Mask-In-School Requirement Challenged On Free Exercise Grounds

Suit was filed last week in an Ohio state trial court challenging as too narrow the religious exemption from Ohio's COVID-19 mask requirement in schools. The complaint (full text) in Miller v. Himes, (Putnam Cty. Com Pl., filed Sept. __, 2020), contends that the exemption for students "when an established sincerely held religious requirement exists which does not permit a facial covering" violates their free exercise rights. A school district denied an exemption to one of the plaintiffs even though she had a sincerely held religious belief  opposing masks. The district took the position that a belief is different from a religious requirement.  The suit also challenges the school mask requirement on various other grounds, including compelled speech and parental rights claims. Cincinnati Enquirer reports on the lawsuit.

EEOC Sues On Behalf of Employees Who Refuse To Wear Company Aprons That Contain Rainbow Emblem

The EEOC announced yesterday that it has filed suit against a Conway, Arkansas Kroger store charging that it violated Title VII when it disciplined and then discharged two women employees who refused to wear Kroger aprons that display a rainbow-colored heart emblem.  The women believe that the apron endorses LGBTQ values and that wearing it violates their religious beliefs. Kroger refused the women's offers to wear other aprons or to cover the emblem.

Consent Decree Ends Religious Practices In Tennessee School District

Earlier this week, a Tennessee federal district court issued a consent decree in Butler v. Smith County Board of Education, (MD TN, Sept. 14, 2020), enjoining various religious practices in the Smith County schools. The Consent Decree and Order provides in part:

Complaint alleged that the Board has a custom, policy, and practice of violating the Establishment Clause by, among other actions, incorporating official prayer into school events; proselytizing students; and subjecting students to religious iconography via displays in classrooms, hallways, and other locations....

School Officials are enjoined from promoting, advancing, endorsing, participating in, or causing Prayers during or in conjunction with School Events for any school within the School District....

School Officials are enjoined from planning, organizing, financing, promoting, or otherwise sponsoring in whole or in part a Religious Service....

Defendants are enjoined from permitting School Officials at any school within the School District to promote their personal religious beliefs to students in class or during or in conjunction with a School Event....

School Officials are enjoined from taking retaliatory action against Plaintiffs or any member of their family for bringing this lawsuit or otherwise objecting to unconstitutional practices.

WZTV reports on the case.

DoD Issues Revised Policy On Religious Liberty In Military Services

On Sept. 1, the Department of Defense issued a revised version of DoD Instruction 1300.17, Religious Liberty in the Military Services. The revised Instruction begins by setting out the purpose of the document:

• Establishes DoD policy in furtherance of the Free Exercise Clause ... recognizing that Service members have the right to observe the tenets of their religion, or to observe no religion at all.

• Establishes policy, assigns responsibilities, and provides procedures for the accommodation of religious practices of Service members.

• Establishes DoD policy on the accommodation of individual expressions of sincerely held beliefs (conscience, moral principles, or religious beliefs), which do not have an adverse impact on military readiness, unit cohesion, good order and discipline, or health and safety.

• Establishes DoD policy providing that an expression of sincerely held beliefs (conscience, moral principles, or religious beliefs) may not, in so far as practicable, be used as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.

• Implements requirements in ... “The Religious Freedom Restoration Act” ... and other laws applicable to the accommodation of religious practices for DoD to provide, in accordance with the RFRA, that DoD Components will normally accommodate practices of a Service member based on a sincerely held religious belief.

• Requires DoD Components to oversee the development and provision of education and training on the policies and procedures pertaining to the accommodation of religious practices of Service members to commanders, judge advocates, chaplains, recruiters, and other personnel....

The new Instruction replaces a version adopted in 2014. (See prior posting.)

Report Contends UAE-Bahrain-Israel Deal Could Change Status Quo On Temple Mount

Relying on a Report from the NGO Terrestrial Jerusalem, Al Jazeeera says that a clause in the UAE-Bahrain normalization agreements with Israel could lead to a change in status of the Temple Mount/ Al-Aqsa compound. Under the current status quo arrangements, only Muslims can pray on the Temple Mount/ Al-Aqsa compound.  President Trump's Middle East Peace Plan called for the Temple Mount to be open to worshipers of all faiths. However a later clarification by U.S. Ambassador to Israel David Friedman  said: "The status quo, in the manner that it is observed today, will continue absent an agreement to the contrary." Recent statements by the UAE and Bahrain are now being seen as signaling a breach of the status quo arrangement.

Donald Trump's Peace Plan carefully referred to the Temple Mount as "Temple Mount/Haram al-Sharif."  The August 13 Joint Statement by the UAE, Israel and the United States as well as the September 11 Joint Statement by Bahrain, Israel and the U.S. include the following statement which refers only to Al Aqsa Mosque:

As set forth in the Vision for Peace, all Muslims who come in peace may visit and pray at the Al Aqsa Mosque, and Jerusalem’s other holy sites should remain open for peaceful worshippers of all faiths.

According to the Terrestrial Jerusalem Report:

Israel defines Al Aqsa as the structure of the mosque, as does the wording of the Statement, whereas Muslims define Al Aqsa as the entire esplanade of Haram al Sharif/the Temple Mount. Consequently, according to Israel (and apparently to the United States), anything on the Mount that is not the structure of the mosque is defined as "one of Jerusalem's other holy sites", and open to prayer by all – including Jews. Accordingly, Jews may now be permitted to pray on the Temple Mount, just not in the mosque....

Both the Israeli Prime Minister and the US negotiating team fully understand the significance of every word and every nuance relating to Jerusalem in general, and to the Temple Mount/Haram Al Sharif in particular. Consequently, this choice of terminology is neither random nor a misstep, and cannot seen as anything but an intentional, albeit surreptitious attempt to leave the door wide open to Jewish prayer on the Temple Mount, thereby radically changing the status quo.

Recent Articles of Interest

 From SSRN:

• Stephanie H. Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, (134 Harvard Law Review (2021 Forthcoming)).
• Frederick Mark Gedicks, Christian Dignity and the Overlapping Consensus, (Brigham Young University Law Review, Forthcoming).
• George P. Smith, God, Caesar, and Darwin: Parameters and Perimeters of The Town Hall, (2020).
• James May & Erin Daly, Why Dignity Rights Matter, (19 European Human Rights L. Rev. 129 (2019)).
• Samuel D. Brunson, Addressing Hate: Georgia, the IRS, and the Ku Klux Klan, (July 31, 2020).
• Tanner Bean & Robin Fretwell Wilson, The Administrative State as a New Front in the Culture War: Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, (2019-2020 Cato Supreme Court Review (2020)).
• Edana Richardson, The UAE and Responsible Finance – Can Responsible Finance Ṣukūk Help the UAE in Fulfilling Its Sustainability Ambitions?, (Arab Law Quarterly (2021), Forthcoming).
• Sabbir Ahmad Sibli, Cleanliness in Islam: Exploring Through COVID- 19 Pandemic Precautions and Concerns (September 1, 2020).

From SmartCILP:

• Gene Schaerr & Michael Worley, The "Third Party Harm Rule": Law Or Wishful Thinking?, 17 Georgetown Journal of Law & Public Policy 629-652 (2019).
• Virginia L. Brown, The "Principal Purpose" Driven Life: How Hospitals Should Apply ERISA's Church Plan Exemption after Advocate v. Stapleton, 22 Journal of Health Care Law & Policy 223-244 (2019).

EU Court of Justice Advocate General Says Ban On Ritual Slaughter Is Invalid

The Court of Justice of the European Union last week released an Advocate General's opinion concluding that a decree of Belgium's Flemish region effectively banning kosher and Halal slaughter violates European Union law.  In Centraal Israëlitisch Consistorie van België and Others, (Sept. 10, 2020), Belgium's Constitutional Court requested a preliminary ruling on whether the Flemish region can require stunning of animals prior to slaughter.  The Advocate General concluded that the questions referred to the Court of Justice be answered as follows:

Point (c) of the first subparagraph of Article  26(2) of Council Regulation (EC) No  1099/2009 of 24 September 2009 on the protection of animals at the time of killing, read together with Article 4(1) and 4(4) thereof, and having regard to Article 10 of the Charter of Fundamental Rights of the European Union and Article 13 TFEU, must be interpreted as meaning that Member States are not permitted to adopt rules which provide, on the one hand, for a prohibition of the slaughter of animals without stunning that also applies to the slaughter carried out in the context of a religious rite and, on the other hand, for an alternative stunning procedure for the slaughter carried out in the context of a religious rite, based on reversible stunning and on condition that the stunning should not result in the death of the animal.

It had been argued that it should be at least permitted to require stunning that is reversible just prior to slaughter.  The Advocate General rejected this claim, saying in part:

There has also been some debate before the Court as to whether the prior reversible stunning which does not lead to the death of an animal or post-cut stunning of vertebrates satisfies the particular methods of slaughter prescribed by religious rites of both the Muslim and Jewish faiths. In that regard, it would seem that there are divergent views on the matter within both faiths. As I pointed out in my Opinion in Case C-243/19 A. v. Veselibas Ministrija, a secular court cannot choose in relation to the matters of religious orthodoxy:

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

Religious Education Companies Face No Threat Under Indiana Cities' Anti-Discrimination Law

 In Indiana Family Institute, Inc. v. City of Carmel, (IN App., Sept. 10, 2020), an Indiana state appellate court dismissed a suit brought by two companies offering religion-based education programs against four Indiana cities. Plaintiffs claim that their exclusion of same-sex married couples from their events would subject them to various penalties under the cities' non-discrimination ordinances, and that protections in Indiana's RFRA are not broad enough to cover them. The court however found that the companies face no threat of injury, saying in part:

The Companies do not require event attendees to share the same religious beliefs, and the Companies’ own designated evidence demonstrates that they have permitted “many gay people” to attend their programs....

Although the Companies claim that their rights to hold events in the Cites are chilled because of the ordinances’ failure to exempt their activities from enforcement, none of the Companies have been the subject of a complaint or investigation; nor have they been threatened with sanctions or penalties.... 

[T]he Companies have failed to show how the ordinances subjected them to an imminent threat of harm or that they faced a credible threat of prosecution.

Order To Stay Away From Basilica Did Not Violate RFRA

 In De Bèarn v. United States, (DC Ct. App., Sept. 10, 2020), the District of Columbia's highest local appellate court held that a stay-away order barring appellant from the Basilica of the National Shrine of the Immaculate Conception did not violate his rights under the Religious Freedom Restoration Act. Gaston DeBéarn was arrested on charges of destruction property after he entered the Basilica yelling about the need to restore the traditional mass and ran to the altar knocking over candle sticks. A court issued the stay-away order as a condition of releasing DeBéarn before trial.  DeBéarn twice violated the order and was also charged with two counts of contempt. In rejecting DeBéarn's RFRA defense, the court said in part:

“Not just any imposition on religious exercise creates a substantial burden; a burden must have some degree of severity to be considered substantial.”...

At trial, appellant noted that the Shrine was his “favorite” place to attend mass and that he did not “go to other churches” because they are “just not as beautiful as that one.” He acknowledged, however, that he could go to other churches. “With so many alternative places to practice [his religion],” we are satisfied that the stay-away order imposed on appellant as to a single Catholic church “d[id] not force [appellant] to choose between abandoning [his] faith and facing criminal prosecution.”...

1st Circuit Hears Oral Arguments In COVID-19 Worship Service Limitation Challenge

 The U.S. 1st Circuit Court of Appeals yesterday heard oral arguments in Calvary Chapel of Bangor v. Mills. (Audio of full oral arguments.) In May, a Maine federal district court a Maine federal district court rejected a church's First Amendment challenge to Maine Governor Janet Mills' COVID-19 order which at that time prohibited religious gatherings of more than ten people. (See prior posting.)  WBAI News reports on the oral arguments.

DoD Issues New Document On Transgender Military Service

Last week (Sept. 4), the Department of Defense issued DoD Instruction 1300.28 setting out its current policy on enlistment and service in the military by transgender individuals. The new document tracks a policy memo issue last March. (See prior posting.) The new Instruction provides in part:

Transgender Service members and applicants for Military Service [who enlisted on or after April 12, 2019 or who are newly diagnosed with gender disphoria] ... must adhere to the standards associated with their biological sex. Transgender Service members may consult with a military medical provider, receive a diagnosis of gender dysphoria, and receive mental health counseling, but may not obtain a gender marker change or serve in their preferred gender. A Service member may be retained without a waiver provided that a military medical provider determined that gender transition is not medically necessary to protect the health of the individual. Continued service is contingent on the Service member not seeking gender transition, the Service member being willing and able to serve in his or her biological sex, and the Service member being able to meet applicable deployability requirements.

DOE Issues Final Rule On College Free Speech and Equal Treatment of Student Religious Groups

Yesterday, the U.S. Department of Education announced the release of its Final Rule (full text) conditioning government grants on protections of free speech rights and equal treatment of religious organizations. Summarizing the 246-page Release, DOE said in part:

[P]ublic colleges and universities must comply with the First Amendment as a requirement to receive Department grants. Private institutions of higher education must comply with their own stated institutional policies regarding freedom of speech, including academic freedom, as a requirement of Department grants.... 

Second, the rule clarifies how an institution may demonstrate that it is controlled by a religious organization for purposes of Title IX. Federal law provides that Title IX “shall not apply” to educational institutions that are “controlled by a religious organization,” to the extent that application of Title IX would not be consistent with the religious tenets of such organization....

Third, the rule ensures equal treatment of religious student organizations at public colleges and universities. As a requirement of the Department’s grants, public colleges and universities must not deny to a religious student group any of the rights, benefits, or privileges that other student groups enjoy. For example, a religious student group must have the same rights as other student groups at the public institution to receive official recognition, to use the institution’s facilities, and to receive student fee funds. Equal treatment of religious student groups is now a material condition of the Department’s grants.  

Fourth, the rule revises regulations governing some discretionary grant programs under Titles III and V of the Higher Education Act.... Current regulations could prohibit a school from using such a grant for even secular activities or services such as teaching a course about world religions. The rule more narrowly tailors the prohibition on the use of these grants to religious instruction, religious worship, or proselytization. The rule also ... clarif[ies] that institutions are not prohibited from using grants for a secular department of religion.

Education Dive reports on the new Rule.

California Ban On Indoor Religious Services Upheld

In Harvest Rock Church v. Newsom, (CD CA, Sept. 2, 2020), a California federal district court refused to issue a preliminary injunction to a church challenging the state's COVID-19 orders that prohibit indoor church services.  The court said in part:

Because the Orders restrict indoor religious services similarly to or less than comparable secular activities, it is subject to rational basis review, which it easily passes: by limiting certain activities, the Orders reduce person-to-person contact, which in turn furthers the interest of reducing COVID-19 spread. Accordingly, Plaintiffs are not likely to succeed on the merits of their Free Exercise Claim. 

The court also rejected Establishment Clause and free speech challenges.

2020 Census Will Tabulate Sikhs As Ethnic Category

India West reported yesterday that for the first time, Sikhs can be counted in the ongoing 2020 census as a separate group, despite the legal prohibition on the census asking questions about religion.  The Census Bureau will consider Sikhism to be a cultural or ethno-religious category.  As explained by India West:

Sikhism does not appear as a category to tick off on the census forms ..., but Sikhs can tick off the "Other Asian" category and write in their religion as a sub-category instead of listing themselves under Asian Indian or other listed racial and ethnic identities....

But while anyone can write in any religious or ethnic or linguistic identities beyond the categories that appear on the form, only Sikhs and some others are given a code that will allow them to be tabulated separately....

"'Sikh' will be included as a distinct detailed population group within the 'Asian' racial category, and not classified as 'Asian Indian' as it was in the 2010 Census when it was viewed as a religious response," according to the Census Bureau.

The bureau did not say where Sikhs who were not of Asian origin, like many members of the Sikh Dharma of the Western Hemisphere, who are racially White, can write in their separate identity.

"The Census Bureau included 'Sikh' codes as part of the draft 2020 Census code list within the 2018 Census Test Redistricting Data Prototype," it said.

Britain Asks For Comment On Reform of Marriage Law

Britain's Law Commission last week issued a 458-page Consultation Paper on Weddings Law (full text). The document titled Getting Married, proposes for public comment significant changes in laws relating to marriage in England and Wales. The document explains:

1.3 Weddings law in England and Wales is in desperate need of reform.

1.4 The law is ancient, with most of the current rules dating from the 18th and 19th centuries. The rules were devised at a time when virtually everyone lived, married and died within a single community, and when most people shared the same faith and beliefs; indeed, religion would have been the dominating force in most people’s lives. Weddings today are still governed by this system. The law is based on a way of life that bears little resemblance to life in England and Wales today.

1.5 Unsurprisingly, then, the law does not work for many. It restricts how couples are permitted to celebrate their weddings, for historical rather than current policy reasons.

3.4 ...[T]he scheme we provisionally propose is based on regulation of the officiant. That would mark a significant shift in focus from the current law, under which regulation is generally based around the building in which the wedding takes place. With very few exceptions, under our proposed scheme, the same rules would apply to all weddings. Again, that is different to the current law ... under which different rules often apply to Anglican weddings, Jewish and Quaker weddings, other religious weddings, to civil weddings that take place in a register office, and to civil weddings that take place on approved premises.

Law & Religion UK reports on these developments.

Sudan Agrees To Separation of Religion and State As Part of Peace Deal

 Voice of America reports:

Sudan's transitional government has agreed in principle to separate religion and state after three decades of Islamic rule in the country.

Prime Minister Abdalla Hamdok and Abdel-Aziz Adam al-Hilu, the leader of the rebel SPLM-North faction, signed a declaration of principles in the Ethiopian capital, Addis Ababa, Thursday evening [Sept. 3] that says, "The state shall not establish an official religion. No citizen shall be discriminated against based on their religion."

Christianity Today adds further details:

The agreement was signed in Addis Ababa, Ethiopia, four days after a more inclusive peace deal was signed with a coalition of rebel groups in the Sudan Revolutionary Front in Juba, South Sudan.

The Juba agreement established a national commission for religious freedom, which guarantees the rights of Christian communities in Sudan’s southern regions.

Recent Articles and Books of Interest

From SSRN:

• Nicholas Aroney, The Rise and Fall of Human Dignity (July 27, 2020).
• David Orentlicher, Cruzan and Surrogate Decision-Making, (SMU Law Review, Vol. 73, No. 1, 2020, pages 155-162).
• Lloyd Hitoshi Mayer, Charitable Crowdfunding,(September 4, 2020). Notre Dame Legal Studies Paper No. 200904 (Sept. 2020).
• Paul B. Miller, The Morality of Fiduciary Law, (62 Wm. & Mary L. Rev. (2021 Forthcoming)).

From SmartCILP:

• Dallan F. Flake, Interactive Religious Accommodations, 71 Alabama Law Review 67-114 (2019).
• Robin Fretwell Wilson, Common Ground Lawmaking: Lessons for Peaceful Coexistence from Masterpiece Cakeshop and the Utah Compromise, 51 Connecticut Law Review 483-574 (2019).
• Kermit V. Lipez, Reflections on the Church/State Puzzle, [Abstract], 20 Journal of Appellate Practice & Process 7-60 (2019).

Recent Books:

• Joel Harrison, Post-Liberal Religious Liberty: Forming Communities of Charity, (Cambridge University Press, July 2020).
• John Corrigan, Religious Intolerance, America, and the World: A History of Forgetting and Remembering, (University of Chicago Press, April 2020).
• David Nash, Acts Against God: A Short History of Blasphemy, (University of Chicago Press, July 2020).
• Jeremy Patrick, Faith or Fraud: Fortune-Telling, Spirituality and the Law, (University of British Columbia Press, Sept. 2020).
• Winnifred Fallers Sullivan, Church State Corporation: Construing Religion In US Law, (University of Chicago Press, July 2020).
• Tony Keddie, Republican Jesus: How the Right Has Rewritten the Gospels, (University of California Press, Oct. 2020).

Court Denies Summary Judgment In Attempt To Permanently Enjoin Disclosure Requirements By Pro-Life Pregnancy Centers

 In National Institute of Family and Life Advocates v. Rauner, (ND IL, Sept. 3, 2020), an Illinois federal district court denied summary judgment to two pro-life crisis pregnancy centers that are seeking to permanently enjoin enforcement of an Illinois statutory provision conditioning immunity for health care providers on their disclosure of medical options, including those that conflict with their religious beliefs. They must also facilitate patients' obtaining such services from others. In 2017, a different federal district court judge issued a preliminary injunction against enforcement of the Act. (See prior posting.) In refusing at this stage of litigation to make the injunction permanent, the court said in part:

In this litigation, Plaintiffs allege that the CPCs’ ability to promote their religiously motivated pro-life messaging ... are threatened by changes to the Illinois Healthcare Right of Conscience Act adopted in 2016....The law will compel them, Plaintiffs assert, to discuss the benefits of treatments they deem objectionable: abortion, contraception, or sterilization. Likewise, under the law, Plaintiffs must facilitate those treatments by providing patients with lists of doctors who provide those services or by transferring or referring patients to them. Both requirements violate Plaintiffs’ First Amendment Speech and Free Exercise rights, they claim....

Starting with the requirement to discuss the benefits of abortion, the court agrees with Defendant that as in Casey, this is a regulation of professional conduct that only incidentally burdens speech....

The court is mindful that from Plaintiffs’ perspective, the law compels speech on a message antithetical to their beliefs and thereby contradicts this Free Speech principle. But the court too recognizes that Plaintiffs’ patients are no less deserving of this right to decide for themselves what ideas are worth considering and adhering to, and the state may be well within its powers to protect this principle in a context involving “matters of the highest privacy and the most personal nature.”...

If the law does no more than bring the regulations of conscience objectors into conformity with that of other medical professionals (again, still a disputed issue), then the amended HCRCA may not be characterized as discriminating against religious medical professionals. The law’s text and history ... suggest instead that the legislature adopted the changes due to legitimate concerns about patient access to healthcare and not out of a desire to stifle religiously-motivated conduct.

6th Circuit: Settlement In Long-Running Baptist Children's Home Case Is Unenforceable

In Pedreira v. Sunrise Children's Services, Inc., (6th Cir., Sept. 2, 2020), the U.S. 6th Circuit Court of Appeals, in an Establishment Clause case that has been in litigation for 20 years, held that a proposed modified consent decree that was to settle the case is unenforceable. The case involves a challenge to the state of Kentucky's funding of treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization. (See prior related posting.) The 6th Circuit agreed with the district court that the consent decree violates Kentucky law because it requires enactment of new or modified administrative regulations to be implemented.

Church Says Signage Required To Exclude Guns Burdens Free Speech

Suit was filed in a Texas federal district court earlier this week by a Unitarian Church (and another plaintiff) challenging a Texas law that makes it difficult to exclude individuals carrying firearms from one's property. The complaint (full text) in Bay Area Unitarian Universalist Church v. Paxton, (SD TX, filed 9/2/2020) alleges in part:

Texas has ignored the First Amendment and enacted legislation that singles out a group with which it disagrees—those who prefer to keep guns off of their property—and selectively burdens their speech. Specifically, Texas property owners who espouse this viewpoint must post multiple large, text-heavy signs containing language specified by the State in order to exercise the longest established and most fundamental of their property rights: the right to exclude. If these property owners use other means of indicating that firearms are not welcome on the premises—even if entirely reasonable and understandable—they cannot avail themselves of Texas’s criminal trespass laws. By contrast, property owners who wish to exclude others for any other reason at all do not face these same burdens. This viewpoint-based discrimination was entirely intentional....

The Church has an official policy that forbids carrying firearms, whether open or concealed, onto church property....  One of the most fundamental religious tenets of the Church is to address conflict through conversation, non-violence, love, and compassion. The Church believes that the signs required by the Acts detract from those religious principles.

[Thanks to Scott Mange for the lead.]