11th Circuit: Rastafarian Paramedic Was Offered Reasonable Accommodation

In Bailey v. Metro Ambulance Services, Inc., (11th Cir., April 6, 2021), the U.S. 11th Circuit Court of Appeals held that an ambulance company had offered a Rastafarian paramedic a reasonable accommodation of his religious beliefs as required by Title VII. The court said in part:

AMR offered Bailey a reasonable accommodation. It provided Bailey with the opportunity to maintain his beard and to work on the non-emergency-transport side of its operations, for which DeKalb County’s facial-hair policy did not apply. Had Bailey accepted the offer, his salary, hours, and job description would have remained the same as if he had worked either exclusively on the emergency side or on both the emergency and non-emergency sides of AMR’s operations. As a result, his terms and conditions of employment would not have been affected by the accommodation AMR offered.

Judge Rosenbaum filed a concurring opinion. [Thanks to Joshua Sarnoff via Religionlaw for the lead.]

Muslim Group Sues Facebook For Consumer Fraud Because of Online Hate Speech

The non-profit organization Muslim Advocates filed suit yesterday in District of Columbia Superior Court against Facebook and its executives alleging that their failure to take down anti-Muslim posts, while claiming to do so, is fraudulent and violates the D.C. Consumer Protection Procedures Act.  The complaint (full text) in Muslim Advocates v. Zuckerberg, (DC Super. Ct., filed 4/8/2021) alleges in part:

Every day, ordinary people are bombarded with harmful content in violation of Facebook’s own policies on hate speech, bullying, harassment, dangerous organizations, and violence. Hateful, anti-Muslim attacks are especially pervasive on Facebook. 

Yet Facebook refuses to “remove” this content or “take it down,” as its executives repeatedly promised that they and the company would do when they learn of such content. Instead, in an effort to convince Congress, civil rights groups, and the public that their product is safe, Facebook’s officials have consistently misrepresented the company’s actual practices when it comes to enforcing Facebook’s own its own standards and policies to keep Facebook free of hate speech and other harmful content....

Facebook has been used, among other things, to orchestrate the Rohingya genocide in Myanmar, mass murders of Muslims in India, and riots and murders in Sri Lanka that targeted Muslims for death. Anti-Muslim hate groups and hate speech run rampant on Facebook with anti-Muslim posts, ads, private groups, and other content.....

Washington Post reports on the lawsuit.

Christian Wedding Photographer Sues Over NY Public Accommodation Law

Suit was filed this week in a New York federal district court challenging on 1st Amendment grounds the application of New York's public accommodation law to a Christian wedding photographer.  Among other things, the law broadly prohibits sexual orientation discrimination.  The complaint (full text) in Emilee Carpenter, LLC v. James, (WD NY, filed 4/6/2021), alleges in part:

[T]he Accommodations Clause ... makes it unlawful for Emilee to treat photography requests for same-sex engagements and weddings different from photography requests for opposite-sex weddings—whether by responding to the former more slowly, by always referring the former to another photographer, or by offering any part of her services to the latter but not the former, such as posting wedding photographs or blogs for opposite-sex weddings on her website but not posting wedding photographs or blogs for same-sex weddings.

... In short, the Accommodations Clause forces Emilee to celebrate same-sex engagements or weddings and would require her to promote messages that violate her religious beliefs or require her to participate in religious ceremonies that violate her religious beliefs, something she cannot do....

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

7th Circuit: Walmart Need Not Accommodate Seventh Day Adventist

In EEOC v. Walmart Stores East, L.P., (7th Cir., March 31, 2021), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, held that accommodating the scheduling need of a Seventh Day Adventist would impose an undue burden on Walmart. The majority, in an opinion by Judge Easterbrook, said in part:

According to the EEOC, Walmart could have offered Hedican several accommodations that would have enabled him to be an assistant manager. One would have been to give him that job and let him trade shifts with other assistant managers. But that would not be an accommodation by the employer, as Title VII contemplates. This proposal would thrust on other workers the need to accommodate Hedican’s religious beliefs. That’s not what the statute requires..... Title VII does not require an employer to offer an “accommodation” that comes at the expense of other workers.

Judge Rovner dissented, saying in part:

Although Ahern considered whether it might be feasible to adjust other assistant managers’ schedules in some manner (including voluntary shift‐trades) so that Hedican would never have to work on a Friday night or Saturday, one thing she did not do is consult with the other managers in making her assessment....

Discussion of the difficulty of accommodating Hedican brings to mind the sorts of excuses employers long trotted out for why it was impractical to hire women of child‐bearing age....

JD Supra reports on the decision.

Suit Against Alabama Is Dropped After Voter Registration Form Is Amended

Last October, the Freedom From Religion Foundation sued Alabama's Secretary of State challenging language in Alabama's voter registration form. The oath in the form ends with "so help me God." (See prior posting.) Yesterday, FFRF announced that it is voluntarily dismissing the suit because Alabama has amended the form to allow voters to opt out of that language. The new mail-in form allows a voter to check a box that says, "OPTIONAL: Because of a sincerely held belief, I decline to include the final four words of the oath above." The online form has also been changed.

Missouri Supreme Court Upholds Some Claims of Failure To Supervise Abusive Clergy

In John Doe 122 v. Marianist Province of the United States, (MO Sup. Ct., April 6, 2021), the Missouri Supreme Court dismissed negligent supervision claims of plaintiff who was sexually abused by a Marianist brother in the early 1970's. In dismissing the claim, the court relied on its earlier precedent in Gibson v. Brewer, (1997). However the court reversed the trial court's dismissal of plaintiff's intentional failure to supervise claims, saying in part:

Using all of the evidence before them, including Father Doyle’s expert testimony, the jury may infer Chaminade knew the risk that Brother Woulfe would visit sexual abuse upon a student was certain or substantially certain and – if so – whether Chaminade disregarded that known risk. And they may not. The only issue before this Court, and the issue on which the circuit court erred, is whether Father Doyle’s testimony (taken together with all the other evidence) is sufficient for the jury to draw that inference reasonably if persuaded to do so. This Court concludes there is.... 

St. Louis Today reports on the decision.

British Court Says Removal of Franklin Graham Bus Ads Violated Religion and Speech Rights

In Lancaster Festival of Hope With Franklin Graham v. Blackpool Borough Council, (Manchester Cty. Ct., April 1, 2021), a British trial court held that the Equality Act 2010 and the European Convention on Human Rights were violated when banner ads for the Lancaster Festival of Hope were removed from public buses. According to the court:

Upon the Defendants receiving complaints from members of the public about the advertisements, the advertisements were removed from the buses. The complaints related to Franklin Graham and his association with the Festival, and predominantly referred to his views on homosexuality and same-sex marriage as being offensive.

In finding a violation of the Equality Act, the court said in part:

The complaints arose from the objections of members of the public to the religious beliefs. The removal came about because of those complaints. I find it also came about because the Defendants allied themselves on the issue of the religious beliefs with the complainants, and against the Claimant and others holding them. If there were any doubt about that it is made explicit by the content of the press statement issued on behalf of the Second Defendant when the advertisements were removed....

Finding a violation of the European Convention, and thus of the Human Rights Act 1998, the court said in part:

Yes, the Claimant was still able to advertise its event and yes, it was still a success. But “it turned out all right in the end” cannot be an answer to the question of whether the interference with a fundamental right to freedom of expression can be justified. The Defendants had a wholesale disregard for the right to freedom of expression possessed by the Claimant. It gave a preference to the rights and opinions of one part of the community without having any regard for the rights of the Claimant or those who shared its religious beliefs. It made no effort to consider whether any less intrusive interference than removing the advertisements altogether would meet its legitimate aim.

Christianity Daily reports on the decision.

Suit Says Housing Discrimination Based On Family Size Is Religious Discrimination Against Orthodox Jews

A lawsuit was filed yesterday in a New York federal district court by a couple who claim that the city's public housing rules which effectively limit the size of families that are eligible for apartments through the affordable housing lottery operate to discriminate against Orthodox Jewish families. The complaint (full text) in Katz v. New York City Housing Preservation & Development, (SD NY, filed 4/6/2021) alleges:

Plaintiffs and their family members have a sincerely held religious belief that having a large family is both an obligation and a blessing from God....

Orthodox Jewish families are at an inherent disadvantage in applying for affordable housing lotteries, because even the average family, with 4.1 children, would exceed the maximum family size requirement of 6 individuals.

Plaintiffs allege that the policy violates city, state and federal anti-discrimination laws as well as the 1st Amendment.   AP reports on the lawsuit.

Republican Arkansas Governor Vetoes Bill Banning Gender Transition Procedures [Update: Veto Override]

 As reported by NPR, Arkansas Republican Governor Asa Hutchinson yesterday vetoed Arkansas House Bill 1570 ("Save Adolescents From Experimentation (SAFE) Act") which prohibits physicians from providing gender transition procedures to minors. Hutchinson told reporters that the bill would set:

new standards of legislative interference with physicians and parents as they deal with some of the most complex and sensitive matters involving young people.

A majority of the Arkansas legislature can override the Governor's veto.

UDATE: On April 6, the Arkansas legislature overrode the Governor's veto by a vote of 71-24. (ABC News).

Suit Claims Enforcement of Deed Restriction Against Synagogue Violates Religious Exercise Rights

Suit was filed late last month in a Texas federal district court against the City of Houston seeking to block it from enforcing a deed restriction against a small Orthodox synagogue that meets in a house zoned only for residential use.  The complaint (full text) in TORCH (Torah Outreach Resource Center of Houston) v. City of Houston, Texas, (SD TX, filed 3/25/2021), alleges that the city's selective enforcement of the deed restriction violates RLUIPA, the Texas Religious Freedom Restoration Act, and the federal Fair Housing Act. First Liberty Institute issued a press release announcing the filing of the lawsuit.

UPDATE: An April 20 announcement by First Liberty indicates that the case has been settled, with the City of Houston agreeing not to enforce deed restrictions against the synagogue and to dismiss citations it has already issued.

Christian Student Group Wins Suit Seeking To Limit Its Leadership To Believers

In Intervarsity Christian Fellowship/USA v. Board of Governors of Wayne State University, (ED MI, April 5, 2021), a Michigan federal district court held that Wayne State University violated the free exercise, free speech, association and assembly rights of a Christian student organization (IVCF) when the University suspended the group's status as a Recognized Student Organization.  The University took this action because IVCF violated the school's non-discrimination policy by insisting that its leaders agree with IVCF's  “Doctrine and Purpose Statements,” “exemplify Christ-like character, conduct and leadership,” and describe their Christian beliefs. In an 83-page opinion, the court said in part:

The First Amendment provides religious organizations the right to select their own ministers, and, under the First Amendment and §1983, organizations can sue the government for violating that right....

Plaintiffs also provide uncontradicted evidence that student leaders, called “Christian leaders,” qualify as ministers under the First Amendment....  In essence, Plaintiffs’ student leaders participate in proselytizing efforts and are Plaintiffs’ chosen spiritual resource for students at Wayne State....

No religious group can constitutionally be made an outsider, excluded from equal access to public or university life, simply because it insists on religious leaders who believe in its cause...

Defendants have barred Plaintiffs from selecting leaders that share its Christian views while allowing other groups to engage in similar form of leadership selection. This divergent treatment cannot withstand constitutional scrutiny....

The court awarded an injunction and nominal damages. Detroit News reports on the decision.

Supreme Court Denies Review In Cases Seeking To Overturn Hardison's Interpretation Of Title VII

The U.S. Supreme Court today denied review in two Title VII religious discrimination cases. (Order List). In both, petitioners were asking the Supreme Court to overturn its 1977 decision in Trans World Airlines v. Hardison which, interpreting the statutory term "undue hardship", allows an employer to refuse to accommodate an employee's religious requirements if doing so would impose  anything more than a de minimis cost. In Dalberiste v. GLE Associates, Inc. (Docket No. 19-1461, certiorari denied 4/5/2021), a Seventh Day Adventist sought a religious accommodation for his Sabbath observance. (SCOTUSblog case page.)  In Small v. Memphis Gas, Light & Water, (Docket No. 19-1388, certiorari denied      4/5/2021), a Jehovah's Witness employee sought scheduling accommodations that would allow him to attend church services. (SCOTUSblog case page). 

Justice Gorsuch, joined by Justice Alito, dissented from the denial of certiorari in the Small case, saying that the statutory interpretation involved there is out of step with subsequently adopted federal civil rights laws in other areas. Their opinion contends in part:

... Title VII’s right to religious exercise has become the odd man out. Alone among comparable statutorily protected civil rights, an employer may dispense with it nearly at whim. As this case illustrates, even subpar employees may wind up receiving more favorable treatment than highly performing employees who seek only to attend church.

Reuters reports on the Court's actions.

Churches' Challenge to Minnesota COVID Orders Moves Ahead

In Northland Baptist Church of St. Paul, Minnesota v. Walz, (D MN, March 30, 2021), a Minnesota federal district court refused to dismiss at the pleading stage complaints by two churches and a pastor that Minnesota's COVID-19 orders treat religious services less favorably than comparable secular activities. The decision also dealt extensively with several procedural and jurisdictional issues, as well as with other challenges by business plaintiffs.

Trump's Anti-Muslim Statements Did Not Taint Passport Revocations

In Abuhajeb v. Pompeo, (D MA, March 31, 2021), a Massachusetts federal district court dismissed Establishment Clause and Equal Protection challenges, among others, to the 2019 revocation of the U.S. passports of five siblings who were born in Jordan and whose father is a U.S. citizen. Claiming that the passports were initially issued erroneously, the revocations took place 14 years after the passports were initially issued.  According to the court:

The Siblings argue that President Trump’s statements during his 2016 campaign and administration, the series of executive orders barring immigrants from mostly Muslim-majority countries from entering the United States, and the State Department’s corresponding actions revoking their passports in August 2019 demonstrate that they were the targets of a new “deliberate revocation policy” based on their race and religion.

Rejecting this argument, the court said in part:

Even if the Siblings have alleged circumstantial evidence of President Trump’s discriminatory intent, they have not alleged how that intent motivated the State Department’s decision to revoke their passports. The 2017 Travel Ban and extreme vetting for immigrant visa applicants program allege discriminatory intent against Muslim and non-white immigrants, but not U.S. passport holders in the Siblings’ positions. The Department of Justice’s increase in denaturalization cases may implicate the Siblings, but the government has not moved to strip their citizenship in the past year since revoking their passports.

Recent Articles of Interest

 From SSRN:

• Iddo Porat, The Starting at Home Principle: On Ritual Animal Slaughter, Male Circumcision and Proportionality, (Oxford Journal of Legal Studies, 2020).
• Margaret Chavez, Employing Smith to Prevent a Constitutional Right to Discriminate Based on Faith: Why the Supreme Court Should Affirm the Third Circuit in Fulton v. City of Philadelphia, (American University Law Review, Vol. 70, No. 3, Feb. 2021).
• Shubhank Patel, Anuparna Chatterjee & Rishi Raj Mukherjee, The Sisyphean Dilemma: Analyzing the Transient Landscape of Essential Practice Doctrine vis-a-vis Santhara, (International Journal of Legal Developments and Allied Issues, Vol 6, Issue 6 (2020).
• C. Christine Fair & Parina Patel, Barriers to Covenantal Pluralism in Bangladeshi Public Opinion, (The Review of Faith & International Affairs (2020).
• Kevin D. Brown, Annapurna Deborah Waughray, Lalit Khandare & Kenneth Glenn Dau-Schmidt, Bostock v Clayton County Game Changer: US Federal Employment Law Now Covers Caste Discrimination Based on Untouchability, (Forthcoming, New York University Review of Law & Social Change, Vol. 46, 2022).
• James G. Hodge & Emily Carey, Charting the Legality of Religious-based Exemptions to COVID-19 Vaccinations, (Berkley Forum. 2021; (online February 16)).
• Netta Barak Corren, Noam Gidron & Yuval Feldman, Majority Nationalism Laws and the Equal Protection of Minorities: Experimental and Observational Evidence from Israel, (March 31, 2021).
• Md Tasnimul Hassan, Criminalization of Cattle Slaughter and Individual Rights under the Indian Constitution, (November 5, 2020).

Biden Issues Holocaust Remembrance Proclamation

Today President Biden issued a Proclamation (full text) designating April 4 through April 11 as Days of Remembrance of Victims of the Holocaust.  The Proclamation reads in part:

On Yom HaShoah — Holocaust Remembrance Day — we stand in solidarity with the Jewish people in America, Israel, and around the world to remember and reflect on the horrors of the Holocaust. An estimated six million Jews perished alongside millions of other innocent victims — Roma and Sinti, Slavs, disabled persons, LGBTQ+ individuals, and others — systematically murdered by the Nazis and their collaborators in one of the cruelest and most heinous campaigns in human history....

I remember learning about the horrors of the Holocaust from my father when I was growing up, and I have sought to impart that history to my own children and grandchildren in turn. I have taken them on separate visits to Dachau, so that they could see for themselves what happened there, and to impress on them the urgency to speak out whenever they witness anti-Semitism or any form of ethnic and religious hatred, racism, homophobia, or xenophobia. The legacy of the Holocaust must always remind us that silence in the face of such bigotry is complicity — remembering, as Rabbi Abraham Joshua Heschel wrote, that there are moments when “indifference to evil is worse than evil itself.”

Survey On Anti-Semitism In U.S. Released

The Anti-Defamation League this week released its 2021 Survey on Jewish Americans’ Experiences with Antisemitism. It found:

Well over half (63 percent) of Jews in America have either experienced or witnessed some form of antisemitism in the last five years.

USCIRF Focuses On Financial Regulation of Religious Organizations

Earlier this week, the U.S. Commission on International Religious Freedom issued a Fact Sheet titled Controlling Civil Society's Pursestrings. The Fact Sheet focuses on the impact of financial regulation on religious organizations and religious freedom. It concludes:  

Around the globe, governments rely on excessive financial restrictions to hamper civil society actors.... Efforts to restrict foreign funding, or label civil society organizations as “foreign agents,” often reflect broader xenophobic policies under which religious minorities are targeted as dangerous foreign influences or potential fifth columns.

Financial harassment can take many forms, from attempts to delegitimize the work of foreign-funded civil society by enacting requirements to register as “foreign agents,” to imposing excessive and intrusive reporting requirements, as well as exorbitant fees and fines for religious activity, to seizing assets or religious property.... [T]he ability to solicit and receive financial contributions is an integral component of the freedom of religion or belief....

Biden Declaration of March 31 As "Transgender Day of Visibility"

Earlier this week, President Biden signed a Presidential Proclamation (full text) declaring March 31 as "Transgender Day of Visibility". The Proclamation reads in part:

Transgender Day of Visibility recognizes the generations of struggle, activism, and courage that have brought our country closer to full equality for transgender and gender non-binary people in the United States and around the world.  Their trailblazing work has given countless transgender individuals the bravery to live openly and authentically.  This hard-fought progress is also shaping an increasingly accepting world in which peers at school, teammates and coaches on the playing field, colleagues at work, and allies in every corner of society are standing in support and solidarity with the transgender community.

Synagogues Lose Suit Over Repealed Zoning Law

In Orthodox Jewish Coalition of Chestnut Ridge v. Village of Chestnut Ridge, New York, (SD NY, March 31, 2021), a New York federal district court dismissed a suit by Orthodox Jewish synagogues contending that the village's former zoning law violated RLUIPA, the free exercise clause and the New York constitution. The court held RLUIPA's safe harbor provision protects municipalities that correct their laws from damage suits under RLUIPA. It also dismissed plaintiffs' equal protection claim because they failed to show that the old zoning law was enacted with discriminatory intent. The court found that claims for prospective relief were moot and that certain other claims were not ripe.