent determined that plaintiff Karen Cahall’s moral and religious viewpoints and beliefs were unacceptable in comparison to the moral and religious viewpoints of others. in violation of the Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution.

Cincinatti Enquirer reported on the lawsuit.

Saturday, December 07, 2024

Street Preacher Who Refused to Leave Restricted Area Around Kentucky Derby Loses Challenges to His Arrest

In Blankenship v. Louisville-Jefferson County Metro Government, Kentucky, (WD KY, Dec. 6, 2024), a Kentucky federal district court dismissed free speech, free exercise and vagueness challenges to action by local law enforcement against a street preacher, Jacob Blankenship, who refused to leave a restricted area around Churchill Downs on Kentucky Derby Day. The Court said in part:

... [I]f the restriction of Blankenship’s speech was content-neutral, it makes no difference whether Blankenship was arrested in a traditional or limited public forum....

[B]ecause the restrictions of access to the permitted and ticketed areas served purposes unrelated to the content of speech, those restrictions were content-neutral. The purpose of establishing the permitted area—facilitating ingress and egress for Churchill Downs—can be justified without reference to the content of any speech.... Accordingly, Blankenship’s free speech claim calls for intermediate scrutiny....

...Those restrictions survive intermediate scrutiny. The ticketed area was narrowly tailored to serve Metro’s significant interests in traffic control and public safety. It also left open ample alternative channels for Blankenship to share his message with essentially the same audience.....

The purpose of Metro’s permitting scheme is not to infringe upon or restrict religious practices.... The ticketed area restricted Blankenship’s preaching no differently than it restricted non-religious conduct....

... Because the ticketed area’s restrictions only incidentally effected Blankenship’s preaching, on his free exercise claim, Metro and Young are entitled to judgment as matter of law....

Because Blankenship has not tethered his due process void-for-vagueness claim to any liberty or property interest, it fails as a matter of law.

Thursday, December 05, 2024

Ministerial Exception Is Affirmative Defense, Not Jurisdictional Bar

In Matter of Ibhawa v New York State Division of Human Rights, (NY Ct App, Nov. 26, 2024), New York's highest appellate court reversed a lower appellate court's dismissal of a priest's hostile work environment claim because the Appellate Division had treated the ministerial exception doctrine as a jurisdictional bar rather than as an affirmative defense. The state Division of Human Rights had dismissed both the claim of racial and national origin discrimination and the hostile work environment claim by a Black Nigerian Catholic priest who was employed as a parish administrator. On appeal ultimately to the New York Court of Appeals, the court remanded the hostile work environment claim to the Division of Human Rights, saying in part:

... [O]nce the Diocese raised the ministerial exception as one of several affirmative defenses, the question confronting DHR was not whether the exception limited its power to consider Ibhawa's claim, but whether any of the Diocese's affirmative defenses—including the two statutory defenses raised by the Diocese—established that the case could not proceed beyond its current stage....

Because DHR erred in treating the ministerial exception as a jurisdictional bar rather than an affirmative defense, its determination was affected by an error of law. In reaching that conclusion, we express no view on whether any of the Diocese's defenses are meritorious.

[Thanks to John Melcon for the lead.]

Wednesday, December 04, 2024

9th Circuit Narrows Preliminary Injunction Against Idaho's Abortion Trafficking Law

In a 2-1 decision in Matsumoto v. Labrador, (9th Cir., Dec. 2, 2024) the U.S. 9th Circuit Court of Appeals significantly narrowed an Idaho federal district court's preliminary injunction against enforcement of the state's ban on assisting a minor in various ways to obtain an abortion without her parent's consent. The majority concluded that plaintiffs were likely to succeed only in their challenge to one part of the law.

Idaho Code §18-623 provides:

An adult who, with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion ... or obtains an abortion-inducing drug for the pregnant minor to use for an abortion by recruiting, harboring, or transporting the pregnant minor within this state commits the crime of abortion trafficking.

The majority held that the statute is not void for vagueness, nor does it burden the right of expressive association. It concluded, however, that the statute's ban on "recruiting" is an unconstitutionally overbroad regulation of protected speech. The court said in part:

... “[R]ecruiting” has broad contours that overlap extensively with the First Amendment. It sweeps in a large swath of expressive activities—from encouragement, counseling, and emotional support; to education about available medical services and reproductive health care; to public advocacy promoting abortion care and abortion access. It is not difficult to conclude from these examples that the statute encompasses, and may realistically be applied to, a substantial amount of protected speech....

In our view, the “recruiting” prong of Section 18-623 is neither integral nor indispensable to the operation of the statute as the Idaho legislature intended and therefore may be severed from the rest of the law. Without the “recruiting” prong, the statute criminalizes “harboring or transporting” a minor to “procure an abortion” “with the intent to conceal [the abortion] from the parents or guardian” of the minor— an intelligible crime that reaches the problems the legislature sought to rectify.

Judge Bea dissented in part. He argued that plaintiffs lack standing and therefore the district court should dismiss the suit. Idaho Capital Sun reports on the decision.

Supreme Court Will Hear Arguments Today on Tennesse Ban of Gender Affirming Medical Treatment for Minors

The U.S. Supreme Court this morning will hear oral arguments in United States v. Skrmetti. The case involves a challenge to Tennessee's ban on chemical, hormonal and surgical treatments of minors for gender dysphoria. In the case, the U.S. 6th Circuit Court of Appeals rejected Equal Protection and Due Process challenges to the law. A central issue in today's arguments will be whether transgender classifications trigger heightened scrutiny. SCOTUSblog has an extensive discussion of the issues in the case. More than 80 amicus briefs have been filed in the case. Links to all of them and additional pleadings in the case are available at the SCOTUSblog case page for the case.

Oral arguments will be streamed live at this link beginning at 10:00 AM. Argument audio will be archived at this link. A written transcript of the oral arguments will be available later today at this link.

Tuesday, December 03, 2024

Suit Challenging Anti-Zionist Proposed Curriculum Is Dismissed

In Concerned Jewish Parents and Teachers of Los Angeles v. Liberated Ethnic Studies Model Curriculum Consortium, (CD CA, Nov. 30, 2024), a California federal district court dismissed both for jurisdictional reasons and on the merits a suit by plaintiffs who were Jewish Zionists against a group that developed a set of teaching materials that the group hoped Los Angeles Public Schools would adopt. The court said in part:

According to plaintiffs, the challenged curriculum "denounces capitalism, the nuclear family, and the territorial integrity of the lower 48 states of the United States[,]"... and is designed "to expunge the idea of Zionism, and the legitimacy of the existence of the State of Israel, from the public square[.]"... Plaintiffs allege there is "rank discrimination embedded in the LESMC," ... because the challenged curriculum, among other things, "includes statements that the existence of the State of Israel is based on ethnic cleansing and land theft, apartheid and genocide" and that "Zionism is distinct from Judaism."... Because the challenged curriculum contains anti-Zionist material, plaintiffs allege that the curriculum is antisemitic.,,,

The court held that plaintiffs' claims were not ripe for judicial review and that plaintiffs lacked standing to bring their claims. It went on to also reject plaintiffs' equal protection and free exercise challenges on additional grounds. It held first that the defendants other than the school district were not state actors for purposes of the 14th Amendment. It went on to hold:

... [I]t is clear that the [complaint] is a direct "attack on curricula" — and "absent evidence of unlawful intentional discrimination, parents are not entitled to bring Equal Protection claims challenging curriculum content."... In short, plaintiffs' equal protection claims under both the California and United States constitutions must be dismissed....

In effect, the only hardship plaintiffs allege is that the existence of the challenged curriculum — and its possible adoption — offends them. But mere offense is insufficient to allege a burden on religious exercise....

In short, plaintiffs' claim that the challenged curriculum violates the Free Exercise Clause because it is intended "to suppress public expression of, and public support for, Zionist beliefs and to prevent Zionists from acting on their sincerely held religious belief[,]" ... must be dismissed, as plaintiffs have not adequately alleged a substantial burden on their religious exercise or practice.

The court also rejected claims under Title VI and the California Education Code. It then concluded:

... [I]t must also be noted that significant First Amendment concerns underlie plaintiffs' claims and requested relief.... In effect, plaintiffs seek to litigate the propriety and legality of a potential curriculum with which they disagree. Their claims thus conflict with the First Amendment in several respects, and are largely barred on that basis as well.

Various state law claims were also stricken under California's anti=SLAPP statute.

Noticias Newswire reports on the decision.

Monday, December 02, 2024

Saturday, November 30, 2024

Missouri AG Issues Opinion on Which Abortion Restrictions Remain Enforceable After Reproductive Freedom Amendment

Missouri Attorney General Andrew Bailey has issued Opinion Letter No. 22-2024, (Nov. 22, 2024) outlining the extent to which the state's restrictive abortion laws are still enforceable after voter adoption of a state constitutional amendment protecting abortion rights. The Opinion Letter was requested by Missouri Governor-Elect Mike Kehoe. The Attorney General's Opinion Letter reads in part:

... Amendment 3 was adopted-- just barely-- by a margin of 3%. In a contest where the "yes:" side was able in effect to rewrite the ballot summary language, receive tens of millions of dollars in funding from out of state, and outspent the "no" side 6 to 1, this tight margin suggests the result may be very different if a future constitutional amendment is put up for a vote.

Nevertheless, until and unless voters have an opportunity to vote again ..., Amendment 3 will render some statutes unenforceable.... Missouri statutes entirely prohibit elective abortions-- i.e., abortions other than those performed because of a medical emergency.... Amendment 3 ... will generally prohibit ... officials from enforcing these provisions....

... [T]here will remain some circumstances where these five statutes are enforceable....

First, under the express terms of the amendment, the government may still protect innocent life after viability....

Second, the Attorney General will continue to enforce these statutes in circumstances where parents do not consent to an adolescent minor obtaining an abortion. Under the U.S. Constitution, parents have a "fundamental right ... to make decisions concerning the care, custody, and control of their children."... This includes the "right to refuse unwanted medical treatment."... Amendment 3 cannot displace that federal constitutional right....

... [W]hen the Supreme Court reversed the Roe line of cases, ... the court restored longstanding parental rights.

Third... [t]he right of parents to forbid minors from obtaining abortions should not be misunderstood to somehow imply a right to force abortion on minors.

The same is true for adults coerced into abortion.... Amendment 3 does not give abortion clinics a right to perform abortions on women who have been coerced....

Missouri Independent reports on the Attorney General's Opinion Letter. [Thanks to Scott Mange for the lead.]

Friday, November 29, 2024

Texas AG Sues Church-Run Homeless Center Alleging It Has Become a Public Nuisance

Texas Attorney General Ken Paxton this week filed a lawsuit in state court against a church-run homeless center that receives over $1 million in funding from the city of Austin. The complaint (full text) in State of Texas v. Sunrise Community Church, Inc. d/b/a Sunrise Homeless Navigation Center, (TX Dist. Ct., filed 11/26/2024), alleges that the homeless shelter's operations constitute a statutory common nuisance and a common law public nuisance. The complaint says in part:

In South Austin, a once peaceful neighborhood has been transformed by homeless drug addicts, convicted criminals, and registered sex offenders. These people do drugs in sight of children, publicly fornicate next to an elementary school, menace residents with machetes, urinate and defecate on public grounds, and generally terrorize the surrounding community....

The state asks for injunctions closing the homeless center for one year. It also asks that the center be prohibited from operating within 1,000 feet of any school playground or youth center and from operating in any location "in a manner that frequently attracts patrons whose conduct violates the rights of neighborhood residents, school children, businesses, and the general public to peacefully use and enjoy the surrounding area."

Attorney General Paxton issued a press release announcing the filing of the lawsuit. Austin American- Statesman reports on the lawsuit.

Denial of Historic Preservation Grants to Churches Violates 1st Amendment

In The Mendham Methodist Church v. Morris County, New Jersey, (D NJ, Nov. 27, 2024), a New Jersey federal district court held that Rule 5.6.4 of New Jersey's Historic Preservation Grant program violates the 1st Amendment's Free Exercise Clause. Rule 5.6.4 bars grants for "property currently used for religious purposes or functions." The Rule was based on the state constitution's Religious Aid Clause which says in part: "[n]o person shall . . . be obliged to pay . . . taxes ... for building or repairing any church or ... place ... of worship....." In granting a preliminary injunction against denial of grants to plaintiff churches, the court said in part:

The Religious Aid Clause does not "zero in on any particular 'essentially religious' aspect of funding.... Therefore, Rule 5.6.4 is not narrowly tailored. It states that "[a]ny property that is currently used for religious purposes or functions is ineligible for Historic Preservation grant funding."... Plaintiff Mendham was informed in 2022 that it was ineligible for grant funding from the Fund because the application involved "the principle [sic] church building that is currently used for religious purposes."... Rule 5.6.4 does not limit funding to religious institutions to secular aspects of repair. Instead, it excludes the institutions from eligibility wholesale because they are religious institutions. Rule 5.6.4, as currently written and construed, therefore, likely violates the Free Exercise Clause.

The current construction of Rule 5.6.4 does not mean, however, that Locke [v. Davey] is not still good law, nor that any restriction on taxpayer funding of religious institutions is unconstitutional. Without deciding the issue, the Court notes that a different version of Rule 5.6.4 restricting mandated taxpayer funding of purely religious iconography or purposes may still survive under Locke. However, such a hypothetical, narrower provision is not before the Court.

Thursday, November 28, 2024

President Biden Issues Thanksgiving Proclamation

Today is Thanksgiving. Yesterday, President Biden issued the formal Proclamation (full text) declaring today as a National Day of Thanksgiving. The Proclamation reads in part:

This Thanksgiving — the last one I will declare as President — I express my gratitude to the American people. Serving as President has been the honor of a lifetime. America is the greatest country on Earth, and there is so much to be grateful for. May we celebrate all that unites us — because there is nothing beyond our capacity if we do it together.

... I encourage the people of the United States of America to join together and give thanks for the friends, neighbors, family members, and communities who have supported each other over the past year in a reflection of goodwill and unity.

The National Archives website displays the 1941 Congressional Joint Resolution that finally fixed the fourth Thursday in November as the date for Thanksgiving Day, along with some interesting history surrounding the selection of the date.

Ohio Governor Signs Transgender Bathroom Bill

AP reports that that on Tuesday Ohio Governor Mike DeWine signed Senate Bill 104, the Protect All Students Act (full text of bill). The Act requires public and most private elementary and secondary schools as well as all public and private colleges and universities to designate multiple occupancy restrooms, locker rooms, changing rooms and shower rooms for use either by the male biological sex or the female biological sex. No school may have a multi-occupancy facility designated as open to all genders, nor may a school permit a member of the female biological sex to share overnight accommodations with members of the male biological sex. Transgender individuals may use single occupancy restrooms or faculty restrooms. According to AP, DeWine signed the bill out of public view and issued no statement regarding the signing.

Wednesday, November 27, 2024

British Court Says Husband May Use IVF Embryo for Surrogate Pregnancy After Wife's Death

In EF v. Human Fertilisation and Embryology Authority, (EWHC, Nov. 22, 2024), the England and Wales High Court (Family Division) held that Article 8 (Right to respect for private and family life) of the European Convention on Human Rights gives a court discretion to look outside of written consent forms to determine a wife's wishes regarding use of embryos created with her eggs and her husband's sperm. In the case, when the wife unexpectedly died, the husband sought access to their embryo for implantation in a surrogate. Standard consent forms signed by the parties did not contemplate this situation. The court said in part:

They are each active members of the J religion which has as one of its core beliefs the sanctity of life and the divine purpose of all life forms. A priest from J religion has filed a detailed statement describing the couples’ deep faith, in particular in the context of conceiving and raising a family evidenced by her reaction when she had an earlier miscarriage. AB believed every living being has a soul and in the J religion’s belief in reincarnation, and considered the divine soul enters the embryos at the point of conception....

EF’s evidence sets out why he is certain that AB’s wish was that their jointly created embryo be used posthumously with a surrogate in the event of her death, if she had been given the chance to do so....

I am satisfied Sch 3 HFEA 1990 should be read down to introduce an implied discretion for the court to accept evidence of consent provided other than in writing where a failure to do so would result in a breach of Art 8. This conclusion does not go against the grain of the legislation, it supports the fundamental principle that the wishes of gamete providers should be paramount. It does not dispense with the requirement of consent, it provides for the possibility of it being provided other than in writing in circumstances where there is clear evidence of the gamete providers wishes and the only reason written consent was not given was due to the lack of opportunity to do so. There is nothing in the legislative history that suggests this situation was considered by Parliament.

While the court relied only on Article 8 in its decision, Applicant also argued:

In the context of Article 9 [Freedom of thought, conscience and religion]: (1) EF would be deprived of being able to honour or fulfil AB’s religious wishes for the embryo to be used in accordance with her beliefs to give the life form a chance. (2) If unused the embryo would be left to perish which is contrary to both EF and AB’s strongly held religious beliefs....

Law & Religion UK reports on the decision, as does UK Human Rights Blog.

Tuesday, November 26, 2024

Nominee To 3rd Circuit Who Would Have Been First Muslim Circuit Court Judge Will Not Be Confirmed by Senate

New Jersey Globe reports that President Biden's nomination of Adeel Mangi to the U.S. Third Circuit Court of Appeals will not be approved before the current Congressional session ends. Mangi, born in Pakistan, would have been the first Muslim to sit on a federal Circuit Court. Mangi is a partner in the New York law firm of Patterson Belknap whose website says in part:

Mr. Mangi has ... litigated numerous high-profile civil rights cases. These included some of the most closely watched religious freedom cases of the Trump era, which involved two different Muslim communities denied permission to build mosques in Bernards Township and Bayonne.... Both cases eventually resulted in settlements under which the mosques were approved and the municipalities involved paid significant compensation to the affected Islamic groups.

New Jersey Globe reports:

... Mangi came before the Senate Judiciary Committee for two fraught hearings in December 2023 and January 2024.... Republicans interrogated Mangi over his role on an advisory board for the Center for Security, Race and Rights at Rutgers Law School, a controversial group that they said had become an antisemitic, anti-American hotbed under Mangi’s nose.

Top Senate Democrats ... defended Mangi from the attacks, noting that his role at the center was a limited one and accusing Republicans of using Islamophobia to sink Mangi’s history-making nomination. But three Democratic senators ... came out publicly against Mangi, which in such a closely divided Senate was enough to deny him the votes needed for confirmation.

9th Circuit Hears Arguments on Youth Ministry's Access to State Grants

Last week (Nov. 20) the U.S. 9th Circuit Court of Appeals heard oral arguments in Youth 71Five Ministries v. Williams (video of full oral arguments). In the case, the state of Oregon canceled $410,000 in grants to Youth 71Five when the state discovered that the Ministries only hires those that share its faith. This violates of the state's "Certification Rule" that bars grantees from discriminating in their employment practices. An Oregon federal district court denied the Ministries' request for a preliminary injunction. In August 2024, the 9th Circuit Court of Appeals issued an injunction pending appeal allowing 71Five to participate in the 2023-25 Oregon Youth Community Investment Grant Program. (See prior posting.) It also ordered an expedited schedule for briefing and arguing the appeal. That is the appeal which the 9th Circuit heard last week. World reports on the decision.

Missouri Trial Court Upholds State's Ban on Gender Affirming Care for Minors

In Noe v. Parson, (MO Cir. Ct., Nov. 25, 2024), a Missouri state trial court upheld the constitutionality of Missouri's ban on gender transition surgery for minors and its 4-year moratorium on puberty-blocking drugs and cross-sex hormones for minors for the purpose of treating gender dysphoria. It also upheld the state's ban on the use of state Medicaid funds for gender transition procedures. The decision, reflected in a 74-page opinion setting out extensive findings of fact and conclusions of law, comes in a facial challenge to Missouri's Save Adolescents from Experimentation (SAFE) Act. The court said in part:

This Court finds an almost total lack of consensus as to the medical ethics of adolescent gender dysphoria treatment....

Furthermore, the credible evidence shows that a vast majority of children who are diagnosed with gender dysphoria outgrow the condition....

Critically, Plaintiffs made the strategic decision to bring a facial challenge to the entirety of several provisions, meaning they must establish that "no set of circumstances exists under which the [provisions] would be valid."... They chose not to seek an as-applied exception, a carve-out exception, to the regulation. The Constitution does not permit a single judge to nullify the results of democratically enacted legislation where, as here, there is a medical dispute about the safety or efficacy of those interventions....

There is nothing arbitrary or irrational ... about putting in place a 4-year pause on interventions that medical authorities across the world have said lack any substantial evidentiary support....

Lambda Legal and ACLU of Missouri said they will appeal the decision. Missouri Independent reports on the decision.

Monday, November 25, 2024

Sunday, November 24, 2024

Food Ministry Can Move Ahead with RLUIPA and Free Exercise Claims Against City

In Gethsemani Baptist Church v. City of San Luis, (D AZ, Nov. 22, 2024), an Arizona federal district court refused to dismiss RLUIPA, 1st Amendment and state law claims brought against the city by a church that operates a Food Ministry. When the city adopted its current zoning code in 2012, it considered the Ministry a permitted pre-existing non-conforming use. In 2023, however, the city alleged that the nature of the Ministry's activities had changed so that it could no longer be considered a legal pre-existing non-conforming use in a residential zone. The Church sued claiming enforcement placed a substantial burden on its exercise of religion. The city argued in part that the Church needed to apply for a conditional use permit and could sue only if and when that was denied. The court rejected the city's motion to dismiss for lack of ripeness. It also concluded that the Church had adequately stated a claim that RLUIPA applies because the city made an individualized assessment of the use of the property. The court refused to dismiss the Church's 1st Amendment claim, finding that it had pled sufficient facts to establish a plausible entitlement to relief. Finally, it refused to dismiss plaintiff's claims brought under the Arizona Free Exercise of Religion Act.

Saturday, November 23, 2024

House of Representatives Passes Resolution Condemning Rise of Antisemitism

On Nov. 20, the U.S. House of Representatives by a vote of 388-21 gave final approval to House Resolution 1449 (full text) condemning the rise of antisemitism in countries around the world and encouraging states and international bodies to endorse and embrace the July 2024 Global Guidelines for Combatting Antisemitism. The "no" votes were triggered by a reference in one of the Whereas clauses of the resolution to the International Holocaust Remembrance Alliance's “working definition” of antisemitism. JNS reports on the House action. The Algemeiner reports on the opposition votes.

Friday, November 22, 2024

Texas State Board of Education Adopts Suggested Curriculum That Includes Numerous Biblical References

As reported by KERA News:

The Texas State Board of Education today gave final approval to a controversial new elementary curriculum that features numerous Biblical references, from stories about King Solomon to Jesus’ Sermon on the Mount.

The board voted 8 to 7 in favor of the state-developed “Bluebonnet Learning” English and language arts materials, which critics say privilege Christianity over other religions....

Schools aren’t required to use Bluebonnet Learning, but the state will offer financial incentives to districts that do....

All the English Language Arts and Reading Instructional Materials are posted on the Board's website. The Texas Freedom Network Education Fund has posted an analysis of the materials entitled Turning Texas Public Schools Into Sunday Schools? A press release supporting the Board's adoption of the curriculum was issued by Texas Values.

Note to Readers: X(Twitter) and Facebook Feeds Are Now Back

Note to Religion Clause Readers: You can once again access Religion Clause posts on X(Twitter) [@religionclause] and Facebook [Religion Clause]. Technical issues that have prevented syndication of posts since September have now been resolved.

Muslim Arab American Politician Sues After Being Ejected from Harris Political Rally

A discrimination suit was filed yesterday in a Michigan federal district court against a theater in the metropolitan Detroit area that in October hosted a rally for presidential candidate Kamala Harris. Plaintiff, Dr. Ahmed Ghanim, is a Muslim Arab American of Egyptian descent who ran an unsuccessful Democratic primary campaign for House of representatives. He was escorted out of the rally by secret service who said they were acting on behalf of the venue. The complaint (full text) in Ghanim v. Worldwide Entertainment ROMT, LLC, (ED MI, filed 11/21/2024), alleges intentional discrimination on the basis of race and/or religion or ethnicity in a place of public accommodation in violation of the Civil Rights Act of 1964 and Michigan's Elliott-Larsen Civil Rights Act. It also alleges intentional infliction of emotional distress. According to a report by the Detroit News:

One day after the incident, the Harris campaign said it "regrets" what happened and said "he is welcome at future events."

Thursday, November 21, 2024

Suit Challenges Illinois Requirements for Insurance Policies to Cover Abortions

Suit was filed yesterday in an Illinois federal district court challenging on both constitutional and federal statutory grounds Illinois statutes that requires health-insurance policies to cover elective abortions on the same terms as other pregnancy-related benefits and to cover, without co-pays, abortion inducing drugs. The complaint (full text) in Students for Life of America v. Gillespie, (ND IL, filed 11/20/2024), alleges that these provisions violate free exercise rights, the right of expressive association, the federal Comstock Act, the Coates-Snow Amendment and the Weldon Amendment. Thomas More Society issued a press release announcing the filing of the lawsuit.

Suit Against Church for Negligent Retention of Pastor Can Move Ahead

In Exum v. St. Andrews-Covenant Presbyterian Church, Inc., (NC App, Nov. 19, 2024), a North Carolina state appellate court held that claims for negligent retention, negligent infliction of emotional distress, and breach of fiduciary duty brought against a church do not need to be dismissed under the ecclesiastical abstention doctrine because they can be decided using neutral principles of law. Plaintiff and his wife attended St. Andrews-Covenant Church. The church's pastor, Derek Macleod, entered a romantic relationship with plaintiff's wife. After plaintiff and his wife were divorced, Plaintiff sued the church and its parent bodies. The court said in part:

Exum alleges that St. Andrews-Covenant was negligent in allowing Macleod’s tortious conduct to occur because St. Andrews-Covenant knew or should have known that Macleod had engaged in similar misconduct in his capacity as a church leader in prior roles. ...

“[T]here is no necessity for th[is] [C]ourt to interpret or weigh church doctrine in its adjudication of” Exum’s claims premised on alleged negligence in placing and retaining Macleod at St. Andrews-Covenant.... “It follows that the First Amendment is not implicated and does not bar” Exum’s claims against St. Andrews-Covenant.... As the Court in Smith [v. Privette] explained, a contrary holding “would go beyond First Amendment protection and cloak such [religious] bodies with an exclusive immunity greater than that required for the preservation of the principles constitutionally safeguarded.”....

Court Examines Sincerity and Religiosity of Vaccine Objections

Stynchula v. Inova Health Care Services, (ED VA, Nov. 19, 2024), is another of the dozens of cases working their way through the courts in which employees have asserted religious objections to Covid vaccine mandates, and their employers have refused to accommodate their objections on the ground that the employees' beliefs were either not religious or not sincerely held. Here the court examines objections asserted by two employees (Netko and Stynchula) and says in part:

Inova argues that Netko’s claim fails because his requests for religious exemptions from the COVID vaccine requirement did not assert beliefs that he sincerely held. The Court agrees....

... Netko’s practice with respect to medicines and vaccines developed using fetal cell lines “[was] inconsistent. He puts some medicines in his body, but not others” and thus he has severely contradicted his assertion that he could not receive a COVID-19 vaccine without compromising his religious beliefs.....

Netko rejects this conclusion in several ways, none of which is compelling. He argues that Inova cannot show that he subjectively knew of the involvement of fetal cells in the medications and vaccinations that he received, when he received them, and because “sincerity is a subjective question pertaining to the party’s mental state,” if Netko received them ignorant of the fact of fetal cell involvement, “that is not behavior that is markedly inconsistent with his stated beliefs.” ... But there is no rule that a subjective mental state cannot be proven by objective circumstantial evidence....

Netko also contends that his failure to consistently raise fetal cell objections is of no consequence because “a finding of sincerity does not require perfect adherence to beliefs expressed by the [plaintiff], and even the most sincere practitioner may stray from time to time.”... But for a self-declared life-long adherent of a belief, like Netko, such a principle does not mean that sincerity is evident when he strays one hundred percent of the time until one day, he ostensibly decides to outwardly manifest his belief.

... Netko’s assertion that his religion prevented him from taking such vaccines “appears to have been newly adopted only in response to the demand that [he] take the COVID-19 vaccine,”... which is consistent with his general hostility to authority with respect to the COVID pandemic as a whole....

Inova asserts that Stynchula’s claim must fail because her vaccine exemption requests reflect beliefs that are secular, rather than religious, in nature....

Stynchula has not presented facts that show her vaccine-related beliefs are religious.... She states that her fetal cell line objections are grounded in her Catholic upbringing, whereas she joined the Church of Scientology in 2001.... And, the connection between her Scientological beliefs and her vaccination objections is undeveloped except to the extent that she objected to COVID vaccinations as “foreign substances” on the basis of the “axiom” of “Self Determinism” ... and the idea that “the spirit alone may save or heal the body”... But these simply “seek[] a religious objection to any requirement with which [Stynchula] disagrees” and do not concern religious beliefs.... They are, rather, “isolated moral teaching[s]” in lieu of a “comprehensive system of beliefs about fundamental or ultimate matters.”...

Relatedly, Stynchula’s statements and conduct “only reinforce[] that her opposition stems from her medical beliefs.” ... She believes that her “body is a gift from God” and objects to vaccinations because “[she] do[es] not believe in injecting foreign substances unless there is a therapeutic reason”... and because they would “impact [her] relationship with God” and “would be a sin, as it goes against [her] deeply felt convictions and the answers [she] ha[s] received in prayer”....

... Stynchula does not review medication and vaccine information with an eye towards religious mandates or prohibitions. That is, her search is not to ensure that a specific substance is not present in her medications, or that certain religious procedures have been followed. She simply engages in a cost-benefit analysis of vaccines and medications rooted in her personal concerns over their safety and efficacy. Attaching a gloss of “general moral commandment[s],” such as beliefs in personal liberty or that the body is a temple, to these concerns cannot alone render them religious.

Wednesday, November 20, 2024

Jury Questions Remain in Suit by Casino Worker Fired for Refusing Covid Vaccine

In Brown v. MGM Grand Casino, ( ED MI, Nov. 18, 2024), a Michigan federal district court refused to grant summary judgment for either party in a suit by a former warehouse manager for MGM Grand Casino who was fired for refusing to comply with his employer's Covid vaccine mandate. Plaintiff, an Orthodox Apostolic Christian, had applied for a religious accommodation. It was refused. According to the court:

Defendant expressed doubt about the sincerity of Plaintiff’s religious belief.... It also expressed doubt about whether Plaintiff’s belief is religious in nature or purely secular.... Nevertheless, Defendant determined that accommodating Plaintiff would impose an undue burden on Defendant’s operations and denied his request on those grounds....

Defendant cites many non-controlling cases from other Circuits for the proposition that Plaintiff’s objection to the vaccination policy based on his opposition to abortion fails to demonstrate a religious belief, because he does not tie it to a wider religious observance, practice, or outlook....However, the Court is not persuaded by the underlying logic of these cases. Of course, a plaintiff claiming a failure to accommodate is required to demonstrate a connection between their belief and some “religious principle” they follow.... But courts “may not question the veracity of one’s religious beliefs.” ... Thus, a plaintiff need not cite specific tenets of his religion that forbid the contested employment policy or explain how those tenets forbid it. ...

While Plaintiff has demonstrated that his beliefs are religious, it is another question whether his beliefs are sincere.... [T]he factfinder need not take a plaintiff at his word.” ... Defendant has raised several reasons to question Plaintiff’s sincerity, such as the fact that his religious reasoning was not consistent throughout his accommodation request process or in his deposition, or the fact that he described medical reasons for wanting to avoid the vaccine....

Therefore, the Court concludes that material questions of fact remain as to whether Plaintiff has a sincerely held religious belief.

The court also concluded that the employer's undue hardship defense posed a jury question since, among other things, large numbers of workers under collective bargaining agreements were not vaccinated.

State Trial Court Strikes Down Wyoming Abortion Bans

In Johnson v. State of Wyoming, (WY Dist. Ct., Nov. 18, 2024), a Wyoming state trial court held that two Wyoming statutes barring abortions violate the Wyoming Constitution. One of the statutes bans all abortions with narrow exceptions. The other is a ban on prescribing or selling medication abortion drugs. The court said in part:

Under the Life Act and the Medication Abortion Ban, the State has enacted laws that impede the fundamental right to make health care decisions for an entire class of people, pregnant women. Wyoming Constitution, article 1, section 38 provides all individuals with the fundamental right to their own personal autonomy when making medical decisions. The Defendants have not established a compelling governmental interest to exclude pregnant women from fully realizing the protections afforded by the Wyoming Constitution during the entire term of their pregnancies, nor have the Defendants established that the Abortion Statutes accomplish their interest. The Court concludes that the Abortion Statutes suspend a woman's right to make her own health care decisions during the entire term of a pregnancy and are not reasonable or necessary to protect the health and general welfare of the people.

The court entered a permanent injunction, thus extending the temporary restraining orders that it had previously issued. Buckrail reports on the decision and reports that Wyoming Governor Mark Gordon has indicated that the decision will be appealed to the state Supreme Court. [Thanks to Scott Mange for the lead.]

Tuesday, November 19, 2024

2nd Circuit Hears Oral Arguments from Amish Seeking Vaccination Exemptions

The U.S. 2nd Circuit Court of Appeals yesterday heard oral arguments (audio of full oral arguments) in Miller v. McDonald. In the case, a New York federal district court upheld New York's removal of religious exemptions from its mandatory requirement for vaccination of school children. It rejected Free Exercise challenges by Amish individuals and schools, finding, in part that the law was both neutral and generally applicable, and thus did not trigger heightened scrutiny. (See prior posting.) Courthouse News Service reports on the oral arguments.

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.

Monday, November 18, 2024

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.

Sunday, November 17, 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.]

Friday, November 15, 2024

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.]

Thursday, November 14, 2024

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.