New Jersey Sues Township Alleging Anti-Jewish Zoning Actions

New Jersey's Attorney General yesterday announced that the state has filed a lawsuit against Jackson Township (NJ) alleging that in response to residents who have complained about the number of Orthodox Jews moving in, the Township has adopted discriminatory zoning ordinances and enforcement practices. The complaint (full text) in Grewal v. Jackson Township, (NJ Super. Ct., filed 4/27/2021) alleges that New Jersey's Law Against Discrimination has been violated and reads in part:

Defendants have exercised their zoning authority to intentionally target Orthodox Jewish religious practices and rituals, such as communal prayer, the erection of sukkahs, and the establishment of yeshivas and eruvim. They have exercised their zoning authority to enact ordinances for the purpose of deterring Orthodox Jews from building and operating religious schools, as well as the dormitories associated with those schools within the Township. And they have exercised their authority by discriminatorily investigating alleged violations of Township ordinances by Orthodox Jews, while acknowledging that resident complaints have been “exaggerated” and that significant resources have been wasted on enforcement without the discovery of any significant ordinance violations.

Insider NJ reports on the lawsuit.

Students Sue Yeshiva University For Refusal To Recognize LGBTQ Organizations

Suit was filed this week in a New York state trial court against Yeshiva University by an LGBTQ student organization and four current and former students claiming that the university's continued refusal to recognize a student organization for LGBTQ students violates New York City's Human Rights Law. The complaint (full text) in YU Pride Alliance v. Yeshiva University, (NYCty. Sup. Ct., filed 4/26/2021) alleges in part:

[D]isparate treatment and the denial of these concomitant benefits to club recognition, solely based on Plaintiffs’ sex, sexual orientation, or gender identity, is not only harmful to the students, but also unlawful as it amounts to a failure to provide equal access to facilities in violation of New York City laws.

Washington Post, reporting on the lawsuit, sets out a portion of the university's response to the lawsuit:

Our LGBTQ+ students are our sons and daughters, brothers and sisters, family and friends. Our policies on harassment and discrimination against students on the basis of protected classifications including LGBTQ+ are strong and vigorously enforced. Our Torah-guided decision about this club in no way minimizes the care and sensitivity that we have for each of our students, nor the numerous steps the university has already taken.

Cert. Petition Filed In Challenge To New York's Abortion Coverage Requirement

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in Roman Catholic Diocese of Albany v. Lacewell, (cert. filed 4/22/2021). In the case, a New York state appellate court rejected a challenge by several religious organizations and other plaintiffs to a New York administrative regulation  requiring health insurance policies in New York to provide coverage for medically necessary abortion services. (See prior posting.) According to the petition for review, the New York regulation "exempts religious entities whose 'purpose' is to inculcate religious values and who 'employ' and 'serve' primarily coreligionists. But religious organizations must cover abortions if they have a broader religious mission (such as service to the poor)or if they employ or serve people regardless of their faith." New York's highest state court denied leave to appeal. Becket Fund issued a press release announcing the filing of the petition for review.

Montana Enacts A Religious Freedom Restoration Act

On April 22, Montana Governor Greg Gianforte signed SB215, the Montana Religious Freedom Restoration Act (full text). It provides in part:

State action may not substantially burden a person's right to the exercise of religion, even if the burden results from a rule of general applicability, unless it is demonstrated that applying the burden to that person's exercise of religion: (a) is essential to further a compelling governmental interest; and (b) is the least restrictive means of furthering that compelling governmental interest.

Christianity Today reports on the new law.

Supreme Court Refuses Original Suit By Texas Against California

Yesterday, the U.S. Supreme Court in Texas v. California, (Sup. Ct., April 26, 2021), (SCOTUSblog case page) denied the state of Texas leave to invoke the Supreme Court's original jurisdiction to file a bill of complaint against the state of California. USA Today described the background:

California passed a law in 2016 prohibiting taxpayer-funded travel – such as for state employees to attend conferences – to any state that doesn’t ban discrimination on the basis of sexual orientation. Texas law allows foster-care and adoption agencies to deny same-sex couples on religious grounds.

Texas took California directly to the Supreme Court last year, asserting the travel ban was "born of religious animus" and that it violates the Constitution....

The justices had been considering whether to take the suit for months. The court did not explain its decision not to hear the case.

Justice Alito, joined by Justice Thomas, dissented, saying in part:

The practice of refusing to permit the filing of a complaint in cases that fall within our original jurisdiction is questionable, and that is especially true when, as in this case, our original jurisdictional is exclusive. As the history recounted above reveals, the Court adopted this practice without ever providing a convincing justification....

Texas raises novel constitutional claims, arguing that California’s travel ban violates the Privileges and Immunities Clause, U. S. Const., Art. IV, §2, cl. 1, the Commerce Clause, Art. I, §8, cl. 3, and the Equal Protection Clause, Amdt. 14, §1. I express no view regarding any of those claims, but I respectfully dissent from the Court’s refusal even to permit the filing of Texas’s complaint.

Certiorari Denied In Suit Over California Curriculum On Hinduism

The U.S. Supreme Court today denied review in California Parents for the Equalization of Educational Materials v. Torlakson, (Docket No. 20-1137, certiorari denied 4/26/2021). (Order List). In the case, the U.S. 9th Circuit Court of Appeals upheld the dismissal of a suit claiming that California's History-Social Science Standards and Framework incorrectly describe Hinduism and treat it negatively in relation to the treatment of other religions.

Supreme Court GVR's Challenge To California Limits On Indoor Worship

In February, the U.S. Supreme Court in South Bay United Pentecostal Church v. Newsom, (US Sup. Ct., Feb. 5, 2021), enjoined while a petition for certiorari is pending a portion of California's restrictions on indoor worship services. (See prior posting.) Today in the case (Docket No. 20-746, April 26, 2021) the Supreme Court granted certiorari, summarily vacated the 9th Circuit's judgment upholding the restrictions, and remanded for further consideration in light of Tandon v. Newsom. (Order List).

Supreme Court Hears Oral Arguments Today In Challenge To California's Required Disclosure of Donors To Non-Profits

The U.S. Supreme Court this morning will hear consolidated oral arguments in Thomas More Law Center v. Rodriquez (SCOTUSblog case page) and Americans for Prosperity Foundation v. Rodriquez (SCOTUSblog case page). 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. Petitioners argue that disclosure subjects donors to dangers of hate mail and retaliation.  Thomas More Law Center describes its mission, in part, as preserving America’s Judeo-Christian heritage and defending the religious freedom of Christians. This post will be updated with a link to the transcript of the oral arguments when it becomes available later today.

Here are links to the audio and transcript of the full arguments.

Virginia GOP Rejects Rule Change To Allow Absentee Voting For Religious Reasons In Upcoming Saturday Convention

Washington Post reports that in a vote last Thursday, Virginia's Republican State Central Committee refused to amend its rules to allow observant Jews and others with religious objections to vote absentee in the upcoming Saturday, May 8, nominating convention for governor and two other statewide offices.  While a narrow majority favored the change, rules required a 75% vote to change party rules. Those who opposed the change said that the issue was raised too close to the election date. The request was made in a letter from four rabbis earlier this month. The absentee option is already available for active-duty military. [Thanks to Scott Mange for the lead.]

Cutoff of Pastor's City Council Invocation Did Not Violate 1st Amendment

In Gundy v. City of Jacksonville, Florida, 2021 U.S. Dist. LEXIS 78850 (MD FL, March 22, 2021)-- decided last month but just available on Lexis-- a Florida federal district court dismissed a suit by a pastor who contended that City Council president Aaron Bowman improperly shut off plaintiff's microphone in the middle of the invocation that he was offering. Finding that plaintiff's 1st Amendment rights were not violated, the court said in part:

First, the Court finds Mr. Bowman's actions were not viewpoint discrimination. Mr. Bowman's comment when interrupting Plaintiff and the subsequent removal of Plaintiff's amplification were for the stated purpose of preserving the invocation for its intended purpose. That purpose, according to the City, was to maintain "a tradition of solemnizing its proceedings . . . for the benefit and blessing of the Council." ...

During his invocation, Plaintiff's remarks were at times objectively disparaging of the City Council and the incumbent administration.... While the remarks might have been entirely appropriate if delivered in a more public forum or even Plaintiff's pulpit, they were subject to the reasonable and viewpoint-neutral limitations set by the City for the invocation period — a nonpublic forum.

Plaintiff has filed an appeal. Florida Politics has additional background on the case.

Recent Articles of Interest

From SSRN:

• Elizabeth Sepper & James David Nelson, The Religious Conversion of Corporate Social Responsibility, (Emory Law Journal, Vol. 71, No. 2, 2021).
• Lee Epstein & Eric A. Posner, The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait, (Supreme Court Review, 2021).
• Zachary B. Pohlman, Fulton and Government-Mandated Vaccinations,(Canopy Forum, 2021).
• Richard Luedeman, Voting as a Genuinely Religious Act in a World of Free Exercise Maximalism, (UC Davis Law Review Online (Forthcoming 2021)).
• Craig Westergard, LGBT Discrimination as Religious Discrimination: Ruse or Resolution?, (26 Barry Law Review 45 (2020)).
• Omar Farahat, Peace to those of Faith: Political Affiliation and Belonging in Classical Islamic Thought, (Routledge Handbook of Citizenship in the Middle East and North Africa 2021).
• Malcolm Katrak & Shardool Kulkarni, Unravelling the Indian Conception of Secularism: Tremors of the Pandemic and Beyond,  (Secularism and Nonreligion, 2021).
• Mesenbet Assefa Tadeg, The Dangers of Hate Propaganda: Why Ethiopia Needs Democratic Militancy, (October 18, 2020).
• Omar Farahat, Moral Value and Commercial Gain: Three Classical Islamic Approaches, (Journal of Arabic and Islamic Studies, Forthcoming).

From SmartCILP:

• Allan W. Vestal, Faithfully Enforcing the Religious Liberty Guarantees of the Northwest Territory States, 34 Brigham Young University Journal of Public Law 403-440 (2020).
• Kathleen Ritter, We Are Not Struck with Blindness: The Establishment Clause and Religiously Motivated State Preemption of Municipal Non-Discrimination Law, 39 Columbia Journal of Gender & Law 205-250 (2020)).

Texas Will Now Allow Spiritual Advisor In Execution Chamber With Prisoner

 AP and Texas Tribune report that Texas prisons will now allow any inmate being executed to have his personal religious adviser with him in the execution chamber so long as the adviser is verified and passes a background check. This change in policy follows the U.S. Supreme Court's questioning of earlier Texas policies which first limited inmates to having the prison's Christian chaplain and then excluded all spiritual advisors. (See prior posting.) The policy change was signed on Wednesday by director of the Correctional Institutions Division of the Texas Department of Criminal Justice. [Thanks to Scott Mange for the lead.]

Biden Labels 1915 Armenian Massacre As "Genocide"

For the first time yesterday, a sitting U.S. President labelled the 1915 massacre of Armenians as "genocide". In a Statement (full text), President Biden said in part:

Each year on this day, we remember the lives of all those who died in the Ottoman-era Armenian genocide and recommit ourselves to preventing such an atrocity from ever again occurring. Beginning on April 24, 1915, with the arrest of Armenian intellectuals and community leaders in Constantinople by Ottoman authorities, one and a half million Armenians were deported, massacred, or marched to their deaths in a campaign of extermination. We honor the victims of the Meds Yeghern so that the horrors of what happened are never lost to history. And we remember so that we remain ever-vigilant against the corrosive influence of hate in all its forms....

The American people honor all those Armenians who perished in the genocide that began 106 years ago today.

NPR reports on the President's statement.

Britain's House of Commons Says China Is Guilty of Genocide

Britain's House of Commons yesterday adopted a resolution (full text of debate and resolution) declaring that China has committed genocide in its treatment of the Uyghurs. the Resolution reads:

That this House believes that Uyghurs and other ethnic and religious minorities in the Xinjiang Uyghur Autonomous Region are suffering crimes against humanity and genocide; and calls on the Government to act to fulfil its obligations under the Convention on the Prevention and Punishment of Genocide and all relevant instruments of international law to bring it to an end.

Reuters reports on Parliament's action.

Algerian Journalist Sentenced To Prison For Facebook Posts Offensive To Islam

Amnesty International reported yesterday that a court in Algeria on April 1 sentenced a journalist Said Djabelkheir, a specialist on Sufism, to three years in prison and a fine of 50,000 dinars ($375 US) for Facebook posts he authored:

In three online posts on Facebook in January 2020, Said Djabelkheir drew comparisons between Eid al-Adha and the Berber New Year celebrations; referred to some stories in the Qur’an as ‘myths; and said he considered some hadiths ‘apocryphal’.  The Sidi Mhamed Court of First Instance today convicted him of “offending the Prophet of Islam” and “denigrating the dogma or precepts of Islam" under Article 144bis[2] of Algeria’s Penal Code.

No order to take Djabelkheir into custody has yet been issued. Djabelkheir's lawyer plan to appeal his conviction.

Vermont State School Board Orders Payment Of Tuition To Religiously Affiliated Schools

In In re Appeal of Valente, (VT State Bd. Educ., April 21, 2021), the Vermont State Board of Education, in appeals by three families, ordered local school boards in districts without public high schools to pay students' tuition to religiously affiliated high schools. Vermont law requires school districts that do not have public high schools to pay tuition for students to attend another public or private school. The Vermont Supreme Court in Chittenden Town School Dist. v. Dept. of Educ.,(1999) limited the ability of districts to pay tuition to religious schools, while the U.S. Supreme Court has held that the 1st Amendment bars exclusion of religiously affiliated schools from general aid programs. The Board of Education said in part:

The type of use restriction and certification discussed in Mitchell may provide a reasonable option going forward for harmonizing the state and federal constitutional requirements. School districts ... could ask all ... schools to certify that public tuition payments will not be used to fund religious instruction or religious worship. Such an approach would place all independent schools on an equal footing; regardless of perceived or actual religious affiliation, all independent schools would be asked to provide the same assurance regarding the use of public tuition payments. No school would be excluded based solely on its religious affiliation. And no school would be required to “refrain from teaching religion.” ... Schools themselves would be left to decide whether to accept public tuition payments that could not be used to fund religious worship or religious instruction. 

The Board offers these observations with the caveat that this is not a rulemaking proceeding and it cannot, in this context, provide any binding direction to school districts. Further, as explained above, constitutional questions remain unsettled. As litigation moves through the courts, the permissible legal parameters may become clearer. Ultimately the courts will have to resolve whether the use restriction that Chittenden requires can co-exist with First Amendment requirements.

VTDigger reports on the decision.

USCIRF Issues Annual Report On International Religious Freedom

The U.S. Commission on International Religious Freedom yesterday announced the release of its 2021 Annual Report (full text).  The 108-page Report focuses on religious freedom violations in 26 countries. Summarizing it findings, the Report said in part:

For 2021, based on religious freedom conditions in 2020, USCIRF recommends that the State Department:

• Redesignate as CPCs [Countries of Particular Concern] the following ten countries: Burma, China, Eritrea, Iran, Nigeria, North Korea, Pakistan, Saudi Arabia, Tajikistan, and Turkmenistan;

• Designate as additional CPCs the following four countries: India, Russia, Syria, and Vietnam; 

• Maintain on the SWL [Special Watch List] the following two countries: Cuba and Nicaragua;

• Include on the SWL the following 10 countries: Afghanistan, Algeria, Azerbaijan, Egypt, Indonesia, Iraq, Kazakhstan, Malaysia, Turkey, and Uzbekistan; and

• Redesignate as EPCs [Entities of Particular Concern] the following seven nonstate actors: al-Shabaab, Boko Haram, the Houthis, Hay’at Tahrir al-Sham (HTS), Islamic State in the Greater Sahara (ISGS), Jamaat Nasr al-Islam wal Muslimin (JNIM), and the Taliban.

The Report also makes numerous policy recommendations to the U.S. government, including the prompt nomination of the ambassador-at-large for International Religious Freedom (IRF), special adviser for IRF on the National Security Council staff, special coordinator for Tibetan issues, and special envoy to monitor and combat antisemitism. It also recommends changes in U.S. handling of refugees and asylum seekers.

5th Circuit Remands Religious Medical Providers' Challenge To Anti-Discrimination Rules

In Franciscan Alliance, Inc. v. Becerra, (5th Cir., April 15, 2021), the U.S. 5th Circuit Court of Appeals remanded to a Texas federal district court a challenge by religious medical providers to a 2016 Health and Human Services rule that prohibited discrimination on the basis of "termination of pregnancy" and "gender identity." The appeals court noted that since the district court decision, "the legal landscape has shifted significantly." It pointed out: 

HHS repealed the 2016 rule and finalized a new rule in 2020; the Supreme Court interpreted Title VII’s prohibition of “sex discrimination” to include gender identity...; two district courts entered preliminary injunctions against the 2020 rule....; President Biden issued an executive order declaring that his administration would apply Bostock’s interpretation of Title VII to other statutes prohibiting sex discrimination; and HHS is again considering a new rule....

The court said that on remand the district court should consider they type of relief that should be granted and whether the case is moot.

Canadian Trial Court Upholds Most Applications of Quebec's Ban On Officials Wearing Religious Symbols

In Hak v. Attorney General of Quebec, (Que. Super. Ct., April 20, 2021), a Quebec (Canada) Superior Court judge in a 240-page opinion upheld, with two important exceptions, Bill 21 which prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. (See prior posting.) Here is CBC News' summary of the decision:

Quebec's secularism law violates the basic rights of religious minorities in the province, but those violations are permissible because of the Constitution's notwithstanding clause, a Superior Court judge ruled on Tuesday.

But the ruling by Justice Marc-André Blanchard also declared that the most contentious parts of the law — the religious symbols ban for many government employees — can't be applied to English schools.

The desire of English school boards to foster diversity by choosing who they hire is protected by the minority-language education rights in the Charter of Rights and Freedoms, Blanchard said in his decision.

Crucially, that section of the charter (23) is not covered by the notwithstanding clause....

Blanchard also ruled that members of the province's National Assembly can't be forced to provide services to the public with their faces uncovered.

In other words, MNAs are allowed to wear religious symbols that cover their faces, such as a niqab, in accordance with the section of the charter that guarantees every citizen the right to be eligible to vote and be a member of the legislature.

Quebec's Justice Minister says that an appeal is planned. Montreal Gazette and the New York Times also analyze the decision.

New Indictment Against Lev Tahor Over Kidnapping Of Minor

The U.S. Attorney's Office for the Southern District of New York yesterday announced the issuance of a superseding indictment (full text) bringing additional charges against leaders and members of the extremist Jewish sect Lev Tahor.  The new indictment in United States v. Helbrans, (SDNY, April 20, 2021) charges defendants with conspiring to transport a minor with intent to engage in criminal sexual activity and travel with intent to engage in illicit sexual conduct. It also repeats former charges of use of false documents and international parental kidnapping of a girl and her brother. The 250-member Lev Tahor sect is currently based in Guatemala.  The indictment stems from initially successful attempts to kidnap and return to Guatemala a 14-year old girl whose uncle had her married in a religious ceremony to a 19-year old member of the sect for purposes of a sexual relationship to procreate. The girl's mother had fled from Guatemala to New York with the girl and her brother. [Thanks to Scott Mange for the lead.]