2nd Circuit: Vermont May Not Exclude Religious School Students From Dual Enrollment Program

In A.H. v. French, (2d Cir., Jan. 15, 2021), the U.S. 2nd Circuit Court of Appeals held that a preliminary injunction should issue to allow funding of a high school student's college enrollment under Vermont's Dual Enrollment Program. Vermont statutes pay for high schoolers in public schools to take two college courses. Students in private high schools are eligible to take advantage of the Dual Enrollment Program only if their high school tuition is publicly funded. Under a separate program-- the Town Tuition Program-- school districts that do not have high schools are to fund students' tuition in either out-of-district public high schools or secular private high schools. In this case, a student was denied participation in the Dual Enrollment Program because her high school was religious and thus was denied public funding under the Town Tuition Program. the court said in part: 

In these circumstances, the State’s reliance on the “publicly funded” requirement as a condition for DEP eligibility imposes a “penalty on the free exercise of religion.”...

Judge Menashi filed a concurring opinion. ADF issued a press release announcing the decision.

8th Circuit Hears Oral Arguments In Missouri Vaccination Exemption Case

On Tuesday, the U.S. 8th Circuit Court of Appeals heard oral arguments (audio of full arguments) in two cases consolidated for argument-- B.W.C. v. Williams and G.B. v. Crossroads Academy. In the cases, a Missouri federal district court rejected constitutional challenges by parents to the form that Missouri requires to be completed in order to claim a religious exemption for a school child from vaccination requirements. The form contains language strongly encouraging parents to obtain vaccinations for their children. (See prior posting.) Courthouse News Service reports on the oral arguments. [Thanks to Scott Mange for the lead.]

Apache Leaders Sue To Prevent Forest Service Transfer of Religious Site

Suit was filed this week in an Arizona federal district court on behalf of traditional Apache religious and cultural leaders seeking to prevent the U.S. Forest Service from transferring to mining companies a parcel of land used by the Western Apache Peoples for traditional religious ceremonies. The complaint (full text) in Apache Stronghold v. United States, (D AZ, filed 1/12/2021) alleges in part:

The deliberate and direct effect of the Defendants’ publicly stated plans and planned actions is to illegally annihilate the religious freedom rights of the Western Apache Peoples at a sacred and actively utilized religious place and traditional Western Apache cultural property known to the Apache since time immemorial as Chi’chil Biłdagoteel [or] as it is commonly known: “Oak Flat.” ***

[T]he Forest Service ... has suddenly publicly stated for the first time its intent to publish a Final Environmental Impact Statement ... on ... January 15, 2021.  That ... will immediately enable the Forest Service to attempt to convey a 2,422-acre parcel of “Forest Service land” to an entity owned entirely by foreign mining corporations, pursuant to a mandate in Section 3003 of the “Cromnibus” National Defense Authorization Act of 2015 ... slipped in at the 11th hour with a total federal government operational shutdown looming....

Apache Stronghold issued a press release announcing the filing of the lawsuit. 

DOL Says That Ministerial Exception Allows Non-Compliance With FLSA For Religious Teachers

The U.S. Department of Labor has released a January 8, 2021, Wage and Hour Opinion Letter (full text) concluding that the "ministerial exception" doctrine can create an exemption to the Fair Labor Standards Act's requirements. The letter concludes that a private religious day care and pre-school may pay its teachers on a salary basis that would not otherwise conform to the wage-and-hour requirements of the Fair Labor Standards Act if the teachers qualify as "ministers" for purposes of the ministerial exception. [Thanks to Heather Kimmel for the lead.]

8th Circuit Hears Arguments In College's Deregistration of Christian Student Group

The U.S. 8th Circuit Court of Appeals yesterday heard oral arguments in InterVarsity Christian Fellowship USA v. University of Iowa. (Audio of full oral arguments.)  In the case,  an Iowa federal district court held that the University of Iowa and three of its administrators violated the free speech and free exercise rights of a Christian student organization when it revoked its registered student organization status. The University's action was taken because Intervarsity Christian Fellowship required its leaders to affirm the group's Christian statement of faith. The court also denied defendants' claim of qualified immunity. (See prior posting.) Becket Law has a press release with links to some of the documents in the case.

New Law Elevates Anti-Semitism Monitor To Rank of Ambassador

Yesterday President Trump signed HR 221, Special Envoy to Monitor and Combat Anti-Semitism Act (full text). The new law elevates the Special Envoy to the rank and status of ambassador.

National Association of Realtors Bans Hate Speech By Its Members

In a previously little-noticed change to its Code of Ethics, the National Association of Relators has instituted a ban on hate speech by its 1.4 million members. The changes (full text) were adopted Nov. 13, 2020. Some of the changes became effective immediately and others became effective January 1, 2021. New Standard of Practice 10-5 provides:

REALTORS® must not use harassing speech, hate speech, epithets, or slurs based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity.

The Association has posted an FAQ document to explain the new policies.  KULR News yesterday reported on the changes:  

The sweeping prohibition applies to association members 24/7, covering all communication, private and professional, written and spoken, online and off. Punishment could top out at a maximum fine of $15,000 and expulsion from the organization.

NAR’s decision, allowing any member of the public to file a complaint, has alarmed other real estate agents, and also some legal and ethics experts, who say the hate speech ban’s vagueness is an invitation to censor controversial political opinions, especially on race and gender....

Some real estate agents fear the new speech code will be used to censor agents who express disapproval of affirmative action, gay marriage, transgender pronouns, Black Lives Matter, undocumented immigrants or other politicized issues.

Among those caught up in the uncertainty are real estate agents who are Christian preachers or Sunday school teachers, or anyone who expresses traditional religious views on gender and sexuality that are out of vogue in some circles today.

Supreme Court Allows Enforcement of FDA Rule On Medical Abortions While Appeals Are Pending

The U.S. Supreme Court in Food & Drug Administration v. American College of Obstetricians & Gynecologists, (US Sup. Ct., Jan 12, 2021), stayed a Maryland federal district court's injunction pending appeal of an FDA rule on access to medical abortions. The FDA requires mifepristone, one of two drugs necessary for a medical abortion, to be picked up in person by the patient at a hospital, clinic or medical office.  The district court had continued to enjoin that requirement during the COVID epidemic, even though in October the Supreme Court had sent the case back for further consideration by the district court.  Now, in a case on its so-called "shadow docket" (cases seeking emergency relief without full oral argument) the Supreme Court in an unsigned opinion has granted a stay of the injunction pending disposition of appeals in the 4th Circuit and Supreme Court.

Chief Justice Roberts filed a brief concurring opinion, stating in part:

The question before us is not whether the requirements for dispensing mifepristone impose an undue burden on a woman’s right to an abortion as a general matter. The question is instead whether the District Court properly ordered the Food and Drug Administration to lift those established requirements because of the court’s own evaluation of the impact of the COVID–19 pandemic. Here as in related contexts concerning government responses to the pandemic, my view is that courts owe significant deference to the politically accountable entities with the “background, competence, and expertise to assess public health.”

Justice Sotomayor, joined by Justice Kagan, filed a dissenting opinion, saying in part:

Due to particularly severe health risks, vastly limited clinic options, and the 10-week window for obtaining a medication abortion, the FDA’s requirement that women obtain mifepristone in person during the COVID–19 pandemic places an unnecessary and undue burden on their right to abortion....

What rejoinder does the Government have to the possibility that refusing to suspend the FDA’s in-person requirements for mifepristone during the COVID–19 pandemic will cause some women to miss the 10-week window altogether? No cause for concern, the Government assures this Court, because even if the FDA’s in-person requirements cause women to lose the opportunity for a medication abortion, they can still seek out a surgical abortion. What a callous response.

Justice Breyer dissented without filing or joining an opinion.  SCOTUSblog has further coverage of the decision.

Colorado Supreme Court: Same-Sex Common Law Marriages Before Obergefell Are Valid

In In re Marriage of LaFleur & Pyfer, (CO Sup. Ct., Jan. 11, 2021), the Colorado Supreme Court held that a court may recognize as a common law marriage a relationship entered into by same-sex couples before the U.S. Supreme Court's Obergefell decision that legalized same-sex marriages. Chief Justice Boatright concurred in part. Justice Samour dissented. In In re Marriage of Hogsett & Neale, decided at the same time, the Colorado Supreme Court refined the test for common law marriages in Colorado.

Supreme Court Will Hear Arguments Today In College Speech Policy Case

The U.S. Supreme Court hears oral arguments this morning in Uzuegbunam v. Preczewski. The case grows out of a challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature on campus. Subsequently, the school changed its policies.  The U.S. 11th Circuit Court of Appeals held that the change mooted plaintiff's claim for nominal damages. (See prior posting.) The 10:00 am oral arguments may be viewed live at this link. I will update this post to include a link to the written transcript of the arguments when it becomes available later today. SCOTUSblog's case page contains links to all the briefs filed in the case. Colorado Politics reports on the decisions.

UPDATE: Here are links to the transcript and audio of the oral arguments.

DOE Says Bostock Decision Does Not Apply To Title IX

 As reported by Education Week, the U.S. Department of Education has released a Jan. 8, 2021 Memorandum (full text) on the impact of the U.S. Supreme Court's Bostock decision on Title IX. While Bostock held that the ban on sex discrimination in Title VII includes discrimination on the basis of sexual orientation and gender identity, the DOE Memo concludes that Bostock does not apply to Title IX, saying in part:

[T]he Department’s longstanding construction of the term “sex” in Title IX to mean biological sex, male or female, is the only construction consistent with the ordinary public meaning of “sex” at the time of Title IX’s enactment.

The memo goes on to provide that some kinds of discrimination based on a person's homosexuality or transgender status may violate Title IX because the discrimination takes into account the person's biological sex.  Examples are employment discrimination and sexual harassment. However, in other educational situations, Title IX does not protect against sexual orientation or gender identity discrimination:

We believe the ordinary public meaning of controlling statutory and regulatory text requires a recipient providing separate athletic teams to separate participants solely based on their biological sex, male or female, and not based on transgender status or homosexuality, to comply with Title IX.

Under Title IX and its regulations, a person’s biological sex is relevant for the considerations involving athletics, and distinctions based thereon are permissible and may be required because the sexes are not similarly situated.

Disagreeing with two Circuit Court opinions, the memo states:

[W]e believe the plain ordinary public meaning of the controlling statutory and regulatory text requires a recipient providing “separate toilet, locker room, and shower facilities on the basis of sex” to regulate access based on biological sex.

The Memorandum also recognizes that religious exemptions under Title IX and RFRA still apply.

Supreme Court Denies Review In Discrimination Suit By Muslim Flight Attendant

The U.S. Supreme Court today denied review in Stanley v. ExpressJet Airlines, Inc., (Docket No. 20-495, certiorari deied 1/11/2021). (Order List.) In the case, the U.S. 6th Circuit Court of Appeals held that a Muslim flight attendant's religious discrimination claim should have been submitted to arbitration. It also rejected her retaliation claim. The flight attendant sought a religious accommodation so that she would not need to prepare or serve alcohol during flights. At issue in the case was the scope of the Railway Labor Act's mandatory arbitration provisions.

Supreme Court Denies Review In Clinic Buffer Zone Case

The U.S. Supreme Court today denied review in Bruni v. City of Pittsburgh, Pennsylvania, (Docket No. 19-1184, certiorari denied 1/11/2021). (Order List [scroll to pg. 25]). In the case, the U.S. 3rd Circuit Court of Appeals upheld a Pittsburgh ordinance that creates a 15-foot buffer zone outside any health care facility, including a Planned Parenthood clinic. Congregating, patrolling, picketing and demonstrating in such areas are banned. (See prior posting.) Justice Thomas added a statement to his vote to deny review, saying that in an appropriate case the Court should re-examine whether intermediate scrutiny is the correct test in buffer zone cases. ADF issued a press release on the denial of certiorari.

Recent Articles of Interest

 From SSRN:

• Jake Young, Qualified Immunity and Religious Liberty (December 10, 2020).
• Marc O. DeGirolami, Reconstructing Malice in the Law of Punitive Damages,14 Journal of Tort Law (Forthcoming).
• Louis E. Wolcher, The Time of Religion and Human Rights, (Journal of Human Rights, Vol. 14, No. 2, Pp. 137-82 (Fall 2019–Winter 2020)).
• Raphael Cohen-Almagor, Taking Profound Offence Seriously: Freedom of Speech v. Human Dignity, (Journal of Hate Studies, Vol. 16(1) (2020): 1–11).
• Husam Suleiman, Defining 'Islamic Finance' ,(October 29, 2020).

From SmartCILP:

• Bill Raley, How Conscientious Objectors Killed the Draft: The Collapse of the Selective Service during the Vietnam War, 68 Cleveland State Law Review 151-171 (2020).
• Winston Bowman, Feat of Clay: Muhammad Ali's Legal Fight against the Vietnam Draft, [Abstract], 44 Journal of Supreme Court History 307-324 (2019).

Supreme Court Wil Hear Challenge To California Donor-Disclosure Requirement

The U.S. Supreme Court on Friday granted certiorari in Thomas More Law Center v. Becerra (Docket No. 19-255, cert. granted 1/8/2021) and Americans for Prosperity Foundation v. Becerra (Docket No. 19-251, cert. grange 1/8/2021) (Order List), and consolidated the cases for oral argument.  At issue is a California administrative rule requiring non-profit organizations that wish to solicit tax deductible contributions in the state to file an annual report that includes an unredacted IRS Form 990 Schedule B. That Schedule contains the names and contributions of significant donors. Thomas More Law Center, which describes itself in its petition for certiorari as a non-profit organization that defends religious freedom, family values, and the sanctity of life, argues in its cert. petition:

For those associated with charities that speak on contentious matters—like Petitioner the Thomas More Law Center (the “Law Center”)—disclosing donor information to the Attorney General’s Registry poses an imminent danger of hate mail, violence, ostracization, and boycotts. Only the most stalwart supporters will give money under such a toxic cloud. Most will reasonably conclude that the risk of association is too great, with the result that groups who make the most threats will effectively shut down those with whom they disagree.

See prior related posting. SCOTUSblog case pages (1, 2) for the cases have links to all the pleadings and related materials.

Ministerial Exception Applies To Title IX Hostile Work Environment Claims

In Koenke v. Saint Joseph's University, (ED PA, Jan. 8, 2021), a woman employed by a Catholic university sued under Title IX claiming sexual orientation discrimination.  The court held that the Supreme Court's Bostock decision should be read to apply to sexual orientation discrimination under Title IX as well as under Title VII. All the parties agreed that plaintiff's position as Assistant Director for Music and Worship was a "ministerial" position for purposes of the ministerial exception. However plaintiff claimed that the ministerial exception does not apply to non-tangible employment discrimination claims such as hostile work environment.  The court disagreed, saying in part:

[H]ostile work environment claims, particularly those brought pursuant to Title VII or Title IX, clearly fall within the scope of cases banned by the ministerial exception.... The Supreme Court has not cabined the ministerial exception to tangible or intangible employment actions, and it is not for this Court to create such an exception to binding precedent.

HHS Adopts Amended Rules Reducing LQBTQ Anti-Discrimination Protections

The Department of Health and Human Services yesterday adopted final rules (full text of Release adopting rules) which narrow LGBTQ non-discrimination protections.  Previously, 45 CFR 75.300(c) barred discrimination on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation in receiving benefits of HHS programs or in administering funded programs. The newly amended rule instead reads:

It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services, to the extent doing so is prohibited by federal statute.

Previously 45 CFR 75.300(d) required grant recipients to treat same-sex marriages as valid. The newly amended rule instead reads:

HHS will follow all applicable Supreme Court decisions in administering its award programs.

In its 86-page release adopting the rule, HHS said that enforcing the prior rule may violate the Religious Freedom Restoration Act. ADF issued a press release announcing the adoption of the new rules. Americans United issued a press release criticizing the new rule.

Religious Leaders React To Storming Of Capitol By Trump Supporters

Religion News Service has published excerpts from separate statements from over 20 faith leaders across the country reacting to the storming of the U.S. Capitol yesterday by supporters of President Trump who were seeking to stop certification of Electoral College votes. For example, Southern Baptist Convention President J.D. Greear said:

Peaceable transitions of power have marked our Republic since the beginning. It is part of honoring and submitting to God’s ordained leaders whether they were our choice or not. We need you, @POTUS to condemn this mob. Let’s move forward together. Praying for safety.

Texas Supreme Court Hears Oral Arguments In Ecclesiastical Abstention Case

The Texas Supreme Court yesterday heard oral arguments in Diocese of Lubbock v. Guerrero, consolidated for argument with In Re Diocese of Lubbock. (Video of oral arguments.) The court's website describes the case:

In this defamation case by a deacon among a list of clergy published on the church website and in a press release, the issues are (1) whether the ecclesiastical-abstention doctrine bars the libel claim when a church internally decides to disclose inside information to the public at large and (2) whether Guerrero, the deacon, presented clear and specific evidence establishing a prima facie case of each element of his defamation claim.

Links to the pleadings and briefs in the cases can be found here and here. Courthouse News Service reports on the oral arguments.

Massachusetts COVID Requirements For Church Services Upheld

In Delaney v. Baker, (D MA, Jan. 6, 2021), a Massachusetts federal district court rejected plaintiff's claims that COVID-19 orders imposing maximum occupancy limits and requiring a mask and social distancing at Catholic religious services, as well as more general mask requirements, violate his free exercise rights. The court held that plaintiff's claims as to restrictions at religious services should be dismissed for lack of standing:

Delaney’s ... challenge ... that his First Amendment right to freely exercise his religion is infringed by the maximum occupancy limits, fails.... This injury is not concrete and particularized, nor is it actual or imminent.... The joint finding is devoid of any evidence that Delaney was ever denied access to his parish church, let alone that such a denial was due to Governor Baker’s occupancy limit....Delaney also argues that the mask mandate violates his religious beliefs and therefore his First Amendment right to the free exercise of his religion and that the social distancing guidelines for churches are an affront to the free exercise of his religion.... Setting aside, for a moment, the mask mandate outside of Delaney’s parish, the mask mandate within his parish and Delaney’s injury from the social distancing guidelines within his parish fail to allege a redressable injury.... Delaney is claiming that Governor Baker’s orders are the cause of his parish’s protocols which are infringing on the exercise of his religion.... There is no evidence, however, that the Archdiocese instituted its protocols only because of Governor Baker’s orders, and even had it done so, there is no evidence that a favorable ruling would result in redress of Delaney’s injury....

As to the more general mask requirement, the court said in part:

Governor Baker’s orders for all residents to wear masks are rationally related to the interest in stemming the spread of COVID-19 because, as the parties stipulated in the joint finding, “[i]t has been proven that the wearing of masks can slow the transmission of the spread of the coronavirus.”....

Delaney’s challenge suffers the same fate under the more deferential Jacobson standard.