Yeshiva Denied Preliminary Injunction Against Zoning Enforcement

In Anash, Inc., d/b/a Wyoming Valley Yeshiva v. Borough of Kingston, (MD PA, Dec. 19, 2024), a Pennsylvania federal district court refused to grant a preliminary injunction to an Orthodox Jewish Yeshiva whose property was condemned because it was being used for a school and dormitory in violation of zoning ordinances. The court concluded that plaintiff was not suffering irreparable harm, and that it was not likely that plaintiff would succeed on the merits of its challenge to the relevant zoning ordinance. The court said in part:

Plaintiffs also provide no support for their assertion that Rabbi Hellinger’s inability to access the Properties impairs his religious freedom, ability to act as a religious leader to others, or others’ freedoms. Defendants are not refusing to allow Rabbi Hellinger to practice his religion in any manner or gather with members of his congregation in any location other than the Properties.... Plaintiffs concede that they have been able to secure temporary alternative locations to gather to study Torah and engage in religious activities.... While Plaintiffs testified that the temporary or alternative locations do not allow for the same level of participation or consistency, the Court does not find that such imperfections show “irreparable harm.”...

Importantly, Plaintiffs have refused to engage in any sort of efforts to compromise or come to a resolution with the Borough....

The parties agree that the seminal issue for Plaintiffs’ religious discrimination claims, asserted under RLUIPA, the First Amendment, and the Equal Protection Clause, all require this Court to determine if Plaintiffs can show evidence that the Zoning Ordinance restricts their freedom of religion in some way, that Defendants’ actions were somehow motivated by animus, or that Plaintiffs were treated differently than similarly situated individuals based upon their religion.... Plaintiffs have not established any of these scenarios....

Plaintiffs can and have practiced their religion in alternative locations and may, but have not, apply for a variance to use the Properties as a school, dormitory, or house of worship.... There is no convincing evidence that Plaintiffs’ freedom of religion is legitimately burdened. Further, even if they had shown such evidence, the Zoning Ordinance is the least restrictive manner of furthering a compelling government regulatory interest in health and safety,... 

Ecclesiastical Abstention Doctrine Requires Dismissal of Pastor's Allegations of Sham Investigation to Oust Him

 In Weems v. Association of Related Churches, (MD FL, Dec. 19, 2024), a Florida federal district court dismissed on ecclesiastical abstention grounds a suit alleging tortious interference and conspiracy brought by Charles Weems, the former senior pastor and co-founder of Celebration Church and by his wife, the other co-founder. Plaintiffs allege that defendants hatched a plan to oust him as senior pastor because his vision for the church would lead to reduced financial contributions to defendant's church planting activities. Weems alleged that, based on manufactured evidence, the church initiated a sham investigation of him to determine if he had engaged in improper financial practices and had failed to fulfill his duties as Senior Pastor. Targeting of Weems eventually led to his resigning. The court said in part:

... [W]hile Plaintiffs frame their claims as tortious interference and conspiracy, these claims cannot be decided without resolving whether Celebration Church investigated Pastor Weems for legitimate religious reasons, or because of the tortious conduct of Defendants.... Such an inquiry would result in the Court entangling itself in matters of “theological controversy, church discipline, [and] ecclesiastical government,” which the ecclesiastical abstention doctrine squarely prohibits....

Indiana Supreme Court Lets Preliminary Injunction Against Abortion Ban When It Violates Religious Beliefs Stand

Last week, the Indiana Supreme Court, by a vote of 3-2, refused to review at this stage in the litigation a preliminary injunction entered by lower courts in a suit claiming that the state's Religious Freedom Restoration Act is violated when plaintiffs are prohibited by Indiana's abortion law from obtaining an abortion that their religious beliefs direct them to obtain. (See prior posting.) In Individual Members of the Medical Licensing Board of Indiana v. Anonymous Plaintiff 1, (IN Sup. Ct., Dec. 10, 2024), the Order denying the petition to transfer the case to the Supreme Court was not accompanied by a majority opinion. However, Justice Molter joined by Justice Rush filed a concurring opinion saying in part:

This case involves an unusual preliminary injunction—the trial court temporarily enjoined state officials from enforcing the State’s abortion law, but only for a particular group of women who are not pregnant and therefore are not seeking an abortion. The Court of Appeals concluded that the trial court didn’t exceed its discretion by entering a preliminary injunction while the case continues to be litigated. But the panel also directed the trial court to narrow the preliminary injunction on remand. So thus far, this case is not stopping the defendants from doing anything. And we don’t yet know if it ever will, including because the defendants may ultimately prevail in the lawsuit....

I conclude the more prudent course is for the Court to review the case after a final judgment rather than following a preliminary injunction, which remains a work in progress and subject to more deferential appellate review. In essence, it is better that we review the trial court’s final answer rather than its first guess....

Justice Slaughter, joined by Justice Massa, filed a dissenting opinion, saying in part:

Our denial of transfer means the trial court’s “final answer” will lack the benefit of our current thinking. By saying nothing, we may leave the misimpression that the injunction’s only vulnerability is its scope. As my colleagues acknowledge, this case “presents transfer-worthy issues with previously undecided questions of statewide importance”.

Indiana ACLU issued a press release announcing the decision.

Cert Granted on Whether Medicaid Beneficiary Can Challenge Cutoff of Funds to Planned Parenthood

The U.S. Supreme Court yesterday granted review in Kerr v. Planned Parenthood, (Docket No. 23-1275, certiorari granted 12/18/2024) on the question of whether individual Medicaid beneficiaries have a private right of action to enforce the Medicaid Act’s any-qualified provider provision. The case arises from a challenge to South Carolina's termination of Medicaid funding to Planned Parenthood. This was Question 1 presented by the petition for certiorari, the issue on which the Supreme Court granted review. Here is the SCOTUSblog case page with links to pleadings and briefs in the case.

Hospital Employee's Vaccine Objections Were Religious

In Lavelle-Hayden v. Employment Dept., (OR App., Dec. 18, 2024), an Oregon state appellate court held that a hospital respiratory therapist who was denied a religious exemption from the hospital's Covid vaccine requirement should receive unemployment benefits. It held that the state Employment Appeals Board's (EAB) conclusion that the employee's objection to the Covid vaccine was secular or personal in nature, rather than religious, was not supported by substantial evidence. The court said in part:

First, the EAB appears to have overlooked the Supreme Court’s injunction that tribunals ordinarily must refrain from assessing the plausibility of a claim of religious belief, and to have read the record with unreasonable parsimony in view of that standard....

Second, the EAB drew unreasonable inferences from the fact that claimant’s church declined to provide her a letter in support of her exemption request. The EAB inferred that “the fact that claimant’s own religious leader refused to provide a letter weighs to some extent against finding that claimant’s opposition to taking the vaccine was rooted in religion.” The EAB also inferred that the fact “that the leader told claimant it might be ‘too political to get involved’ supports an inference that when claimant asked for the letter, the religious leader regarded claimant’s objection to receiving a vaccine to be based on her political beliefs, not religion.”... But that reasoning ... presupposes that one’s religious beliefs and political beliefs are necessarily mutually exclusive....

... [T]here is no basis on which to sustain the denial of benefits that is consistent with the evidence and Free Exercise Clause.

Circuit Court Nominee Says Anti-Muslim Prejudice Derailed His Confirmation

On Monday, Adeel Mangi, President Biden's nominee to fill a vacancy on the U.S. 3rd Circuit Court of Appeals, submitted a letter (full text) to the President acknowledging that the Senate will not confirm his nomination. (See prior related posting.) Mangi would have been the first Muslim to sit on a federal Circuit Court.  In his lengthy letter, Mangi attributed his inability to obtain Senate confirmation largely to anti-Muslim prejudice. The letter reads in part:

I saw in America a country where I could succeed based on my professional skill, hard work, and character regardless of my faith or background....

When my nomination then came before the Senate Judiciary Committee, I was prepared to answer any questions about my qualifications, philosophy, or legal issues. I received none. Instead, I was asked questions about Israel, whether I supported Hamas, and whether I celebrated the anniversary of 9-11. Even more revealing, however, was the tone. The underlying premise appeared to be that because I am Muslim, surely I support terrorism and celebrate 9-11.....

The pretext for these questions was that I had agreed to serve on an outside advisory panel for an academic center that was being established at a preeminent New Jersey Law School to combat bigotry and discrimination, including Islamophobia....

After Jewish groups came to my defense, these same attackers pivoted focus to a new absurdity, claiming that I supported the killing of police officers -- silently underpinned, in my view, by the notion that as a Muslim I surely support violence, including against law enforcement....

Resurgent efforts after the election towards confirmation were derailed by the deal in the Senate that denied all circuit nominees a vote....

 American Muslims are part of this nation's fabric and will not cower. This campaign was intended to make it intolerable for Muslims proud of their identity to serve this nation. It will fail. Our Constitution forbids religious tests for any Office of the United States and American Muslims will cherish that fundamental American value, even if others apply it only selectively....

Pittsburgh Post-Gazette reports on these developments.

Justice Department Sues Georgia City for Violating RLUIPA

On Monday, the Justice Department filed a lawsuit in a Georgia federal district court against the city of Brunswick, Georgia, alleging that the city violated RLUIPA by attempting to shut down The Well, a hospitality and religious resource center for homeless individuals. The complaint (full text) in United States v. City of Brunswick, Georgia, (SD GA, filed 12/16/2024), alleges in part:

2. Through its campaign to shut down The Well, including a mandatory closure order and a nuisance lawsuit, Brunswick imposed a substantial burden on the religious exercise of FaithWorks, and of The Well’s staff and leadership, without a compelling interest and without using the least restrictive means of achieving that interest, in violation of RLUIPA....

52. Operating The Well is an expression of faith that is substantially burdened by the City’s efforts to permanently close The Well. FaithWorks, which runs The Well, is an extension of the Methodist Church, and providing basic services to the poor and unhoused individuals are cornerstones of FaithWorks’ religious practice. FaithWorks and The Well are led by Reverend Culpepper and his staff of Christian ministers. And at The Well, staff members offer the opportunity for prayer and religious study to those who are interested....

57. Even if a compelling interest was implicated, the City cannot show that shutting down The Well or forcing FaithWorks to adopt new religious leadership is the least restrictive means of achieving the City’s purported interest. The City cannot show that shutting down The Well is necessary to protect safety, particularly when The Well has already adopted procedures that have addressed the City’s purported safety concerns, and has successfully operated under those procedures for over a year.

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

Montana Supreme Court Upholds Preliminary Injunction Against Ban on Gender Affirming Care for Minors

In Cross v. State of Montana, (MT Sup. Ct., Dec. 11, 2024), the Montana Supreme Court upheld a trial court's preliminary injunction against enforcement of Montana's ban on medical or surgical treatment of minors for gender dysphoria.  The court said in part:

 ¶37 The statute’s impact on individual privacy rights triggers strict scrutiny review, which requires the State to demonstrate that “the legislation [is] justified by a compelling state interest and [is] narrowly tailored to effectuate only that compelling interest.” ...  Though the State has a compelling interest in “safeguarding the physical and psychological wellbeing of a minor,” a statute implicating their privacy rights must be narrowly tailored to serve that interest....  SB 99 affords no room for decision-making by a patient in consultation with their doctors and parents.  The statute is a complete ban, prohibiting individualized care tailored to the needs of each patient based on the exercise of professional medical judgment and informed consent.  

¶38 At this stage of the proceedings, the District Court conscientiously weighed the parties’ evidence.... Our role is not to reweigh conflicting evidence or to question a district court’s assessment of the strength of the evidence on a preliminary injunction appeal....

Justice McKinnon, joined by Justice Gustafson, filed a concurring opinion, saying in part:

I write separately because I believe Plaintiffs’ equal protection claim should likewise be addressed by the Court.

Justice Rice dissented in part, saying in part:

¶68 I concur with the Court’s holding affirming the District Court’s entry of a preliminary injunction enjoining SB 99’s medical restrictions.  A legislative prohibition of an approved medical procedure must satisfy the high bar of being narrowly tailored to serve a compelling state interest in addressing a bona fide health risk....

 ¶69 However, it should also be noted that both the medical and legal grounds regarding the subject treatment of minors addressed by SB 99 are moving under our feet, and the status quo itself is becoming a moving target, even as this litigation continues....

¶70 I would reverse the District Court’s enjoinder of the funding prohibition of SB 99...

Daily Montanan reports on the decision.

Recent Articles of Interest

From SSRN:

• Steven Douglas Smith, We Hold . . . What Truths? Further Reflections on the American Proposition, (Rice-Hasson Lecture, Delivered at Notre Dame Law School, November 1, 2024).
• Andrew C. Michaels, Ayahuasca and Religious Freedom, (October 15, 2024).
• Raphael Cohen-Almagor, Coercion by the Orthodox Minority in Israel, (October 28, 2024).
• Catherine E. Smith, Tanya Washington & Suzette Malveaux, Brief of Amici Curiae Scholars for the Advancement of Children’s Constitutional Rights in Support of Defendant-Appellees in St. Mary v. Roy, (October 24, 2024).
• Mark V. Tushnet, Some Thoughts About Free Speech and Hostile Environment Discrimination on College Campuses, (October 16, 2024).
• Bernard M. Levinson, In Memoriam Norbert Lohfink SJ (28 July 1928-23 September 2024), (Society of Biblical Literature In-Memoriam Archive (2024)).

From SSRN (Islamic Law):

• Ali Rod Khadem, Islamic Apocalyptic Justice, (Islamic Law and Society, Vol. 31, No. 3, p. 260 (2024)).
• A.B.M. Asrafuzaman & Mohammad Golam Sarwar, Recent Trends of Judicial Activism for the Advancement of Muslim Family Laws in Bangladesh: A Critical Appraisal, (September 12, 2020).
• Eleni Polymenopoulou, Sharia and Human Rights Law in the Constitutional Framework of Gulf States, (May 01, 2023).
• Zeeshan Rais Khattak, Examining Conditions of Maṣāliḥ Mursalah Fulfilling the Higher Objectives of Islamic Law (Maqāṣid al-Sharīʿah) in the Modern Age, (June 20, 2022).
• Rauf Iqbal, Muhammad Asghar Shazad, Abbas Abbas & Muhammad Akmal, Determinants of Performance of Insurance Companies having Window Takāful Operations in Pakistan, (Manchester Journal of Transnational Islamic Law & Practice, Vol 20, Issue 3, 2024).
• Madhushka Kannangara, The Transition from LIBOR to RFRs: Implications on Islamic Banking and Finance (May 23, 2024).

SNAP Work Requirement Did Not Violate Free Exercise Rights of Plaintiff's Adult Children

In Light v. Missouri Department of Social Services, (WD MO, Dec. 12, 2024), a Missouri federal district court dismissed a suit challenging the removal of plaintiff's four adult children from the SNAP (food stamp) program because they failed to comply the requirement to register for work and accept suitable employment offers.  According to the court:

Plaintiff alleges that participation of her four adult children in the SNAP work program is against their sincerely held beliefs under the Holy Bible New Testament KJV. Specifically, Plaintiff alleges that the work registration and training requirements would cause her children to give up their time to an employer placing them under ownership, and be placed in a position of a servant....

Plaintiff does not cite, and the Court has not found, any indication where the SNAP work and training requirements are not generally applicable. 

If a law is neutral and generally applicable courts will apply a rational basis review.... Courts uphold a valid and neutral law of general applicability if it is rationally related to a legitimate governmental purpose even if there is an incidental effect on religious belief.... SNAP was established to raise levels of nutrition among low-income households. To be eligible for the program both households and individuals had to adhere to certain eligibility requirements. This is a rationally related law to a legitimate government purpose of raising levels of nutrition among low-income households....

Supreme Court Grants Review of Wisconsin's Denial of Unemployment Comp Exemption for Catholic Charities

Yesterday, the U.S. Supreme Court granted review in Catholic Charities Bureau, Inc. v. Wisconsin Labor Review Commission, (Docket No. 24-154, certiorari granted 12/13/2024). (Order List). In the case, the Wisconsin Supreme Court by a vote of 4-3 held that Catholic Charities Bureau and four of its sub-entities are not entitled to an exemption from the state's unemployment compensation law. (See prior posting.) Catholic Charities' petition for certiorari asks the Supreme Court to decide if Wisconsin violated the 1st Amendment's religion clauses when it held that Catholic Charities activities are primarily charitable and secular so that the statutory religious organization exemption is not available to it. The SCOTUSblog case page has links to the pleadings and briefs filed in the case.

India's Supreme Court Orders Stay While It Considers Constitutionality of Place of Worship Act

The Hindu reports on a controversial Order issued yesterday by India's Supreme Court. The Order bars lower courts from accepting new lawsuits or entering orders in pending suits in which Hindu plaintiffs are attempting to reclaim temples destroyed by the Mughal Empire in the 16th century. Eighteen suits involving ten Muslim religious shrines are pending in lower courts. In 1991, India's Parliament passed the Place of Worship Act which prohibits the conversion of any place of worship into a place of worship for a different religion and provides that "the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day." The Supreme Court is currently considering the constitutionality of the Place of Worship Act. It Order is designed to prevent a race in which lower courts attempt to issue orders ahead of the Supreme Court's ruling on the 1991 law. According to The Hindu:

Recently, Chief Justice Khanna’s Bench had to intervene after violence broke out and lives were lost in Sambhal following a local court order to survey the Shahi Jama Masjid site. The civil judge had passed an order on the basis of a suit that the mosque was built on a temple demolished by Mughal emperor Babar in 1526.

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.

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.

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.

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.

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.

Recent Articles of Interest

From SSRN:

• Conor Casey, Natural Law, Practical Reasoning, and Legal Interpretation in 'Natural Law and Modern Society', (Forthcoming, Jurisprudence, 2025).
• Caroline Mala Corbin, Regulating LGBTQ Speech in the Classroom, (24-19 Knight First Amend. Inst. (Oct. 25, 2024)).

From SSRN (Abortion Rights):

• Catherine Dowd, Where There's a Will. There's a Way: Abortion Litigation in the States, (Northeastern University School of Law Research Paper No. 484 (2024)).
• Dr. Tania Penovic, Exporting the American Playbook: The International Reach of the US Anti-Abortion Movement, (January 30, 2024).
• Stephen Gilles, Federal Free-Exercise Challenges to Restrictive Abortion Laws, (37 Regent University Law Review, Issue 2 (2025), forthcoming).
• Alyssa Curcio, Immunizing Roe: How Court Treatment of COVID-19 Vaccine Mandates Supports Reproductive Freedom, (Columbia Journal of Gender and Law, volume 43, issue 1, 2023).
• Deborah Machalow, Terminating Democracy: The Antiabortion Movement's Attempted Subversion of Direct Democracy Since Dobbs, (October 08, 2024).
• Michael L. Smith, Dignity and Abortion Rights Under State Constitutional Law, (75 Syracuse L. Rev. (Forthcoming 2025)).
• Guha Krishnamurthi, Abortion Regulation and Chilling from Extremists, (October 13, 2024).

From SSRN (non-U.S. Law):

• Rasham Armab Saikhu, Zakat Exemptions under Pakistani Law: An Analysis of Case Laws, (March 01, 2024).
• Hamed Hikmany & Abdul-Nasser Hikmany,  East African Reforms and the Future Stake of Muslims, (TIJER || November 2023, Volume 10, Issue 11).
• Haroun Rahimi & Faiza Muhammad Din, Female Madrasas & Islamic Agency of Afghan Women (November 04, 2024).
• Oonagh B. Breen, Niamh Carruthers, Niall O’Sullivan & Patricia Quinn, Philanthropy in Ireland, (UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 11 (2024).

From SmartCILP:

• Christopher R. Green, Citizenship and Solicitude: How to Overrule Employment Division v. Smith and Washington v. Davis, 47 Harvard Journal of Law & Public Policy 465-506 (2024).
• Bari Weiss, Barbara Olson Memorial Lecture. You Are the Last Line of Defense, 47 Harvard Journal of Law & Public Policy 289-308 (2024).
• James deBoer, Dispelling the RFRA Shibboleth: Affirming Religious Freedom and Expressive Rights, 38 Wisconsin Journal of Law Gender, & Society 192-267 (2023).

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.

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.]

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.

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.

Recent Articles, Books, and Podcasts of Interest

From SSRN:

• John Witte, The Richard O'Sullivan: Memorial Lecture A New Great Awakening of Religious Freedom in America, (Law & Justice, 2023).
• Raphael Cohen-Almagor, Coercion by the Orthodox Minority in Israel, (February 16, 2022).
• James Toomey, Introduction—Bioethics After Dobbs, (45 Pace Law Review 1 (2024)).

From elsewhere:

• Special Issue, Reevaluating the Norms of Law and Governance in Islamic Legal History, Journal of Islamic Law, Vol. 5, No. 1 (Spring 2024).
• Special Issue, Scholarly Debates: Moving Past Structural Death, Journal of Islamic Law, Vol. 4, No. 1 (Spring 2023).

Recent Podcasts:

• America Trends Podcast, Some Red States Putting Religion Back in Schools, (with Prof. Ira Lupu), (Nov. 25, 2024).

Recent Books:

• Daniela Berti & Anthony Good, Animal Sacrifice, Religion and Law in South Asia, (Routledge, Nov. 2024).
• Matteo Corsalini, Business, Religion and the Law-- Church and Business Autonomy in The Secular Economy, (Routledge, Aug. 2024),
• Jelle Creemers & Tatiana Kopaleishvili  Religious Freedom and COVID-19-- A European Perspective, (Routledge, Aug. 2024).
• Mareike Riedel, Law and Jewish Difference: Ambivalent Encounters, (Cambridge University Press, Nov. 2024).
• David Hollenbach, Human Rights in a Divided World, (Georgetown University Press, July 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.]

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.

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.

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.

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.

Recent Articles of Interest

 From SSRN:

• Caroline Mala Corbin, Regulating LGBTQ Speech in the Classroom, (24-19 Knight First Amend. Inst. (Oct. 25, 2024)).
• Seval Yildirim, Populist Secularism, (Minnesota Journal of International Law 39 (2024)).
• Jack Fiander, Apache Stronghold versus United States of America; a Ninth Circuit U.S. Court of Appeals Aberration, (October 27, 2024).
• Kyron Huigens, Theistic Illiberal Constitutionalism: A Review of Adrian Vermeule’s Common Good Constitutionalism, (63 U. Louisville L. Rev. 1 (2024).
• Lloyd Hitoshi Mayer, Are Nonprofit Tax Exemptions And Deductions 'Federal Financial Assistance'?, (October 31, 2024).
• Anthony Michael Kreis, Sex and Control in Redeemer Georgia, (41 Ga. St. U. L. Rev. (forthcoming 2025)),
• Kurt Lash & Stephanie H. Barclay, 'A Crust of Bread': Religious Resistance and the Fourteenth Amendment, (November 13, 2024).
• Quinn Yeargain, The Right to Health Care Freedom in State Constitutions, (93 UMKC L. Rev. (forthcoming 2024-25)).

From SSRN (Non-U.S. Law):

• Prithivi Raj, Judicial Stewardship of Secularism and Religious Sentiments in India: A Comprehensive Examination, (May 01, 2023).
• Yueduan Wang, Render unto Caesar: Strategic Avoidance in Chinese Courts, (International Journal of Constitutional Law (Forthcoming)).

From SmartCILP and elsewhere:

• Journal of Law and Religion, Vol. 39, Issue 2 (2024).
• Symposium, Building LGBTQ+ Inclusive Legal Systems, 34 Indiana International and Comparative Law Review 1 (2024).
• Wayne Batchis, The Discriminatory Religion Clauses, 97 Southern California Law Review 367-416 (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.

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.

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."

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.

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.]

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.