Harvard Settles Suit Charging Antisemitism in Violation of Title VI

The Brandeis Center for Human Rights Under Law issued a press release yesterday announcing that a settlement agreement has been reached in a suit filed last May against Harvard University charging Harvard with tolerating antisemitic bullying, harassment, and discrimination aimed at Jewish and Israeli students in violations of Title VI of the 1964 Civil Rights Act. An email from Harvard Hillel summarizes the settlement:

Adoption of the IHRA definition of antisemitism for purposes of discipline;

Explicitly recognizing Zionism as a protected category under the university’s non-discrimination policy;

A dedicated position for antisemitism complaints and reporting;

Annual public reporting on antisemitism-related cases and their outcomes for at least five years (including retrospective to October 1, 2023);

Mandatory outside training for staff reviewing antisemitism complaints;

Expanded academic programming on anti-Semitism;

Partnerships with an Israeli University and with the Brandeis Center.

Trump Executive Order Reverses Agency Policies Protecting Transgender Individuals

Yesterday President Trump signed an Executive Order titled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (full text). The Executive Order seeks to eliminate the recognition of transgender individuals in federal agency policies interpreting antidiscrimination provisions.  The lengthy Executive Order provides in part:

Across the country, ideologues who deny the biological reality of sex have increasingly used legal and other socially coercive means to permit men to self-identify as women and gain access to intimate single-sex spaces and activities designed for women, from women’s domestic abuse shelters to women’s workplace showers.  This is wrong.  Efforts to eradicate the biological reality of sex fundamentally attack women by depriving them of their dignity, safety, and well-being.  The erasure of sex in language and policy has a corrosive impact not just on women but on the validity of the entire American system.  Basing Federal policy on truth is critical to scientific inquiry, public safety, morale, and trust in government itself.

This unhealthy road is paved by an ongoing and purposeful attack against the ordinary and longstanding use and understanding of biological and scientific terms, replacing the immutable biological reality of sex with an internal, fluid, and subjective sense of self unmoored from biological facts.  Invalidating the true and biological category of “woman” improperly transforms laws and policies designed to protect sex-based opportunities into laws and policies that undermine them, replacing longstanding, cherished legal rights and values with an identity-based, inchoate social concept....

It is the policy of the United States to recognize two sexes, male and female.  These sexes are not changeable and are grounded in fundamental and incontrovertible reality....

Agencies shall remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages....

 The prior Administration argued that the Supreme Court’s decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act.  This position is legally untenable and has harmed women.  The Attorney General shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities....

School's Transgender Policy Does Not Violate Teacher's 1st Amendment Rights

In Polk v. Montgomery County Public Schools, (D MD, Jan. 17, 2025), a public-school substitute teacher alleged that a Maryland school system violated her free exercise and free speech rights when it insisted that she affirm Guidelines on dealing with transgender students. The Guidelines required her to refer to students by their preferred pronouns and barred them from discussing a student's gender identity with the student's parents without the student's consent. Plaintiff insisted that the Guidelines conflict with her religious beliefs. She also contended that under Title VII she is entitled to a reasonable accommodation of her beliefs. The court dismissed plaintiff's free exercise claim, finding that the Guidelines are neutral and generally applicable. It dismissed her free speech claim because the speech required by the Guidelines are part of plaintiff's official duties as a teacher. The court however, while refusing to issue a preliminary injunction, permitted plaintiff to move ahead on her Title VII failure to accommodate claim against the school board saying that the Board's undue hardship defense should be raised at the summary judgement stage of the proceedings rather than on a motion to dismiss.

Suit Challenges Wisconsin Tax Exemption as Violation of State Constitution's Ban on Preference to Religious Establishments

Suit was filed last week in a Wisconsin state trial court by the Freedom from Religion Foundation and three individual property owners challenging a Wisconsin property tax exemption tailored to only benefit two apartment buildings serving students at the University of Wisconsin-Madison. The buildings are owned by the Presbyterian Student Center Foundation and by a Catholic parish. The complaint (full text) in Gaylor v. City of Madison, (WI Cir. Ct., filed 1/14/2025), alleges that the exemption violates the equal protection and uniformity clauses of the Wisconsin state constitution, the state constitution's provision on private bills and the prohibition in Article I, section 18 of the Wisconsin Constitution which prohibits legislation that gives a preference to any religious establishment or mode of worship. Christian Post reports on the lawsuit.

Trump Designates New Acting Chair of EEOC

In one of the first actions taken after he was sworn in as President, Donald Trump designated new Chairmen and Acting Chairmen of 15 federal agencies. Among these was the designation of EEOC Commissioner Andrea R. Lucas to be Acting Chair of the Equal Employment Opportunity Commission. She replaces Charlotte A. Burrows who will remain a member of the Commission. The EEOC adjudicates claims of employment discrimination, including religious discrimination in employment.

6 Clergy Will Offer Prayers at Trump Inauguration Today

Donald Trump's inauguration as President begins at 11:30 AM Eastern Time today. The ceremony includes prayers offered by clergy from a variety of faiths. According to CBS News, opening invocations will be delivered by Timothy Cardinal Dolan, the Archbishop of New York and Christian evangelist Rev. Franklin Graham.

The ceremony will conclude with benedictions offered by four clergymen: Rabbi Dr. Ari Berman, president of Yeshiva University; Imam Husham Al-Husainy, a founder of the Dearborn, Michigan Karbalaa Islamic Education Center;  Pastor Lorenzo Sewell of 180 Church in Detroit, Michigan; and the Rev. Father Frank Mann of the Roman Catholic Diocese of Brooklyn, New York.

The inauguration ceremony will be streamed live by numerous news organizations, including PBS News livestream beginning at 10:30 AM Eastern Time.

Suit Challenges Federal Agency Rule Changes Protecting Against Gender Identity Discrimination

Suit was filed last week in a Louisiana federal district court challenging rule changes interpreting five federal statutes. Defendants are HHS, Department of Agriculture, EEOC and the Department of Justice. The rule changes define sex discrimination and sexual harassment as including discrimination or harassment on the basis of gender identity and define gender dysphoria as a disability. The complaint (full text) in Rapides Parish School Board v. U.S. Department of Health and Human Services, (WD LA, filed 1/17/2025), contends that the rule provisions are not authorized by the various statutes being implemented, are arbitrary and capricious and violate the Spending Clause of the Constitution. It also alleges that various of the rule provisions compel speech in violation of the First Amendment and are unconstitutionally vague. ADF issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

 From SSRN:

• Evangelos Venizelos, Religious Freedom for Muslims: A Challenge to the Historical Foundations and Resilience of European Constitutionalism, (June 15, 2023).
• Gader Wren, A Continued Sign of the Court’s Unwillingness to Overrule Smith, 7 Nev. L.J. Forum (2023).
• Gader Wren, The Establishment Clause: No Longer a Lemon, (100 U. Det. Mercy L. Rev. Online 1 (2023)).
• Gader Wren, Dobbs: A Powerful Opinion with Discrete Weaknesses, (Idaho Law Review Spotlight, Vol. 2 (2023), Iss. 1, Art. 2).
• Kate Redburn, The Equal Right to Exclude: Religious Speech and the Road to 303 Creative LLC v. Elenis, (December 18, 2023).
• Natasha Bakht & Lynda Margaret Collins, Notwithstanding the Notwithstanding Clause: A Case for Constitutional Guardrails on Section 33 of the Charter of Rights and Freedoms, (November 21, 2024).
• Carl H. Esbeck, Church Autonomy, Textualism, and Originalism: SCOTUS's Use of History to Give Definition to Church Autonomy Doctrine, (108 Marquette Law Review (forthcoming 2025)).
• Mark Storslee, History and the School Prayer Cases, (110 Va. L. Rev. 1619 (2024)).
• John Witte, Table Talks on Law & Religion, Canopy Forum, 2024 (forthcoming).
• John Witte, “Foreword,” to Walters-Sleyon, The Rush for Black Diamonds, (forthcoming).
• Jeffrey A. Van Detta, Heresies, Heretics, and Hermeneutics: The Battle of Textualism Against Pragmatism-And Itself-On the Roberts Court, (Belmont University College of Law Research Paper No. 2024-15).

From SSRN (Christian, Jewish, Buddhist and Islamic Law):

• Amit Kumar Ghosh, Tantric Union of Male and Female in Vajrayana, (November 25, 2024).
• Haseeb Fatima Saikhu, Inheritance Rights of Orphaned Grandchildren under Section 4 of Muslim Family Law Ordinance, 1961 and its Alternative Solutions, (Law and Policy Review, Volume 3, No. 2, Pp.21–42 (2024).
• Christopher Hampson, The Spirit of Jubilee, (University of Florida Levin College of Law Research Paper Forthcoming).
• John Witte, The Oxford Handbook of Christianity and Law, (Canopy Forum, 2024).
• Johari, et. al., The Role of Temporary Waqf in Improving the Social Welfare of the Muslim Community (November 26, 2024).
• Ihsan, Hidayatul Ihsan, et. al., Factors Affecting the Motivation of Prospective Waqifs to Endow Insurance in Indonesia, (International Journal of Scientific and Management Research, volume 07, issue 11, 2024).
• Hidayatul Ihsan, Firman Surya, Eliyanora & Nurul Hafizah, A Digital Transformation in Waqf Management: Leveraging Microsoft Access for Financial Accountability, (International Journal of Scientific and Management Research, volume 07, issue 11, 2024).

National Guard Officer Sues After Dismissal for His Religion-Based Anti-LGBTQ Views

Suit was filed last week in an Idaho federal district court by an Idaho National Guard officer who was removed from a command position that he had just assumed because of his Christian religious views on sexuality that he had expressed during his previous campaigns for mayor and state senator. The complaint (full text) in Worley v. Little, (D ID, filed 1/17/2025), reads in part:

74. The Investigating Officer stated, in his findings, that Major Worley had “well documented discriminatory views against the LGBTQ community” that “suggest an inability to uphold the values of equality, respect, and impartiality expected of a company commander.”...

75.... In addition to his unconstitutional and unconscionable findings as it relates to Major Worley’s religious beliefs, views, expression, and exercise, the Investigating Officer also recommended to Defendants that they institute a “No Christians in Command” Policy. ...

The complaint alleges that this violates plaintiff's free speech, free exercise and equal protection rights.

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

Cert. Granted on Whether Opt-Out is Required When Parent Objects on Religious Grounds to Public School Curricular Material

Yesterday the U.S. Supreme Court granted review in Mahmoud v. Taylor, (Docket No. 24-297, certiorari granted 1/17/2025). (Order List.) The question presented to the Court in the Petition for Certiorari is:

Do public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out?

In the case, the Montgomery County, Maryland Board of Education adopted certain LGBTQ-Inclusive Books as part of a larger array of books for use by English Language Arts teachers. An initial arrangement allowing parents to opt their children out of exposure to these books was ended by the Board.

The U.S. 4th Circuit Court of Appeals in a 2-1 decision held that a free exercise violation occurs only when there is some sort of direct or indirect pressure to change religious beliefs or conduct, and that mere presence in the classroom when these materials may be read does not create that kind of coercion. (See prior posting.) 

CBS News reports on the Court's action.

United Nations Releases Plan to Respond to Antisemitism

Today the High Representative for the United Nations Alliance of Civilizations announced the launch of the United Nations Action Plan to Enhance Monitoring and Response to Antisemitism. The Action Plan (full text) sets out a list of steps that the United Nations itself should take to combat antisemitism.  It also sets out recommendations to governments, international organization and non-state actors. The 22-page Plan says in part:

Antisemitism is a global challenge that requires a coordinated global response. The United Nations cannot stamp-out the scourge of antisemitism and other forms of discrimination and bigotry alone. State and non-state actors including civil society organizations, faith actors, social media companies, educators and many others, each have a role to play. In an interconnected world, where hate respects no borders, transnational cooperation can identify threats, raise awareness, broaden the use of best practices, and more effectively and proactively coordinate responses.

2 Reports Survey the State of Religious Liberty in the U.S. in 2024

Two broad reviews of the state of religious liberty in the United States were released yesterday. Becket Fund for Religious Liberty released the 6th edition of its Religious Freedom Index: American Perspectives on the First Amendment (full text). The 119-page report is based on an online poll of a nationally representative sample of 1000 American adults conducted by an independent research company. The report says in part:

The survey consists of 21 annually repeating questions that cover a broad range of topics, from the rights of religious people to practice their respective faiths to the role of government in protecting religious beliefs. The responses to these questions are broken down into six dimensions: 1) Religious Pluralism, 2) Religion and Policy, 3) Religious Sharing, 4) Religion in Society, 5) Church and State, and 6) Religion in Action....

 Across multiple questions in our Index, one message rings loud and clear: Americans deeply value their First Amendment freedoms, even in the face of tough, controversial issues....

We are pleased to report that political division did not seem to negatively impact Americans’ convictions about the importance of religion and religious liberty....  Americans also report being more accepting of people of faith and more appreciative of their contributions than ever before. Encouragingly, both people of faith as a whole and non-Christian people of faith reported feeling more accepted in society than in 2023.

The U.S. Conference of Catholic Bishops yesterday released its 2025 annual report on The State of Religious Liberty in the United States (full text) (Executive Summary). The 83-page Report, which reviews developments at the national level in 2024 in Congress, the Courts and the Executive Branch, says in part:

... [B]ecause control of the two chambers of Congress was divided, most bills that threatened religious liberty—that is to say, immunity from coercion in religious matters—did not move forward. Legislation aiming to increase access to in vitro fertilization (IVF) was introduced in 2024. The most significant threats to religious liberty at the federal level came in the form of finalized regulations by federal agencies, such as the Section 1557 rule, which implements the nondiscrimination provision of the Affordable Care Act (ACA). These rules heavily focused on imposing requirements regarding abortion, sexual orientation, and gender identity....

The five areas of critical concern—threats and opportunities—for religious liberty are:

• The targeting of faith-based immigration service

• The persistence of elevated levels of antisemitic incidents 

• IVF mandates, which represent a significant threat to religious freedom, while the national discussion of IVF represents an opportunity for Catholics to share Church teaching and advocate for human dignity

• The scaling back of gender ideology in law

•  Parental choice in education, one of the longest-running areas of concern for American Catholics

Court Dismisses Some Challenges To ED Rule Protecting Student Religious Organizations

In Secular Student Alliance v. U.S. Department of Education, (D DC, Jan. 15, 2025), plaintiffs challenged a rule promulgated by the Department of Education in 2020. The rule prohibits universities receiving Education Department grants from denying any student religious organization any right, benefit or privilege available to secular groups because of the religious organization's "beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs." The D.C. federal district court dismissed two of plaintiff's claims: that the rule was ultra vires agency action and that it was in excess of the agency's statutory authority under the Administrative Procedure Act. The court held that a "sense of Congress" provision in 20 USC §1011a which says that no college student should be excluded from participation in any activity because of the student's protected speech or association, does not impose a limitation on the Department's rulemaking. The court said that the phrase is "a suggestive guideline, rather than a mandatory limitation...." The court left open to still be decided "whether the Rule is arbitrary and capricious, an abuse of the agency discretion, or otherwise not in accordance with law...." ADF issued a press release commenting on the decision.

Today Is Religious Freedom Day

President Biden has issued a Proclamation (full text) declaring today as Religious Freedom Day, the anniversary of the adoption by Virginia in 1786 of the Statute of Religious Freedom. The President's Proclamation reads in part:

We are all blessed to live in a Nation that is home to people of many faiths.  However, even in our land of liberty, too many people are afraid that practicing their faith will bring fear, violence, and intimidation.  Over the past year, we have seen a shocking rise in antisemitism in the wake of Hamas’s terrorist attack against Israel and a disturbing rise in Islamophobia.  Hate has no safe harbor here in America.  And around the world, minority communities continue to live in fear of violence and are denied equal protections under the law, including Christians in some countries.

My Administration is committed to ensuring that people of every faith and belief can live out their deepest conviction freely, peacefully, and safely....

Today, we recognize how religious freedom is at the core of who we are as a Nation. It is central to the freedom we offer all Americans. And it is threaded throughout all our work to advance human freedom and dignity in the world.

Secretary of State Anthony Blinken also issued a Statement (full text) marking the occasion, saying in part:

The United States’s dedication to the freedom of religion or belief continues uninterrupted.  Over the past four years, the United States has worked tirelessly to secure this right for everyone around the world.  These efforts include: documenting religious freedom conditions in every country....; declaring the actions of members of the Burmese military against Rohingya to be genocide and crimes against humanity; expanding to over 40 countries the International Freedom of Religion or Belief Alliance....

The United States has also expanded diplomatic efforts to advance freedom of religion or belief through the UN, the Article 18 Alliance, the International Contact Group, and in close coordination with partner countries.  These efforts helped secure the release of religious prisoners of conscience in Nicaragua, the People’s Republic of China, Nigeria, Iran, Somalia, Vietnam, and elsewhere around the world.

Christian Employers Sue EEOC Over Transgender Rights and Abortion Mandate

Suit was filed yesterday in a North Dakota federal district court challenging two EEOC actions. The complaint (full text) in Christian Employers Alliance v. U.S. Equal Employment Opportunity Commission, (D ND, filed 1/15/2025) alleges in part:

First, the Equal Employment Opportunity Commission (EEOC) has improperly applied Title VII of the Civil Rights Act of 1964 to force employers to affirm and accommodate employees’ gender-transition efforts.... This mandate, published in agency “guidance” and on its website, threatens employers with large penalties if they do not use employees’ self-selected pronouns based on gender identity, and if they do not allow males to access female single-sex restrooms, locker rooms, and lactation rooms.

Second, EEOC issued a final rule that twists the Pregnant Workers Fairness Act (PWFA).... , a statute intended to protect pregnant mothers in the workplace, to impose a nationwide abortion mandate forcing employers to promote and facilitate elective abortion....

The suit alleges that these mandates from the EEOC violate the free exercise and free speech rights of members of the Christian Employers Alliance.

Texas Supreme Court Hears Arguments on State Closure of Catholic Agency Serving Migrants

On January 13, the Texas Supreme Court heard oral arguments (video of full oral arguments) in Paxton v. Annunciation House, Inc. (Links to documents and briefs in the case.) At issue is an attempt by the Texas Attorney General to shut down Annunciation House, a Catholic agency serving migrants and refugees in El Paso. The Attorney General claims that the agency is sheltering migrants who have entered the country illegally. A Texas state trial court held that Texas statutes which bar harboring migrants to induce them to stay illegally in the U.S. are pre-empted by federal law and cannot be used as the basis for a quo warranto action to revoke the agency's registration to operate in Texas. Also at issue is the state's subpoena for records of Annunciation House. (See prior posting.) Annunciation House contends that the attempt to close it down violates the Texas Religious Freedom Restoration Act. Reform Austin reports on the oral arguments.

No Qualified Immunity Defense to RFRA Claim Is Available

In Swanson v. Flores, (SD CA, Jan. 6, 2025), a California federal district court refused to dismiss a suit for damages brought under the Religious Freedom Restoration Act by plaintiff who was a civilian employee of the Marine Corps against her former supervisor. She contends that defendant first ordered her to stop her faith-based discussions with coworkers in her office. Subsequently he ordered her to remove a Bible and religious calendar that she kept on her desk. Plaintiff contends that she maintains her religious beliefs by sharing them with others who have similar religious views and that these orders substantially burdened her ability to practice her sincerely held religious beliefs. The court held that plaintiff sufficiently stated a claim for relief.

The court also rejected defendant's claim of qualified immunity, saying in part:

With no binding authority, this Court finds that the only RFRA defense Congress intended is that stated in the statute, i.e., the defense that the government was acting to further a compelling interest and was doing so by the least restrictive means.

Brooklyn Yeshivahs File Title VI Complaint with U.S. Department of Education

Four Orthodox Jewish yeshivah elementary schools in Brooklyn, New York, have filed a complaint (full text) with the U.S. Department of Education Office of Civil Rights contending that New York City and state Education Departments are discriminating against them in violation of Title VI of the 1964 Civil Rights Act. The complaint (filed Jan. 13) alleges in part:

In 2022, New York adopted regulations that require private schools to undergo “substantial equivalency” reviews. Those reviews are now being used as cover to discriminate against Complainants. Specifically, New York is engaged in the following unlawful conduct: 

Targeting Jewish Studies curricula for disfavored and discriminatory treatment;

Prohibiting Yeshivas from providing dual-language instruction;

Forcing Yeshivas to require students to read texts from reading lists it approves;

Interfering with Yeshivas’ constitutional autonomy to select their faculty;

Refusing to respect cultural and religious classroom norms of the Yeshivas. 

To be clear, Complainants are not challenging the 2022 regulations here.  None of New York’s discriminatory practices and conduct is condoned by those regulations, let alone required by them.  Rather, New York is using the leverage it thinks it has as a result of conducting those reviews to impose its secular views on these Jewish schools. When the nanny state and the secular state converge, it is no surprise that government finds no value in Jewish education and no regard for the educational choices that parents make for their children.

Jewish News Syndicate reports on the complaint.

9th Circuit: Police Department's LGBTQ Outreach Was Government Speech That Did Not Violate 1st Amendment

In Sangervasi v. City of San Jose, (9th Cir., Jan. 14, 2025), the U.S. 9th Circuit Court of Appeals affirmed a California federal district court's denial of a preliminary injunction sought by a police officer who objected to the police department's authorizing officers to wear an LGBTQ Pride uniform patch and to the raising of a Pride flag at police headquarters.  Plaintiff wanted to create other uniform patches and flag designs featuring Christian or anti-LGBTQ themes. His proposal was denied and he was placed on indefinite administrative leave. He sued, claiming violation of his equal protection, free speech and free exercise rights. The court said in part:

The district court properly dismissed Sangervasi’s free speech and free exercise claims because Defendants were engaging in government speech and Sangervasi was speaking as a government employee....  The district court properly dismissed Sangervasi’s equal protection claims because he failed to allege facts demonstrating a discriminatory intent.

Suit Challenges State Grant to Catholic College

Suit was filed this week in a West Virginia state trial court challenging a $5 million grant made by the West Virginia Water Development Authority to a Catholic college located in Ohio just across the Ohio River from West Virginia. The grant largely supports projected projects in West Virginia or the education of West Virginia students. The suit alleges that the grant violates the West Virginia state constitution's Establishment Clause.  The complaint (full text) in American Humanist Association v. West Virginia Water Development Authority, (WV Cir. Ct., filed 1/13/2025), alleges in part:

28.  Through the awarding of this grant, the State of West Virginia, through the West Virginia Water Development Authority, requires taxpayers to fund the work of this Catholic Institution, which states “the mission of St. Joseph the Worker is to serve the Church and to serve our country through providing our society with such workers.” 

29.   In so doing, the State of West Virginia has impermissibly violated the anti-establishment provision of the State Constitution guaranteeing the right to freedom of religion. 

ACLU of West Virginia issued a press release announcing the filing of the lawsuit.

Biden Awards Medal of Freedom with Distinction to Pope Francis

Last Saturday, the White House announced that President Biden has awarded the Presidential Medal of Freedom with Distinction to Pope Francis. The Citation reads:

As a young man, Jorge Bergoglio sought a career in science before faith led him to a life with the Jesuits. For decades, he served the voiceless and vulnerable across Argentina. As Pope Francis, his mission of serving the poor has never ceased. A loving pastor, he joyfully answers children’s questions about God. A challenging teacher, he commands us to fight for peace and protect the planet. A welcoming leader, he reaches out to different faiths. The first pope from the Southern Hemisphere, Pope Francis is unlike any who came before. Above all, he is the People’s Pope – a light of faith, hope, and love that shines brightly across the world.

Earlier this month, Biden awarded the Medal of Freedom to 19 other individuals at a White House ceremony. The award to Pope Francis is the first time that President Biden has awarded the medal "with Distinction".  CBS News, reporting on the award, said in part:

Mr. Biden was scheduled to travel to Rome this weekend and present the medal to Francis in person, but he canceled what would have been his final overseas trip as president so he could monitor the wildfires in California.

Catholic Doctors Sue HHS Over Interpretation of EMTALA's Impact on State Abortion Bans

Suit was filed last week in a Tennessee federal district court by an organization of Catholic physicians challenging a July 2022 Memorandum and accompanying Letter from the Department of Health and Human Services that stated that the Emergency Medical Treatment and Active Labor Act pre-empts state abortion bans when an abortion is needed for emergency care. The complaint (full text) in Catholic Medical Association v. U.S. Department of Health and Human Services, (MD TN, filed 1/10/2025) alleges in part:

2. The Memorandum and Letter ... exceed Defendants’ statutory authority, were promulgated without procedure required by law, and are arbitrary and capricious, all in violation of the Administrative Procedure Act (APA). The Mandate also violates the rights of doctors under the Religious Freedom Restoration Act (RFRA) and the First Amendment....

169. CMA’s members exercise their religious beliefs in practicing medicine by caring for patients generally, and in caring for patients in situations subject to EMTALA. CMA’s members exercise their religious beliefs in treating pregnant women and their unborn children with respect and dignity, and in opposing involvement in the direct and intentional killing of unborn children in abortion. 

170. The Mandate substantially burdens the exercise of CMA’s members’ sincerely held religious beliefs. 

171. The Mandate imposes significant pressure on CMA’s members to practice medicine in way that would violate their beliefs because of the threat of investigations, fines, and other punishments and impairments.

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

6th Circuit: Free Exercise Challenge to Child Custody Ruling Must Be Dismissed

In Edelstein v. Flottman, (6th Cir., Jan. 10, 2025), the U.S. 6th Circuit Court of Appeals agreed with an Ohio federal district court that the domestic relations abstention doctrine requires dismissal of a suit against the state judges and social worker involved in the child custody rulings in plaintiff's divorce case. Plaintiffs, a mother and her minor son, contended that the mother's parental rights and the son's free exercise rights were violated by the custody order which forced the son to spend the Sabbath with his non-observant father. The court said in part:

"a fair reading of [Plaintiffs'] complaint and [their] brief on appeal reveals that the instant case essentially is a pretense to obtain federal review of domestic relations matters," which we cannot do.

University' Rescission of Agreement with Church Did Not Violate Equal Protection or Free Exercise Clauses

In Calvary Chapel Belfast v. University of Maine System, (D ME, Jan. 10, 2025), a Maine federal district court refused to issue a temporary restraining order requiring the University of Maine to move ahead with negotiations with Calvary Chapel for the sale to the Church of the University's satellite campus in Belfast, Maine, known as the Hutchinson Center. Originally the University awarded the Church the right to negotiate terms and conditions for the purchase. Competing bidders, as well as some in the community, objected to the award. The University rescinded the award and ultimately awarded the right to purchase to another bidder. The Church filed suit alleging Equal Protection and Free Exercise violations. Rejecting those claims, the court said in part:

The Church argues the comments of the public and the other bidders, combined with what the Church alleges were procedural anomalies in the System’s process, demonstrate the System made its decision to rescind its initial award to the Church because of the Church’s religious status and views, and therefore violated the Equal Protection Clause....

[T]he only evidence the Church produces that demonstrates religious bias comes wholly from parties outside the University of Maine System. However, ... rather than adopting the community’s animosity toward the Church, the System here specifically rejected such bias. The System, in its August 22, 2024 press release, responded to the comments expressing religious animosity as follows: “[t]he university cannot discriminate, including on the basis of religion. Doing so would be against the law and inconsistent with the university’s commitment to inclusion.”...

None of the Church’s cited authorities stand for the proposition that the Court can conclude solely from public opposition that the System violated the Equal Protection Clause for following its own stated procedures to rescind the award to the Church. The fact that there was religious animosity present in the community and even argued to the System as a basis for appeal cannot mean the System is locked into a decision that it determined would result in a substantial net financial loss....

The Church’s arguments that it will likely succeed on its Free Exercise Clause claim rely on the same arguments it makes in support of its Equal Protection Clause claim....

UPDATE: After an evidentiary hearing, in Calvary Chapel Belfast v. University of Maine System, (D ME, May 7, 2025), the Maine federal district court refused to issue a preliminary injunction on plaintiff's free exercise and equal protection claims.

 

New Mexico Supreme Court: Local Anti-Abortion Ordinances Pre-empted by State Law

In State ex rel. Torrez v. Board of County Commissioners for Lea County, (NM Sup. Ct., Jan. 9, 2025), the New Mexico Supreme Court, in a case brought by the state Attorney General, held that municipal and county ordinances restricting local access to abortions and regulating local abortion clinics are pre-empted by state laws. The local ordinances which the court invalidated purported to require compliance with the federal Comstock Act that prohibits the mailing or receipt of abortion inducing instruments or drugs. The Court concluded that these local provisions are pre-empted by the New Mexico Reproductive and Gender-Affirming Health Care Act enacted by the state legislature in 2023. The court also concluded that other provisions in the local ordinances that purported to require local licensing of abortion clinics are pre-empted by several state medical practice and licensing laws. Newsbreak reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• Sandrine Brachotte, The Limits of Arbitration Law in Addressing Cultural Diversity: The Example of Ismaili Arbitration in the United Kingdom, (May 26, 2021).
• Tabrez Ebrahim, Comparative Intellectual Property & Religion, (14 IP Theory 1 (2024)).
• Laura Portuondo, Are Voters Allowed To Protect Abortion?, (November 03, 2024).
• Ira C. Lupu & Robert W. Tuttle, The Ten Commandments in Louisiana Public Schools: A Study in the Survival of Establishment Clause Norms, (Forthcoming, 2025, Chicago-Kent Law Review, in Symposium: “In Search of Common Ground: Religion and Secularism in a Liberal Democratic Society”).
• Michael DeBoer, State Constitutions and State Abortion Laws After Dobbs, (Santa Clara Law Review, Volume 64, No. 1. Pp. 217-264 (2024).
• Adam Steene, Can the Religious Freedom Restoration Act Survive TransUnion's Test for Article III Standing?, (November 12, 2024).

From SSRN (Islamic Law):

• Muhammad Ishaque Gabol, Islamic Banking System Is the Only Alternative in the Current Financial Crisis of Pakistan: Need of Legislation Abstract, (January 3, 2023).
• Shamila Dawood, Islamic Law and Gender Equality: Challenges and Reforms in Sri Lanka's Muslim Marriage and Divorce Act, (Journal of Islamic Law, volume 5, issue 2, 2024).
• Hacer Saduman Okumuş & Mustafa Alper Gümüş Revitalizing 'Mahr' for the Financial Empowerment of Muslim Women within Türkiye's Secular Legal System, (Social Science and Humanities Open (2024)).
• Samiul Hasan, The Muslim Majority Countries as Islamic State: Importance, Performance, Future, (October 30, 2024).
• Muh Shadiqul Fajri AF, The Role of Mudharabah Contracts Towards MSME Capitalization in Samarinda, (Jurnal Penelitian Ilmiah INTAJ, volume 8, issue 2, 2024).
• Salsabilla Nur Anisa & Muh Shadiqul Fajri AF, The Impact of Islamic Financial Literacy on Gen Z's Investment Decisions in The Islamic Capital Market, (Islamic Capital Market, Volume 2, No. 2. Pp. 1-10 (2024)).
• Ahmad Fauze Abdul Hamit, Dynamic Triangulation between Shariah Compliance, ESG Transparency, and Firm Profitability, (International Journal of Research and Innovation in Social Science, volume VIII, issue XII, 2025).
• Federico Lorenzo Ramaioli, A Constitutional Emirate. Legal Development in Taliban Afghanistan, (March 15, 2022).

From SmartCILP:

• Michael H. LeRoy, Accommodating Religious Liberty in an Artificially Intelligent Workplace, 38 Notre Dame Journal of Law Ethics & Public Policy 681-714 (2024).
• Melanie B. Stambaugh & Laura Creech, Church, State, and the New Mexico Civil Rights Act: How Litigants and Courts Can Invoke the State Constitution to Protect Establishment Clause Rights, 54 New Mexico Law Review 523-550 (2024).

South Carolina Doctors Challenge Abortion Ban on Free Exercise Grounds

Suit was filed last week in a South Carolina federal district court by five physicians who contend that South Carolina's abortion ban violates their religious and conscientious beliefs in violation of the First Amendment's free exercise clause. The complaint (full text) in Bingham v. Wilson, (D SC, filed 1/8/2025), alleges in part:

137. Plaintiffs hold sincere religious and conscientious beliefs that they have unwavering duties to respect the dignity of every person, help people in critical need, and place others before themselves. For Plaintiffs, that includes using their medical training to honor a patient’s request to end a pregnancy that threatens to deeply harm her.

The complaint focuses on the narrow exceptions from the abortion ban in South Carolina law for health of the mother, rape or incest, and fatal fetal anomaly and contends:

168. It is neither religiously neutral nor generally applicable for South Carolina to allow abortion under the Abortion Ban’s secular Exceptions while criminalizing abortion when Plaintiffs’ religious beliefs compel it in substantially similar circumstances. 

169. In sum, South Carolina has criminalized religious conduct while allowing secular conduct that undermines its purported state interest in similar ways. In doing so, the State has made a value judgment that secular motivations for abortion care are important enough to overcome this interest, but that religious motivations are not. South Carolina has thus singled out religious conduct for unfavorable treatment.

Plaintiffs also allege that the health and fetal anomaly exceptions in the law are unconstitutionally vague.

Washington Examiner reports on the lawsuit.  [Thanks to Thomas Rutledge for the lead.]

Cert. Granted in Appointments Clause Case; Underlying Issue Is Religious Objection to Insurance Coverage Mandate

The U.S. Supreme Court yesterday granted review in Becerra v. Braidwood Management, Inc., (Docket No. 24-316, certiorari granted 1/10/2025).  (Order List). The issue before the Supreme Court set out in the petition for certiorari is whether the structure of the U.S. Preventive Services Task Force violates the Appointments Clause of the Constitution. Health insurance plans are required to cover without cost sharing various preventive services recommended by the Task Force and by two other advisory bodies. As explained in the 5th Circuit opinion being reviewed, plaintiffs object on religious grounds to providing the Task Force's mandated insurance coverage for pre-exposure drugs that prevent the transmission of HIV. Plaintiffs contend that this coverage makes them complicit in facilitating homosexual behavior, drug use and sexual activity outside of marriage. UPI reports on the Court's action.

UPDATE: on January 13, the Court denied certiorari sought by a conditional cross-petition in the case. Braidwood Management, Inc. v. Becerra, (Docket No. 24-475, certiorari denied 1/13/2025). (Order List.)

Court Invalidates New Title IX Rules That Protected Transgender Students

In State of Tennessee v. Cardona, (ED KY, Jan. 9, 2025), a Kentucky federal district court issued a vacatur order invalidating rules under Title IX adopted by the Department of Education last April. Plaintiffs challenged provisions that extended sex discrimination bans to discrimination on the basis of gender identity. The court said in part:

Because the Final Rule and its corresponding regulations exceed the Department’s authority under Title IX, violate the Constitution, and are the result of arbitrary and capricious agency action, the plaintiffs’ motions for summary judgment will be granted....

... [T]he Final Rule’s definitions of sex discrimination and sex-based harassment, combined with the de minimis harm standard, require Title IX recipients, including teachers, to use names and pronouns associated with a student’s asserted gender identity....

The plaintiffs reasonably fear that teachers’ (and others’) speech concerning gender issues or their failure to use gender-identity-based pronouns would constitute harassment under the Final Rule.  Put simply, the First Amendment does not permit the government to chill speech or compel affirmance of a belief with which the speaker disagrees in this manner....

The Final Rule also is vague and overbroad. ....

... [A] vacatur order “takes the unlawful agency action ‘off the books’”—“an entirely appropriate response when a plaintiff successfully establishes that the agency’s conduct violates the law.”...  Vacatur operates on the rule itself and prevents the rule’s “application to all who would otherwise be subject to its operation.” ... See Kentucky, 728 F. Supp. 3d at 522 (quoting East Bay 

Although the Court has discretion to craft a different remedy, there is no reason to do so here.

ADF issued a press release announcing the decision.

Ecclesiastical Abstention Doctrine Does Not Apply To Pastor's Defamation Suit

In Garner v. Southern Baptist Convention, (TN App., Jan. 8. 2025), a Tennessee state appellate court held that the ecclesiastical abstention doctrine does not apply to a defamation suit brought by a Baptist pastor against the Southern Baptist Convention and various of its officials and staff. At issue are oral conversations and a letter from an SBC staff member suggesting that allegations of sexual misconduct had been made against Preston Garner, a pastor at Everett Hills Baptist Church. The court said in part:

The conduct at issue is the Appellants’ purported publication of written and oral statements that Mr. Garner was “an individual with an alleged history of abuse” and that the allegation was credible, while failing to also state that “the allegation[ was] made through an anonymous online portal” and that the Appellants “had not made any inquiry into the veracity of the anonymous report, or that no evidence supported the anonymous report.”  ... [T]he Appellants in this case have not raised any argument that their conduct resulted from the application or interpretation of any religious canon.  Moreover, any argument by the Appellants that the Letter was sent as part of a pastoral disciplinary process is undercut by the concession of the SBC and the Credentials Committee that “[t]he Credentials Committee does not ‘investigate what occurred or judge the culpability of an accused individual,’ but rather only reviews ‘how the SBC church responded to sexual abuse allegations and make[s] recommendations as to whether those actions or inactions are consistent with the SBC’s beliefs regarding sexual abuse.’”

... [C]onsidering the Garners’ claims will not require the trial court to resolve any religious disputes or to rely on religious doctrine. 

The court also concluded that the Tennessee Public Participation Act applies to the lawsuit, but that plaintiffs had carried their burden of proof needed to avoid early dismissal of the case.

The Religious Affiliations of Members of 119th Congress Are Reported

The Pew Research Center has published a study of the religious affiliation of members of the 119th Congress which began last week. In an article titled Faith on the Hill, Pew reports that 86.7% of the voting members of the Senate and House combined are Christian.  55.5% are Protestant and 28.2% are Catholic. The largest Protestant denomination represented is Baptist.  Other Christian denominations represented are Latter Day Saints (1.7%), Orthodox Christians (1.1%) and Messianic Jewish (0.2%).  6% of the new Congress is Jewish. Other religious groups represented by 4 or fewer members (less than 1%) each are Muslim (4), Hindu (4), Buddhist (3), Unitarian Universalist (3) and Humanist (1).  3 members report that they are unaffiliated. Affiliation of 21 members (3.9%) is unknown.

Challenges to School Policy on Disclosure of Gender Identity Change May Move Ahead

In Mirabelli v. Olson, (SD CA, Jan. 7, 2025), a California federal district court denied motions to dismiss a suit brought by teachers and parents challenging a policy of the state board of education that schools are not to disclose a student's announced change of gender identity to the student's parents without the student's consent. The policy is intended to protect student privacy.  Among other challenges, plaintiffs claimed that the policy violates their 1st Amendment free exercise and free speech rights. The court said in part:

According to the Complaint, the policies force parents to accede to a school’s plan to neither acknowledge nor disclose information about their child’s gender dysphoria.  By concealing a child’s gender health issues from the parents, parents are precluded from exercising their religious obligations to raise and care for their child at a time when it may be highly significant, because they are kept uninformed of the need for their child’s religious guidance.  “....

... Teachers do not completely forfeit their First Amendment rights in exchange for public school employment.  To the extent that teachers allege (as they do here) that EUSD has hired their speech to speak falsely or deceptively to parents of students, the teachers make out a plausible claim for relief under the First Amendment’s Free Speech Clause.  Likewise, to the extent teachers allege (as they do here) that EUSD’s curriculum includes what the teachers sincerely believe to be lies and deceptions for communications with school parents and that such prevarications are religiously or morally offensive, the teachers make out a plausible claim for relief under the First Amendment’s Free Exercise Clause.  EUSD contends that it is not a lie to not answer a question.  That the teachers sincerely held religious beliefs to the contrary cannot be simply dismissed....

There are no controlling decisions that would compel this Court to limit or infringe parental rights, notwithstanding the State’s laudable goals of protecting children.  This Court concludes that, in a collision of rights as between parents and child, the long-recognized federal constitutional rights of parents must eclipse the state rights of the child.  Therefore, the Court finds that the Plaintiffs have stated plausible claims upon which relief can be granted and the motions to dismiss are denied.

1st Circuit Hears Oral Arguments in Religious Schools' Challenge to Anti-Discrimination Provisions

In 2022, the U.S. Supreme Court held that Maine cannot exclude parochial schools from participating in its program that pays tuition for certain out-of-district students. While that litigation was pending, the Maine legislature amended state law to provide that schools receiving state funds cannot discriminate on the basis of religion, sexual orientation or gender identity. This had the effect of excluding Catholic and certain other Christian schools.  On Monday, the U.S. 1st Circuit Court of Appeals heard oral arguments in two cases challenging that anti-discrimination law on free exercise grounds:

One case was St. Dominic Academy v Makin (audio of full oral argument). In the case, a Maine federal district refused to preliminarily enjoin enforcement of Maine's educational and employment antidiscrimination laws in a suit brought by a Catholic diocese, a Catholic school and a Catholic family. (See prior posting.) Becket issued a press release giving additional background.

The second case was Crosspoint Church v Makin (audio of full oral argument). In the case, a Maine federal district court refused to enjoin application of the state's educational antidiscrimination laws against a private Christian school. (See prior posting.) First Liberty Institute issued a press release giving additional background.

4th Circuit: Covid Vaccine Religious Accommodation Suit Should Not Have Been Dismissed

 In Barnett v. INOVA Health Care Services, (4th Cir., Jan. 7, 2025), the U.S. 4th Circuit Court of Appeals reversed the dismissal of Title VII and state law claims by a former registered nurse who was denied a religious exemption or accommodation from her employer's Covid vaccine mandate. The court said in part:

Barnett has sufficiently alleged her beliefs are religious in nature.  Specifically, Barnett alleged, amongst other things:  (1) “it would be sinful for her to engage with a product such as the vaccination after having been instructed by God to abstain from it”; (2) her “religious reasons for declining the covid vaccinations. . . were based on her ‘study and understanding of the Bible and personally directed by the true and living God’”; and (3) receiving the vaccine would be sinning against her body, which is a temple of God, and against God himself....  At this stage, these allegations are sufficient to show that Barnett’s “belief is an essential part of a religious faith” that “must be given great weight[,]” ... and are plausibly connected with her refusal to receive the COVID-19 vaccine.

2nd Circuit Affirms Dismissal of Louis Farrakhan's Suit Against ADL

In Farrakhan v. Anti-Defamation League, (2nd Cir., Jan. 3, 2025), the U.S. 2nd Circuit Court of Appeals affirmed the dismissal of a suit brought against the Anti-Defamation League by Minister Louis Farrakhan and the Nation of Islam that alleged free speech and defamation claims. Upholding the trial court's dismissal of the First Amendment claims for lack of standing, the court said in part:

To the extent plaintiffs assert claims against defendants because third parties—Morgan State University and Vimeo—denied or rescinded plaintiffs’ access to speech platforms, those alleged First Amendment injuries are not fairly traceable to the defendants’ actions....

Plaintiffs’ remaining First Amendment claims do not state any injuries in fact....

As to the defamation claims, the court said in part:

Plaintiffs challenge a number of defendants’ statements that label plaintiffs in various ways as “anti-Semitic.”  Under New York law, these statements are nonactionable opinions....

Plaintiffs also challenge statements made by defendants interpreting Farrakhan’s own statements.  The challenged statements were either accompanied by disclosures of Farrakhan’s actual statements or were based on Farrakhan’s statements that were widely reported by the media....

Finally, plaintiffs challenge certain of defendants’ factual statements.  On de novo review, we agree with the district court that the SAC fails to sufficiently allege the falsity of those statements.  

Jonathan Turley reports on the decision.

President Biden Sends Greetings on Orthodox Christmas

In a Statement released today (full text), President Biden and Jill Biden sent greetings to Orthodox Christians who are celebrating Christmas today. The Statement says in part:

Today, we pray for Orthodox Christians who are suffering around the world due to war, conflict, deprivation, and oppression. They, like all human beings, are created in the image of God, and deserve safety and security, dignity and respect. We will continue to advocate for these core principles, including religious freedom, and on this day, we keep these communities close to our hearts.

Suit Challenges Museum's Diversity Policy as Violative of Employee's Religious Beliefs

Suit was filed last week in a New York federal district court by an employee of the Genesee Country Museum who was fired from her managerial position because her religious beliefs were inconsistent with the Museum's Diversity, Equity, Acceptance and Inclusion Policy. The complaint (full text) in Berkemeir v. Genesee County Museum, (WD NY, filed 1/2/2025), alleges that plaintiff's dismissal violates her free exercise and free speech rights, the Equal Protection Clause, and Title VII of the 1964 Civil Rights Act as well as other statutes. The complaint specifically focuses on requirements to address individuals by their preferred pronouns, but also sets out broader objections, stating in part:

80. Plaintiff also has the sincerely held religious belief, compelled by Scripture, that she is to “take no part in the unfruitful works of darkness,” but to “expose them.”... 

81. Plaintiff also has the sincerely held religious belief, compelled by Scripture, that silence in the face of evil is evil itself....

84. Plaintiff also has the sincerely held religious belief that for her to fail to speak out against things she knows are wrong results in the eternal condemnation of her soul....

228. Plaintiff’s sincerely held religious beliefs that compelled her to view all people as created by God in His image and equally deserving of respect did not comport with Defendants’ newly minted program of requiring all employees to view white people as “born oppressors” and somehow undeserving of identical respect and treatment. 

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

Louisiana AG Issues Guidance to Schools on Posting the Ten Commandments in Classrooms

Last week, Louisiana Attorney General Liz Murrill issued Guidance (full text) to public schools on implementing the state's new Ten Commandments Law that requires display of the Ten Commandments in each public-school classroom. The Guidance requires posting only if the displays themselves or funding for the displays are donated. The Guidance includes four separate thematic posters that pair the Ten Commandments with other pictures or texts.  The Attorney General says that these assure the constitutionality of the displays. Schools may choose any of the posters. The themes of the posters are The House of Representatives & the Lawgivers; The Supreme Court & the Lawgivers; Religion's Role in American Public Education; and The Supreme Court & the Religion Clauses of the Constitution. Reporting on the new Guidance, the Louisiana Illuminator points out that "The new law does not include any punishment for not posting the display in classrooms." A federal district court has enjoined five Parishes from implementing the new law. (See prior posting.) The state is appealing that decision to the Fifth Circuit. [Thanks to Scott Mange for the lead.]

Church of Satanology's Suit to Display Banner in Schools Moves Ahead

In Stevens v. School Board of Broward County, Florida, (SD FL, Jan. 2, 2025), a Florida federal district court refused to dismiss free exercise, free speech and Establishment Clause claims brought by a minister of The Church of Satanology and Perpetual Soiree whose request to display a religious banner at a high school and a middle school were denied. Schools had permitted other churches to display banners, but refused plaintiff's request to display a banner reading "Satan Loves the First Amendment". The court said in part:

... Reverend Stevens has adequately alleged that he “has engaged in the exercise of religion.”... The school board’s arguments as to the lack of evidence regarding the Church’s tenets are better addressed on a motion for summary judgment or at trial, not on a motion to dismiss. And by preventing Reverend Stevens from displaying these banners, the school board has allegedly “substantially burdened this religious exercise.”...

The Court concludes that Reverend Stevens has stated a claim for viewpoint discrimination.  

The school board has arguably created a limited public forum at its schools by allowing some advertisements to be displayed on school grounds. ...

To the extent that Reverend Stevens’s First Amendment claim is brought as an Establishment Clause claim, rather than a Free Exercise Clause claim, the school board has not established that it should be dismissed....

Ban on Firing Employee Because of Reproductive Health Decision May Violate Religious Employer's Expressive Association Rights

In CompassCare v. Hochul, (2nd Cir., Jan. 2, 2025), anti-abortion pregnancy centers and a Baptist Church challenge a New York statute which prohibits employers from discriminating against an employee based on any reproductive health care decision made by the employee or a dependent. Reviewing plaintiffs' expressive association claim, the court said in part:

[A]n entity like CompassCare, or another mission-based organization that advocates for a particular cause or set of beliefs, could plausibly allege that the compelled retention of a specific employee would impair its ability to express its message....

To sustain their challenge to the Act, each Plaintiff must adequately allege (and eventually prove) that the Act threatens “the very mission of its organization.”

However, the court rejected the claim that this provision violates free speech and free exercise rights.

The court also concluded that the law's notice provision which requires employee handbooks to include information on employees' rights under the New York labor law is subject only to rational basis review. The court said in part:

Requiring Plaintiffs to include among these wide-ranging provisions a notice informing employees of their available rights and remedies under a valid statute is not akin to requiring a crisis pregnancy center to distribute a notice about state-sponsored reproductive health services “at the same time [the centers] try to dissuade women from choosing that option.”... 

We conclude that the required notification does not interfere with Plaintiffs’ greater message and mission.

ADF issued a press release announcing the decision.

Church's Claims Against Parent Body Can Largely Be Decided on Neutral Principles of Secular Law

 In Fifth Avenue United Methodist Church of Wilmington v. North Carolina Conference, Southeastern Jurisdiction, of the United Methodist Church, Inc., (NC App., Dec. 31, 2024), a North Carolina appellate court, in a 2-1 decision, held that the trial court had improperly dismissed a number of claims by a church whose parent body closed its down and seized its property while the church was seeking to disaffiliate from the parent body. The majority said in part:

... Fifth Avenue contends that the trial court has subject matter jurisdiction to consider its property and trust claims because there remains a genuine, secular question of whether it was in a connectional relationship with the UMC concerning the Property.  Fifth Avenue maintains as such because none of the deeds pertaining to the Property refer to the trust clauses contained in the BOD [Book of Discipline], “save one green space parcel conveyed in 1986.”  After carefully considering our precedents resolving similar disputes, we agree....

Fifth Avenue next argues that even if the Property is subject to a trust under the BOD, the trial court erred in dismissing its claim arising from its right to disaffiliate and retain the Property free of the trust clause under paragraph 2553.  Fifth Avenue contends that its breach of contract claim survives dismissal at this stage because it does not require a determination of ecclesiastical issues and can be settled by neutral principles of contract law.  Fifth Avenue maintains that Defendants failed to follow the disaffiliation procedures set out in paragraph 2553 by not allowing a church conference vote within 120 days...  [W]e agree and hold that the trial court committed error by dismissing Fifth Avenue’s breach of contract claim because determining whether Defendants “acted within the scope of their authority” and “observed the organization’s own organic forms and rules is founded in neutral principles of secular law.” ...

Fifth Avenue next submits that the trial court committed error by dismissing its claims for fraud and constructive fraud because they do not require the court to examine or determine ecclesiastical issues.  More precisely, Fifth Avenue contends that whether Defendants colluded to take the Property “under the guise of legitimate action can be determined without delving into the validity of the reasons” provided for closure.  After scrutinizing the record and applicable law, we agree....

 Judge Arrowood filed an opinion dissenting from much of the majority's holdings, saying in part:

I believe the trial court is permitted to assess whether Fifth Avenue is contractually entitled to disaffiliate following closure, as this can be decided under neutral principles of law.  However, I respectfully dissent from the remainder of the majority opinion.  I believe the First Amendment church doctrine warrants dismissal of Fifth Avenue’s claims apart from the breach of contract claim and would affirm the trial court’s judgment in those respects.

4th Circuit: Abstention Doctrine Does Not Apply in Challenge to No Religious Exemption in Vaccination Law

In West Virginia Parents for Religious Freedom v. Christiansen, (4th Cir., Dec. 31, 2024), the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that a West Virginia federal district court erred in applying the Pullman abstention doctrine in a suit challenging the constitutionality of West Virginia's vaccine mandate for school children. Plaintiffs contended that the absence of a religious exemption in the mandate violates the 1st Amendment's Free Exercise Clause. The majority said in part:

Pullman abstention is typically reserved for a situation where the state law being presented is unclear and could be interpreted in a way that avoids the federal constitutional issue....  And Pullman abstention is not applicable if the state law is not subject to an interpretation that would render unnecessary the adjudication of a federal constitutional question....

 ... [T]he only state law presented for decision here is the Vaccination Mandate.  On the other hand, the only state law identified as being unclear is the recently adopted [Equal Protection for Religion Act].  And the Plaintiffs are not challenging the Vaccination Mandate under EPRA.  Rather, the Plaintiffs pursue their Free Exercise claim solely under the Free Exercise Clause.... 

... “[A]bstention cannot be ordered simply to give state courts the first opportunity to vindicate the federal claim.”

Judge Berner filed a dissenting opinion, saying in part:

In several cases ..., this court and the Supreme Court have found abstention proper because the challenged law’s relationship with a different state law or constitutional provision was unsettled....

Because the relationship between the Vaccination Mandate and the EPRA is unsettled, this case satisfies the first Pullman requirement. 

This case also meets the second Pullman precondition.... There is no requirement that the resolution of the state law issue necessarily moot the federal constitutional issue. Instead, it is enough that questions of state law “may dispose of the case and avoid the need for deciding the constitutional question.”

Happy New Year 2025!

Dear Religion Clause Readers:

Happy New Year 2025! 

I hope that you continue to find Religion Clause a valuable source of information on the intersection of law, religion and public policy. Recently the total number of posts since Religion Clause began publication in 2005 broke the 25,000 mark .

It has been a busy year for those of us who follow legal developments impacting free exercise rights and church-state separation.  As political, cultural and health care issues have increasingly taken on religious significance for many individuals, deciding which developments qualify as ones of religious concern has become a more difficult project. I have generally treated all legislative and judicial developments relating to reproductive rights as ones that I should cover.  It has been more difficult to decide which developments regarding transgender rights are ones that implicate religious views.

Another coverage challenge has been created by the explosion in the number of court decisions on denial of religious exemptions from Covid vaccine mandates during the height of the pandemic.  Many of these decisions are repetitive in their legal analysis. I have generally moved to covering only appellate court decisions in this area or the rare trial court decision that has a unique twist to it. (This is the same standard that I have applied for a number of years in covering prisoner free exercise cases.)

Religion Clause has always been a niche blog which has particularly attracted lawyers, social scientists, advocacy organization personnel, law school faculty, journalists, clergy, legislative and executive branch staff, students and others working professionally or avocationally interested in church-state relations and religious liberty issues.  I invite your feedback on the continued effectiveness of the current format.

The Religion Clause website is the most effective way of accessing posts, ad-free.  However, Religion Clause posts are also available through e-mail subscriptions, through X (formerly known as Twitter) and through Facebook, though the format, accompanying advertising, and availability of posts through these channels are handled by third parties over whom I have no control. Hopefully the technical issues that earlier this year interfered with access through Facebook and X are now resolved.

As always, I have attempted to retain Religion Clause's objectivity and its policy of linking to extensive primary source material. I hope that the blog continues to have a reputation for reliability at a time when the objectivity of social media is increasingly called into question.

I also urge you to look at the blog's Sidebar which has dozens of links to useful sites. Scroll down and you will also find resources to subscribe for e-mails giving you access to the latest posts, and access to the X (Twitter) account.

Thank you to all who are loyal readers of Religion Clause-- both those who have followed it for many years and those who have only recently discovered it. I hope you will continue to follow Religion Clause in 2025. Please recommend the blog to colleagues, students and friends who may find it useful and interesting.

I want to extend a special thanks to those of you who have sent me leads to developments of interest.  I have tried to acknowledge them in the posts that they generate. To all my readers, feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions.

Best wishes for a New Year that is more peaceful and tolerant than the past year,

Howard Friedman                 

President Jimmy Carter's Views on Religion

Jimmy Carter, 39th President of the United Staes, passed away on Sunday at the age of 100. The White House issued a Proclamation from President Biden formally announcing Carter's death. Religion played an extremely important role in Carter's life. In October 1976, just a month before the election in which he narrowly defeated Gerald Ford, Carter gave a lengthy interview (full text) with leaders of "National Religious Broadcasters" and "World Religious News" that set out his personal views on religion as well as on separation of church and state. Here are a few excerpts:

Q. Mr. Carter, ... can you tell us what Jesus Christ means to you, and to what extent you have dedicated your life to Him?

Governor Carter. The most important thing in my life is Jesus Christ....

I had my deepest and most personal turning to Christ about 10 years ago. 1966 or 1967, when I realized that in spite of the achievement within my church circle, as chairman of the board of deacons, superintendent of the Sunday School, and so forth, that there was an absence of a deep, constant personal relationship with Christ I went to some other states to witness among those who had no church affiliation. During the trips, I felt very personally present to the Holy Spirit and began to be able to testify for the first time with complete sincerity about what Christ meant to me. I found it easy to pray without a special extra effort; it became part of my consciousness, and I felt a sense of peace and security that I had never felt before....

Q. How does your Christian commitment affect political decisions you have made and will make in the future?

Governor Carter. As a Baptist I believe very strongly in the principle of separation of church and state....

As far as my decisions as a political leader, they are affected very heavily by my Christian beliefs. I spent more time on my knees as governor of Georgia than I had spent all the rest of my life put together because I felt the responsibility of many other people's lives. I cling to the principles of the Judeo-Christian ethic. Honesty, integrity, compassion, love, hope, charity, humility are integral parts of any person's life, no matter what his position in life may be. But when someone is elected and trusted by others to help determine one's own life quality, it puts an additional responsibility on the pastor or the schoolteacher or someone who has a public life. So, the Christian or the religious commitment is one that's especially useful tome....

... Not too long ago, I taught a Sunday school lesson about how Paul and Peter reacted to the laws or government of that day. Their admonition was to obey the law and to obey the chosen rulers.

If there was a violation of God's laws by the civil law, to obey God's law is to be willing to accept the punishment administered by the civil law and to try to work to make sure the civil law was compatible with God's law.

Q. In the past, much has been discussed concerning prayer and Bible reading in public schools. In the event you become the President of the United States, what proposals or plans would you have concerning this particular area?

Governor Carter. I don't favor the state, through the public schools, requiring a certain kind of prayer or worship. I believe that ought to be a decision made by the individual student. There ought not to be any prohibition against any self-initiated worship. But the requirement of conformity of worship is something that is contrary to my own beliefs....

9th Circuit: Ministerial Exception Bars Claim by Mashgiach for Wages and Promotion

In Markel v. Union of Orthodox Jewish Congregations, (9th Cir., Dec. 30, 2024), the U.S. 9th Circuit Court of Appeals held that the ministerial exception requires dismissal of a suit alleging wage and hour violations as well as fraud and misrepresentation brought by a mashgiach (kosher food inspector) against the kosher certification agency that employed him. Plaintiff alleged that he never received a promotion and raise that were promised to him and certain compensation for overtime. The court concluded that defendant, the Orthodox Union, is a religious organization and that plaintiff Markel is a "minister." saying in part:

... [I]f OU is a religious organization and Markel is its minister, the exception applies to Markel’s claims, which are all employment related.  We address each in turn....

Because only observant Orthodox Jews can serve as a mashgiach for the OU, and because they are necessary to carrying out OU’s religious mission of “ensuring the wide availability of kosher food,” a mashgiach is a minister for purposes of the ministerial exception....

... Markel invites us to create a rule that if a religious purpose did not animate the relevant employment decisions, then the ministerial exception should not apply, and the case should be allowed to proceed to discovery.... 

Markel’s argument raises two separate, but related issues.  First, can issues involving a religious institution ever be bifurcated into being either “religious” or “non-religious?”  And second, does a religious institution need to identify a “religious” justification for its employment related decisions to invoke the ministerial exception?  The answer to both questions is no....

... Since the same constitutional harm looms regardless of whether an employee-plaintiff’s employment-related claims are against the religious organization or its leaders, we hold that the ministerial exception protects both....

Judge Sanchez filed an opinion concurring in part and concurring in the judgment. Reuters reports on the decision.

Court Denies Preliminary Injunction Against Moratorium Delaying Building of Mosque

In Zikar Holdings, LLC v. Ruhland, (D MN, Dec. 26, 2024), a Minnesota federal district court refused to issue a preliminary injunction to enjoin the city of Lino Lakes from enforcing a one-year moratorium on development of an area of the city where plaintiffs had proposed to build a housing development that included a mosque. Plaintiffs contended that the moratorium was motivated by discriminatory intent in violation of the free exercise clause, RLUIPA and the Fair Housing Act. The court said in part:

Here, Plaintiffs are likely to show that the Moratorium might have delayed Plaintiffs’ ability to build a place of worship and potential future residences near it in the northwest corner of Lino Lakes.  The language of the Moratorium, however, places no permanent restrictions on Plaintiff’s ability to build anything and, perhaps more importantly, it places no restriction on Plaintiff’s ability to seek development of a mosque elsewhere in the City or to worship elsewhere in the City.  Plaintiffs have therefore not shown that they are likely to prove the Moratorium was a “substantial burden” on their ability to practice Islam....

On this evidence, the Court believes a reasonable juror could infer that the Moratorium was pretextual.  However, the evidence presented at this stage, prior to discovery, is not so strong that it satisfies the heightened Rounds standard.  The motives and beliefs of the council members, as well as the basis for the timing of the Moratorium decision remain unknown at this stage, and absent additional circumstantial evidence of discriminatory intent, a reasonable fact-finder could conclude that supporting the Moratorium reflected the importance of complying with the 2040 Plan and prudent infrastructure and resource planning.  Thus, the Court concludes that this factor is neutral, weighing neither in favor of nor against granting Plaintiffs’ preliminary injunction motion.....

Recent Articles of Interest

From SSRN:

• Raphael Cohen-Almagor, Is Israel a Liberal Democracy?, (The Cairo Review of Global Affairs (December 2024)).
• Syed Khalid Mohiuddin & Danish Ahmed Siddiqui, The Development of the Maqasid Al Shariah Index to Assess the Sharia Compatibility Performance of Islamic Industry Including Other Industry and Financial Industry & Banks, (September 18, 2024).
• Taisu Zhang, "Natural Hierarchies", (Yale Journal of Law and the Humanities, Volume 36 (forthcoming 2025)).

From SmartCILP:

• Theresa Glennon, Book Review. Acknowledgement: Restoring Human Rights and Dignity. Redress: Ireland's Institutions and Transitional Justice, edited by Katherine O'Donnell, Maeve O'Rourke, James M. Smith, 42 Boston University International Law Journal 1-26 (2024).
• Julie F. Kay, Prioritizing Children's Educational Interests When One Parent Leaves an Ultra-Orthodox Community, 57 Family Law Quarterly 231-264 (2023-2024).

White House Releases National Strategy to Counter Islamophobia and Anti-Arab Hate

Earlier this month (Dec. 12), the White House released a U.S. National Strategy to Counter Islamophobia and Anti-Arab Hate (full text). The 67-page document says in part:

Islamophobia is hatred, discrimination, or bias directed at Muslims or those perceived to be Muslim. It can have a profound negative impact on people of all ages and backgrounds, threatening their personal safety and their ability to fully exercise their constitutional rights. This Strategy also seeks to counter hate targeting Arab Americans because they are Arab. It is important not to conflate Muslims with Arabs and Sikhs, who also often experience unique forms of hate, bias, and discrimination because of who they are, not because they are perceived to be Muslims.  

This Strategy sets forth actions to counter hate, discrimination, and bias affecting these communities, remaining mindful of their unique experiences. We have listened to community and civil society leaders, as well as subject matter experts from various backgrounds throughout the development of this Strategy, and they have shared both their common and distinctive concerns.  

For far too long, it has been common to conflate Arabs and Muslims. As we note in this Strategy, the majority of Arab Americans are not Muslim, and the vast majority of Muslim Americans are not Arab. Arab Americans practice a number of religions, including Christianity and Islam, and they are ethnically and racially diverse. Throughout this Strategy, we identify unique challenges facing Arab Americans and emphasize the importance of avoiding conflation with other communities, even as we put forward a number of common strategies to address many forms of hatred.

AP reported on the release of the National Strategy.

EEOC Sues Employer for Refusal to Grant Religious Accommodation to Covid Vaccine Mandate

The EEOC announced yesterday that it had filed a Title VII lawsuit against the North Carolina-based Rex Healthcare, Inc. for refusing to grant a religious accommodation to an employee who objected to receiving the Covid vaccination.  According to the EEOC:

[I]n 2021 Rex Healthcare implemented a policy mandating that all employees receive a COVID-19 vaccination unless they were granted an exemption because of their religious beliefs or a disability. The charging party in the EEOC’s suit, who worked remotely, requested a religious exemption in accordance with the policy. Even though the employee had previously been granted an exemption from being required to take the flu vaccination based on her religious beliefs, the request for an exemption from the COVID-19 vaccination was denied.

The employee submitted multiple follow up requests with additional explanations of her religious beliefs in support of her request. Despite the employee articulating a sincerely held religious belief, Rex Healthcare denied the employee’s accommodation requests and subsequently fired her for failing to comply with the company’s COVID-19 vaccine mandate.