Court Upholds NY Law Barring Discrimination Against Employees Because Of Reproductive Health Decisions

In Slattery v. Cuomo, (ND NY, March 31, 2021), a New York federal district court dismissed free exercise, free speech, freedom of association and vagueness challenges to a New York Labor Law §203-e  which prohibits employers from discriminating or taking retaliatory action against an employee because of the person's reproductive health decision making. The law was challenged by a pro-life crisis pregnancy center which required its employees to agree with, adhere to and convey the Catholic view on abortion and sexual relations outside of marriage. The court concluded that the law does not target the Catholic religion in violation of the free exercise clause. Rejecting plaintiffs' free speech challenge, the court said in part:

Section 203-e does not serve to limit any of Plaintiffs’ advocacy against abortion, promotion of certain religious views, and public arguments for particular versions of sexual morality. The statute does not prevent the Plaintiffs, who provide medical information to pregnant women, from telling those women that they should not get abortions, urging them not to use contraception, or telling them about Plaintiffs’ religious beliefs. The statute simply prohibits employers from taking employment action based on the reproductive health decisions of an employee or potential employee. Hiring, firing, or refusing to hire an employee is conduct, not speech, and the law does not implicate Plaintiffs’ First-Amendment rights in that.

Minister Sues To Hold Good Friday Vigil On U.S. Capitol Grounds

On Tuesday, a complaint was filed in D.C. federal district court by a Presbyterian minister who wants to host a prayer vigil on theWestern Terrace of the U.S. Capitol for Good Friday, as he did in 2020.  He was refused a permit because the Capitol grounds have been fenced off since the January 6 attack on the Capitol.  Plaintiff alleges that the denial of a permit violates his free speech, freedom of assembly, free exercise and other rights.  The complaint (full text) in Mahoney v. Pelosi, (D DC, filed 3/30/2021), alleges in part:

In closing the sidewalks and public areas around the Capitol, including the Lower Western Terrace Plaintiff seeks to utilize, Defendants have effectively created a no-speech zone around the nations Capitol. Defendants prevent any First Amendment activities on/in these areas, even though no specific threat to the Capitol has been identified in justification....

Defendants’ restrictions have specifically and explicitly targeted Plaintiff’s religious and “faith based” service and are thus not neutral on their face. Defendants have prohibited Plaintiff’s religious gathering while exempting a laundry list of other activities that occur at the Capitol, including media events, non-religious public gatherings, and various political and other events.

Fox News reports on the lawsuit. [Thanks to Scott Mange for the lead.]

North Dakota Enacts Law To Limit Restrictions On Religious Exercise During Health Emergencies

On March 29, North Dakota Governor Doug Burgum signed into law Senate Bill 2181 (full text) which limits the authority of the State Health Officer and the governor to issue disease control or other emergency orders that restrict the free exercise of religion.  Under the new law, an order may not:

(1) Substantially burden a person's exercise of religion unless the order is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest;

(2) Treat religious conduct more restrictively than any secular conduct of reasonably comparable risk, unless the government demonstrates through clear and convincing scientific evidence that a particular religious activity poses an extraordinary health risk; or

(3) Treat religious conduct more restrictively than comparable secular conduct because of alleged economic need or benefit.

Williston Herald reported on the legislature's passage of the bill.

9th Circuit Upholds California Limits On In-Home Bible Study Groups

In Tandon v. Newsom, (9th Cir., March 30, 2021), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, refused to issue an emergency injunction pending appeal to prevent enforcement of California's COVID-19 limitations against appellants' in-home Bible study and communal worship sessions. The majority said in part:

[T]he district court concluded that the State reasonably distinguishes in-home private gatherings from the commercial activity Appellants assert is comparable. For example, the district court found that the State reasonably concluded that when people gather in social settings, their interactions are likely to be longer than they would be in a commercial setting; that participants in a social gathering are more likely to be involved in prolonged conversations; that private houses are typically smaller and less ventilated than commercial establishments; and that social distancing and mask-wearing are less likely in private settings and enforcement is more difficult.... Appellants do not dispute any of these findings. Therefore, we conclude that Appellants have not established that strict scrutiny applies to the gatherings restrictions.

Judge Bumatay dissented, saying in part:

Even if studying scripture at home risks some level of transmission of COVID-19, the exemptions for barbershops, tattoo and nail parlors, and other personal care businesses reveal that less-restrictive alternatives are available to California to mitigate that concern. If the State is truly concerned about the “proximity, length, and interaction” of private gatherings, as it claims, it could regulate those aspects of religious gatherings in a narrowly tailored way. But the one thing California cannot do is privilege tattoo parlors over Bible studies when loosening household limitations.

Biden To Nominate First Muslim Federal Judge

On Tuesday, President Biden announced eleven nominees for federal judgeships. Among the nominees is  Zahid Quraishi who is to be nominated to the New Jersey federal district court where he is currently a magistrate judge.  As reported by Fox News, if confirmed by the Senate, Quraishi would become the first Muslim American to serve as a lifetime-appointed federal judge.

State Department Releases Country Reports On Human Rights

On Tuesday, the U.S. State Department released its 2020 Country Reports on Human Rights Practices. According to the Department:

The annual Country Reports ... cover internationally recognized individual, civil, political, and worker rights, as set forth in the Universal Declaration of Human Rights and other international agreements.

However for the most part the country reports cross refer to the Department's International Religious Freedom Reports for discussion of religious freedom issues. The 2020 Report on religious freedom has not yet been released.

LGBTQ+ Students Challenge Title IX Religious Institution Exemption

In a class action lawsuit filed earlier this week in an Oregon federal district court, 33 LGBTQ+ students enrolled at religious colleges that receive federal financial assistance challenge the constitutionality of the exemption in Title IX for educational institutions controlled by religious organizations.  The exemption applies if the non-discrimination provisions of Title IX would conflict with the organization's religious tenets. The complaint (full text) in Hunter v. U.S. Department of Education, (D OR, filed 3/29/2021) alleges that the Department of Education's refusal to enforce non-discrimination provisions against religious colleges:

leaves students unprotected from the harms of conversion therapy, expulsion, denial of housing and healthcare, sexual and physical abuse and harassment, as well as the less visible, but no less damaging, consequences of institutionalized shame, fear, anxiety and loneliness.

Alleging equal protection and Establishment Clause claims, plaintiffs contend:

[W]hile the statutory religious exemption to Title IX may permit, or even require, the Department to refuse assistance to sexual and gender minority students like the Plaintiffs, the Constitution forbids such inaction.

NBC News reports on the lawsuit.

UPDATE: An amended complaint (full text) was filed on June 7, 2021).

Virginia Public School Guidance On Transgender Students Is Challenged

Suit was filed yesterday in a Virginia state trial court challenging a guidance document titled Model Policies on the Treatment of Transgender Students In Virginia's Public Schools developed by the Virginia Department of Education (DOE). The guidance document calls for safe, supportive and inclusive school environments for transgender students. The lawsuit filed by a parent and two advocacy organizations contends that during the adoption process, the Department of Education failed to respond to a number comments raising constitutional and other legal objections to the proposed guidance document. The complaint (full text) in Family Foundation v. Virginia Department of Education, (VA Cir. Ct., filed 3/30/2021) alleges that the document violates free speech, free exercise, privacy, equal protection, and parental rights. Family Foundation issued a press release announcing the filing of the lawsuit. AP reported on the lawsuit.

Challenge To Bible In Schools Program Survives Motion To Dismiss

In Freedom From Religion Foundation, Inc. v. Mercer County Board of Education, (SD WV, March 26, 2021), a West Virginia federal district court denied a motion to dismiss filed by a school principal in an Establishment Clause challenge to the county's Bible in the Schools program. The court also found that it is impossible to determine at this stage of the case whether the principal is entitled to qualified immunity.

Anti-Abortion Protesters Lose Challenge To D.C.'s Defacement Ordinance

In Frederick Douglass Foundation, Inc. v. District of Columbia,  (DDC, March 26, 2021), the federal district court for the District of Columbia refused to enjoin enforcement of D.C.'s Defacement Ordinance against two groups that organized an anti-abortion demonstration. Protesters attempted to paint or chalk the streets with their slogan "Black Pre-Born Lives Matter." The court rejected plaintiffs' free speech, equal protection, RFRA and free exercise claims. Plaintiffs claim that the Ordinance is enforced in a viewpoint discriminatory manner in that "Black Lives Matter" and "Defund the Police" protesters were not prosecuted. The court said in part, however:

It seems far more plausible, rather, that law enforcement opted against enforcing the Ordinance [against Black Lives Matter protesters] in light of the foreseeable risks of intervention in the moment — e.g., inflaming what may well have already been a tense, fervent, and chaotic protest scene.

South Dakota Governor Issues Executive Orders On Transgender Women In Sports After Vetoing Legislation On The Issue

On March 8, the South Dakota Legislature gave final passage to HB1217 which banned transgender women from participating on women's athletic teams or sports in schools and colleges in the state. It also included various enforcement provisions. On March 19, Governor Kristi Noem, instead of signing the bill, returned it to the legislature with a number of suggested changes. When the legislature failed to act on those changes, the Governor instead issued two executive orders to deal with the issue. Executive Order 2021-05 bans transgender girls from participation in girl's athletics in Grade K-12 public schools, but eliminates the causes of action and much of the paper work that was in HB1217. Executive Order 2021-06 calls for the Board of Regents to take the steps necessary within state law to implement a similar policy for colleges and universities controlled by the Board of Regents. CNN reports on the governor's actions.

Recent Articles of Interest

 From SSRN:

• Giancarlo Anello, The Concept of 'Contractual Citizenship' in the Charter of Medina (622 C.e.): A Contemporary Interpretation, (Islamochristiana, Journal of the PISAI Rome (2021)).
• Engy Abdelkader, Myanmar's Rohingya Population: The Case for Genocide, (Oxford University Press,  2021).
• Howard Kislowicz & Kathryn Chan, Divine Intervention, Part II: Narratives of Norm Entrepreneurship in Canadian Religious Freedom Litigation, (Dalhousie Law Journal (Forthcoming)).
• Arnab Kumar Banerjee, Uniform Civil Code: A Need Of Hour, March 1, 2021).
• Brian Miller, Changing Demographics and the Future of Religious Exercise, (January 28, 2021).
• Kanstantsin Dzehtsiarou, et. al., Human Rights in Action. Assessing the Positive Impact of the Human Rights Act 1998 in the UK, (March 3, 2021).
• Nathan Moelker, Beyond Bostock: Justice Gorsuch's Free Exercise Jurisprudence as a Model in Addressing the Contemporary Crisis in Religious Liberty, (December 23, 2020).
• Ronli Sifris & Tania Penovic, Barriers to Abortion Access in Australia before and during the COVID-19 Pandemic, (Women's Studies International Forum (2021)).
• Dr. Rifai Sulaiman Lebbe, Some Challenges in Sri Lankan Muslim Education Today, (March 21, 2021).
• Eric Franklin Amarante, States as Laboratories for Charitable Compliance: An Empirical Study, (George Washington Law Review, Forthcoming).

DC's Capacity Restrictions On Churches Held Invalid

In Roman Catholic Archbishop of Washington v. Bowser, (D DC, March 25, 2021), the D.C. federal district court granted a preliminary injunction against D.C.'s COVID-19 capacity restrictions on houses of worship, finding that they violate the 1st Amendment as well as RFRA. The limit of the lesser of 25% or 250 congregants particularly affects the  Basilica of the Shrine of the Immaculate Conception which seats at least 3000 people. The court said in part:

In practical terms, this means that the Archdiocese’s churches must stop admitting parishioners once they become a quarter full, but Whole Foods or Target can take in as many customers as they wish while complying with social-distancing requirements. “[O]nce a State creates a favored class of businesses, as [the District] has done in this case, [it] must justify why houses of worship are excluded from that favored class.”....

The District’s restrictions are also problematic because the 250-person cap uniquely burdens churches. The Mayor’s order explained that the District set the hard cap at 250 based on the number of persons that “the largest restaurant” could serve at 25 percent capacity....   But as the District admits, “no restaurant in the District has a room that can hold 1,000 people.”

Courthouse News Service reports on the decision.

Arkansas Enacts Conscience Protections For Medical Personnel

Last Friday, Arkansas Governor Asa Hutchinson signed SB289, the Medical Ethics and Diversity Act (full text). The law gives broad protection for medical practitioners, healthcare institutions, and healthcare payers who have religious, moral or ethical objections to participating in a particular healthcare service. Protections extend to a long list of providers, including doctors, nurses, pharmacists, researchers. counselors and student counselors. In his signing statement, the Governor said in part:

I support this right of conscience so long as emergency care is exempted and conscience objection cannot be used to deny general health service to any class of people. Most importantly, the federal laws that prohibit discrimination on the basis of race, sex, gender, and national origin continue to apply to the delivery of health care services.

ADF issued a press release regarding the signing. 

Certiorari Denied In Church's Challenge To Illinois COVID Restrictions

The U.S. Supreme Court today denied review in Elim Romanian Church v. Pritzker, (Docket No. 20-569, certiorari denied, 3/29/2021). (Order List).  In the case, the U.S. 7th Circuit Court of Appeals rejected a church's challenge to Illinois Governor J.B. Pritzker's COVID-19 orders which restrict-- or in their latest form urge restriction-- on the size of worship services. (See prior posting.)

Supreme Court Will Decide If State AG Can Intervene To Defend Abortion Statute

The U.S. Supreme Court today granted review in Cameron v. EMW Women’s Surgical Center, P.S.C., (Docket No. 20-601, certiorari granted 3/29/2021). (Order List). In the case, the U.S. 6th Circuit Court of Appeals refused to allow the state attorney general to intervene to defend the constitutionality of a Kentucky statute which banned D&E abortions prior to fetal demise. EMW Women's Surgical Ctr., P.S.C. v. Friedlander, 831 Fed. Appx. 748 (LEXIS link). The AG sought to intervene after the 6th Circuit held the statute unconstitutional and no state official would seek a rehearing or an appeal. The certiorari petition raises the issue of whether intervention should be allowed. Here is the SCOTUSblog's discussion of the grant of review and its case page on the case.

6th Circuit: Prof Has 1st Amendment Right To Refuse To Call Transgender Student By Preferred Pronoun

In Meriwether v. Hartop, (6th Cir., March 26, 2021), the U.S. 6th Circuit Court of Appeals held that Shawnee State University violated the free speech and free exercise rights of a philosophy professor when the school insisted that the Professor address a transgender student by her preferred gender pronoun. The professor objected because of his Christian religious beliefs that God created human beings as either male or female at the time of conception and this cannot be changed. Upholding plaintiff's free speech rights, the court said in part:

Never before have titles and pronouns been scrutinized as closely as they are today for their power to validate—or invalidate—someone’s perceived sex or gender identity. Meriwether took a side in that debate. Through his continued refusal to address Doe as a woman, he advanced a viewpoint on gender identity. …  In short, when Meriwether waded into the pronoun debate, he waded into a matter of public concern….

We begin with “the robust tradition of academic freedom in our nation’s post-secondary schools.” … That tradition alone offers a strong reason to protect Professor Meriwether’s speech. After all, academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

The court also reversed the trial court's dismissal of Prof. Meriwether's free exercise claim:

Meriwether has plausibly alleged that Shawnee State’s application of its gender-identity policy was not neutral for at least two reasons. First, officials at Shawnee State exhibited hostility to his religious beliefs. And second, irregularities in the university’s adjudication and investigation processes permit a plausible inference of non-neutrality.

Inside Higher Ed reports on the decision.

Massachusetts City Council Recognizes Polyamorous Domestic Partnerships

On March 8, Cambridge, Massachusetts City Council adopted amendments to the city's Domestic Partnership Ordinance allowing polyamorous domestic partnership.  The ordinance now provides that

"Domestic partnership" means the entity formed by two or more persons who meet the following criteria and jointly file a registration statement proclaiming that: 1. They are in a relationship of mutual support, caring and commitment and intend to remain in such a relationship; ... 5. They consider themselves to be a family.

CNA reporting on the amendment points out that Cambridge becomes the second town, after Somerville, to legally recognize such domestic partnerships.

British Court Holds Jehovah's Witness Parent Body Vicariously Liable For Rape By Elder

 In Trustees of the Barry Congregation of Jehovah's Witnesses v. BXB,(EWCA, March 15, 22021), Britain's Court of Appeals upheld a trial court's conclusion that the Watch Tower Bible and Tract Society of Pennsylvania and the Trustees of the Barry Congregation of Jehovah's Witnesses were vicariously liable for the rape of a woman congregant by a church elder. Justice Davies said in part:

Elders were integral to the organisation, the nature of their role was directly controlled by it and by its structure. The judge was entitled to conclude that the relationship between elders and the Jehovah's Witnesses was one that could be capable of giving rise to vicarious liability....

UK Human Rights blog has a long analysis of the decision.

Emhoff Hosts Online White House Seder

As reported by The Forward, the White House yesterday held an online Passover Seder hosted by Second Gentleman Douglas Emhoff, the first Jewish spouse of a President of Vice-President.  President Joe Biden delivered brief remarks during the one-hour program in which Los Angeles Rabbi Sharon Brous led the nearly 10,000 online viewers through the major parts of the Seder. Various White House staffers took participated in the presentation.