Suit Claims Mask Mandates Violate Free Exercise Rights and Establishment Clause

In a wide-ranging 128-page complaint, a woman who alleges that her medical conditions make it dangerous for her to wear a face mask filed suit in an Indiana federal district court earlier this month against 16 separate defendants challenging the legality of COVID- related mandates or recommendations to wear cloth face masks. Defendants include the CDC, the FDA, Dr. Anthony Fauci, the governor of Indiana, state and local health departments, local officials and several private businesses. Among the numerous challenges, the complaint (full text) in Reinoehl v. Centers for Disease Control and Prevention, (ND IN, filed 8/18/2021), includes these state and federal free exercise and federal Establishment Clause claims:

418. Non-medical masks have been used since ancient times in pagan religious ceremonies to ward of evil spirits and prevent illness....

421. Wearing talismans and other pagan, non-medical masks is against Plaintiff's religious beliefs.

422. Mandating everyone wear non-medical masks to prevent disease when the mask manufacturers cannot make claims they prevent disease transmission is the same as the State establishing a religion in which the Mask Deity prevents its wearers from becoming infected with disease.

423. The State cannot mandate the Plaintiff follows its religion. Plaintiff has the right to freely exercise her religion according to the dictates of her own conscience.

Friendly Atheist blog has more on the lawsuit.

Meanwhile, elsewhere in the country novel religious freedom arguments are being asserted to avoid mask mandates.  According to Fox47 News, a Mason, Michigan mother is seeking a religious exemption from a school mask requirement for her children based on a verse from 2 Corinthians, Chap. 3: "But when one turns to the Lord, the veil is removed..."

TRO Requires University Soccer Team To Grant Religious Exemptions From Vaccine Mandate

In Dahl v. Board of Trustees of Western Michigan University, (WD MI, (Aug. 31, 2021), a Michigan federal district court issued a temporary restraining order requiring the University to grant religious exemptions from its COVID vaccine requirement to four members of the women's soccer team. The university had previously denied the students' exemption requests. The 14-day TRO was issued on the basis of an ex parte motion.  The court said in part:

On the record before this Court, and understanding that WMU has not been afforded an opportunity to response, WMU’s vaccination requirement for student athletes is not justified by a compelling interest and is not narrowly tailored.... WMU has asserted that it has a compelling reason, albeit in a perfunctory manner. WMU appears to conclude that unvaccinated players pose a risk to the health of the vaccinated players.

Great Lakes Justice Center issued a press release announcing the decision, and providing links to pleadings in the case.

Washington Conversion Therapy Ban Upheld

In Tingley v. Ferguson, (WD WA, Aug. 30, 2021), a Washington federal district court dismissed First Amendment challenges by a family therapist to a Washington state statute that prohibits licensed counselors in treating minors from engaging in "conversion therapy" aimed at changing sexual orientation or gender identity. The court held that performing conversion therapy is "conduct", not speech. According to the court, the law still allows therapists to discuss the option of conversion therapy by someone else-- including someone within the exception for practitioners operating under the auspices of religious organizations. The court also rejected plaintiff's religious free exercise argument, saying in part:

[T]he object of the Conversion Law is not to infringe upon or restrict practices because of their religious motivation.... Plaintiff is free to express and exercise his religious beliefs; he is merely prohibited from engaging in a specific type of conduct while acting as a counselor.

Former Trump White House Staffers Forming New Faith-Based Initiative

Forward reports that on Thursday two former Trump-Administration White House staffers will launch the National Faith Advisory Board, a faith-based outreach initiative. Jenny Korn and Amanda Robbins Vargo, who worked in the Trump White House Office of Public Liaison, are co-founders of the new organization which is modeled on Trump's Faith and Opportunity Initiative.

Supreme Court Asked To Prevent Texas Heartbeat Abortion Ban From Taking Effect Sept. 1

Yesterday several abortion providers filed an Emergency Application (full text of Application in Whole Woman's Health v. Jackson, (US Sup. Ct., filed 8/30/2021)) with the U.S. Supreme Court seeking to prevent Texas S.B. 8 from going into effect on Sept. 1. The Texas law bans performing or inducing an abortion if the physician has detected a fetal heartbeat. This often occurs at 6 weeks of pregnancy. The law also allows any private person to bring a civil action against a physician who has violated the statute, and against anyone who knowingly aids or abets the abortion. SCOTUSblog has more on the case.

FBI Releases Hate Crime Statistics For 2020

Yesterday the FBI released its report on Hate Crime Statistics 2020. According to the FBI:

There were 7,554 single-bias incidents involving 10,528 victims. A percent distribution of victims by bias type shows that 61.9% of victims were targeted because of the offenders’ race/ethnicity/ancestry bias, 20.5% were victimized because of the offenders’ sexual-orientation bias, 13.4% were targeted because of the offenders’ religious bias, 2.5% were targeted because of the offenders’ gender identity bias, 1% were victimized because of the offenders’ disability bias, and 0.7% were victimized because of the offenders’ gender bias.

There were 205 multiple-bias hate crime incidents that involved 333 victims.

In a statement, Attorney General Merrick Garland said in part:

Last year saw a 6.1% increase in hate crime reports, and in particular, hate crimes motivated by race, ethnicity and ancestry, and by gender identity. These numbers confirm what we have already seen and heard from communities, advocates and law enforcement agencies around the country. And these numbers do not account for the many hate crimes that go unreported.

CNBC reports on the data.

20 State AG's Sue Feds Over LGBTQ Anti-Discrimination Interpretations

A 20-state coalition led by Tennessee Attorney General Herbert Slattery filed suit in a Tennessee federal district court challenging interpretations of anti-discrimination laws by the Department of Education and the EEOC. In response to an Executive Order issued by President Biden, these two agencies issued interpretations protecting against discrimination on the basis of sexual orientation or gender identity. The complaint (full text) in State of  Tennessee v. U.S. Department of Education, (ED TN, filed 8/30/2021), contends in part:

[T]he Department of Education ... and Equal Employment Opportunity Commission ..., each flouting procedural requirements in their rush to overreach, issued “interpretations” of federal antidiscrimination law far beyond what the statutory text, regulatory requirements, judicial precedent, and the Constitution permit.

The relief requested by plaintiffs particularly focuses on concerns over transgender rights under Title VII and Title IX. 

Tennessee's Attorney General issued a press release announcing the filing of the lawsuit. 

Virginia Supreme Court Sides With Teacher Who Spoke Against School's Transgender Policy

In Louden County School Board v. Cross, (VA Sup. Ct., Aug. 30, 2021), the Virginia Supreme Court upheld a preliminary injunction issued by a trial court in a suit by a teacher who had been suspended because of his remarks at a school board meeting. Tanner Cross, an elementary school physical education teacher, at a school board meeting spoke in opposition to a proposed policy on transgender students which, among other things, required school staff to use a student's chosen name and gender pronouns. Cross told the board, in part:

I’m a teacher but I serve God first. And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion. It’s lying to a child. It’s abuse to a child. And it’s sinning against our God.

The Supreme Court said in part:

The only disruption the Defendants can point to is that a tiny minority of parents requested that Cross not interact with their children. However, the Defendants identify no case in which such a nominal actual or expected disturbance justified restricting speech as constitutionally valued as Cross’ nor have they attempted to explain why immediate suspension and restricted access to further Board meetings was the proportional or rational response to addressing the concerns of so few parents.

ADF issued a press release announcing the decision.

Texas Governor's Order Invalid; Catholic Charities Can Continue Work With Migrants

In United States v. State of Texas, (WD TX, Aug. 26, 2021), a Texas federal district court held unconstitutional on Supremacy Clause grounds Texas Governor Greg Abbott's Executive Order which prohibits, during the COVID pandemic, anyone except federal, state or local law enforcement officials from providing transportation to migrants who have been detained for crossing the border illegally or are subject to expulsion. The Order directs the Texas Department of Public Safety (DPS) to stop any vehicle suspected to be in violation of this Order and send it back to its point of origin if a violation is confirmed. The court concluded that enforcement of the Order would require state officials to decide whether a person has been detained for crossing the border illegally. It went on:

Because the Order authorizes DPS agents to make and act on immigration determinations, the province of federal law, it is facially invalid.

According to The Tablet, this decision allows Catholic Charities of the Rio Grande Valley and other organizations to continue their work with migrants.

UN Human Rights Official Calls For Taliban To Allow Equal Education For Women and End Child Marriage

Last week (Aug. 24), Reem Alsalem, the United Nations Special Rapporteur on violence against women, its causes and consequences, issued a lengthy statement (full text) in response to an Aug. 17 news conference by Taliban leaders in Afghanistan.  The Taliban stated that women could work and girls could go to school "as long as such activities are in accordance with Sharia law." Alsalem said in part:

According to the Quran, no one has the right to impose religion, including religious law, on anyone else (verse 2:256).  This egalitarian approach to religious authority has found expression in the rich plurality and diversity of religious understanding and schools of jurisprudence (madhahib) which we have until today. Notably, women, like men also have an equal right and responsibility to interpret Sharia. It would be important that this rich diverse heritage would be allowed to continue all over the Muslim World, including in Afghanistan....

The  principles of justice and equality between the sexes mean that women and girls are entitled to seeking and accessing education on an equal footing as men. The first verses of the Quran that were revealed to the Prophet commanded all human beings, both man and woman to "learn" (Iqra') (verses 96:1-5) and to seek knowledge (verses 16:78; 17:85, and 20:114)....

As reports have been recently resurfaced of increased forced marriages, including child marriages, it is important to underline that for a Muslim marriage contract to be valid it needs to fulfill several requirements – key being that both individuals give their free consent....

Islamic jurisprudence on this is clear: All marriages must be carried out by mature individuals who have the mental, legal, intellectual, and physical capacity to give consent. This requirement means that child marriages are by definition null and void. In essence, a forced marriage is equivalent to rape, which is an abhorrent crime that is strictly forbidden in Islamic law and considered as hiraba (unlawful societal warfare), and for which the prescribed punishments are severe.

Another Challenge To Ban On Transgender Discrimination In Health Care

Last week, the American College of Pediatricians, the Catholic Medical Association and an individual physician filed suit in a Tennessee federal district court challenging as a violation of the Religious Freedom Restoration Act, as well as of free speech and freedom of association protections, rules and interpretations of the Affordable Care Act that prohibit discrimination by medical providers on the basis of gender identity. The Obama Administration originally adopted the prohibition; the Trump Administration reversed the prohibition; and the Biden Administration returned to the discrimination ban.  In the meantime, challenges proceeded through the courts. Now, the complaint (full text) in American College of Pediatricians v. Becerra, (ED TN, filed 8/26/2021), alleges in part:

Two courts have already recognized that this mandate is illegal and enjoined it in favor of plaintiffs in those cases. Franciscan Alliance, Inc. v. Becerra...; Religious Sisters of Mercy v. Azar.... But both injunctions protect only the plaintiffs in those cases, not the plaintiffs or their members here.

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

Recent Articles of Interest

From SSRN:

• Marc Spindelman, Justice Gorsuch's Choice: From Bostock v. Clayton County to Dobbs v. Jackson Women's Health Organization, (13 ConLawNOW 11 (2021).
• Sherif Girgis, Defining "Substantial Burdens" on Religion and Other Liberties, (August 26, 2021).
• Veena Roshan Jose, Bracketing Liberty for the Public Health Cause,  (Lexgentia Law Journal of Llyod Law College 2020).
• Gregory S. Gordon, On the Early Release of the “Rwandan Goebbels”: American Free Speech Exceptionalism and the Ghost of the Nuremberg-Tokyo Commutations, (in Morten Bergsmo, Mark Klamberg, Kjersti Lohne and Christopher B. Mahony (eds.), Power in International Criminal Justice, Torkel Opsahl Academic EPublisher, Brussels, 2020).
• Kim D. Ricardo, Was Justice Ginsburg Roe-ght?: Reimagining U.S. Abortion Discourse in the Wake of Argentina’s Marea Verde, (August 15, 2021).
• Maria Marais, A Duty Perspective on the Hate Speech Prohibition in the Equality Act, (PER / PELJ 2021(24)).
• John Rice, The Road to Bostock, (FIU Law Review,  2021).

From SmartCILP:

• Brett Geier & Ann E. Blankenship-Knox, When Speech Is Your Stock in Trade: What Kennedy v. Bremerton School District Reveals about the Future of Employee Speech and Religion Jurisprudence, 42 Campbell Law Review 31-80 (2020).

Denial Of Religious Exemption From Vaccine Mandate OK'd

In Harris v. University of Massachusetts, (D MA, Aug. 27, 2021), a Massachusetts federal district court rejected student Cora Cluett's objections to the manner in which her request for a religious exemption from the school's COVID-19 vaccine requirement was handled. According to the court:

[Student Affairs Vice Chancellor DeVeau] denied her appeal, since he determined from the substance of her request that she was Roman Catholic and concluded from his research that the COVID-19 vaccine would not violate tenets of that faith.... In interpreting Cluett’s faith to be Roman Catholic, De Veau stated “[i]f this is incorrect, please let me know.”... De Veau then cited a statement from the United States Conference of Catholic Bishops that receiving the COVID-19 vaccines was “morally justified.”

The court held first that insofar as plaintiff was asserting state law claims against state officials, these are barred by the 11th Amendment because Ex parte Young only creates an exception for federal constitutional claims. As to Cluett's 1st Amendment Free Exercise claims, the court said in part:

... UMass is under no constitutional obligation to offer a religious exemption to its Vaccine Requirement. See Nikolao v. Lyon, 875 F.3d 310, 316 (6th Cir. 2017) ....  Certainly, once the university offers religious exemptions, it must not administer them in an unconstitutional way.... Here, however, Cluett has not alleged anything to suggest that Defendants have administered their religious exemption policy in a way that burdens some religions but not others, ... or that Defendants have coerced her in her religious practices....

Bishop's Suit for Indemnification Dismissed On Ecclesiastical Abstention Doctrine

In Kawimbe v. The African Methodist Episcopal Church, Inc., (ND GA, Aug. 27, 2028), a Georgia federal district court dismissed a suit by the Bishop of a church district covering part of South Africa.  The bishop's suit sought indemnification from the Church (a Pennsylvania non-profit corporation) for his successful defense before a church tribunal of charges bought against him by a minister in South Africa. The court held that the suit is not precluded by the ministerial exception doctrine because "the Church’s decision to deny Kawimbe indemnification does not implicate its right to select its ministers." The court concluded however that the suit should be dismissed under the ecclesiastical abstention doctrine, saying in part:

Under Pennsylvania law, if a representative of a non-profit corporation succeeds on the merits in an action or proceeding brought against him “by reason of” his representative status, the non-profit corporation must indemnify him...

To determine whether Kawimbe is or was a representative of the Church, the Court would be required to scrutinize “the composition of [the Church and AMEC’s] hierarchy,” including the nature of Kawimbe’s role as a bishop, which are matters of “core ecclesiastical concern.”...

[T]o determine whether the internal proceeding was brought “by reason of” Kawimbe’s role as a representative of the Church, the Court would have to consider the responsibilities and powers given to Kawimbe in his role as bishop and whether the accusations against him involved those responsibilities and powers. This inquiry would necessarily entangle the Court in matters of church governance. 

Ban On Cockfighting Does Not Violate Pastor's Free Exercise Rights

 In Plumbar v. Landry, (MD LA, Aug. 26, 2021), a Louisiana federal district court rejected a free exercise challenge to Louisiana's ban on cockfighting. Plaintiff who challenged the law was pastor of Holy Fight Ministries, a church that believes cockfighting is an essential part of its faith.  The court held that the ban is a neutral, generally applicable statute whose purpose is to prevent animal cruelty.

2nd Circuit Upholds Denial Of Preliminary Injunction Against Abortion Protesters

In New York ex rel. James v. Griepp, (2d Cir., Aug. 26, 2021), the U.S. 2nd Circuit Court of Appeals affirmed a New York federal district court's refusal to grant a preliminary injunction against anti-abortion protesters who had been clashing with volunteer clinic escorts outside a Queens medical center. The decision came after the court earlier vacated its prior opinion in the case. (See prior posting.) The 2nd Circuit now said in part:

[T]he district court concluded that the Attorney General had not demonstrated irreparable harm. Some members of this Court might have reached different conclusions, both as to the existence of violations and as to the appropriateness of a preliminary injunction. But many of the issues are close ones, and we cannot say that the district court abused its considerable discretion in denying a preliminary injunction....

Liberty Counsel issued a press release announcing the decision.

No Judgment On Pleadings In Mosque's RLUIPA Lawsuit

In Minhal Academy of Turnersville, Inc. v. Township of Washington,(D NJ, Aug. 25, 2021), a New Jersey federal district court denied plaintiffs' motion for judgment on the pleadings in a RLUIPA challenge to the Township's refusal to allow a mosque to continue to operate in a commercial condominium complex. The court said in part:

Plaintiffs allege that Defendants’ denial of a use variance has made their religious exercise inconvenient and costly, but nothing more. The Court will therefore deny Plaintiffs’ motion on this ground because they have not conclusively shown that Defendants’ denial caused them substantial hardship....

Plaintiffs are not entitled to judgment on the pleadings on their equal terms claim because the Complaint does not identify a “nonreligious assembly or institution” that received comparatively better treatment under the zoning laws at issue here....

[I]n order to establish their RLUIPA nondiscrimination claim, Plaintiffs must show that the Township treated Plaintiffs worse than non-Muslim comparator institutions because Plaintiffs are Muslim.... 

Ultimately the Court finds that Plaintiffs’ fact intensive RLUIPA nondiscrimination claim should be resolved with a complete factual record.

Suit Challenges Vaccine Mandate Without Religious Exemption

Suit was filed yesterday in a Maine federal district court on behalf of over 2000 health care workers (all filing anonymously) challenging Maine Governor Janet Mills' order that all health care workers be vaccinated against COVID-19, without any accommodation or exception for religious objections. Medical exemptions are still available.  The complaint (full text) in Jane Does 1-6 v. Mills, (D ME, filed, 8/25/2021), alleges free exercise and religious discrimination violations, saying in part:

The dispute in this case is not about what accommodations are available to Plaintiffs or whether accommodation of Plaintiffs’ sincerely held religious objections can be conditioned on compliance with certain reasonable requirements....The dispute is about whether Defendants are required to even consider a request for reasonable accommodation of Plaintiffs’ sincerely held religious beliefs....

Plaintiffs all have sincerely held religious beliefs that preclude them from accepting or receiving any of the three available COVID-19 vaccines because of the connection between the various COVID-19 vaccines and the cell lines of aborted fetuses, whether in the vaccines’ origination, production, development, testing, or other inputs....

Plaintiffs have all informed their respective employers that they are willing to wear facial coverings, submit to reasonable testing and reporting requirements, monitor symptoms, and otherwise comply with reasonable conditions that were good enough to permit them to do their jobs for the last 18 months with no questions asked.

Liberty Counsel issued a press release announcing the filing of the lawsuit.

Conviction and Sentence of Mother Emanuel Church Shooter Uphehld

In United States v. Roof, (4th Cir., Aug. 25, 2021), the U.S. 4th Circuit Court of Appeals, in a 149-page opinion, affirmed the hate crime and obstructing religion convictions of Dylan Roof who shot and killed nine members of Charleston, South Carolina's Mother Emanuel Church who were attending a Bible study group. Roof's attorneys raised 19 separate issues on appeal. The court concluded that proof of religious hostility is not required for a conviction under the religious obstruction statute, 18 USC § 247(a)(2). It also concluded that Congress did not exceed its powers under the 13th Amendment when it enacted the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 18 U.S.C. § 249. The court also upheld the death sentence imposed, saying in part:

No cold record or careful parsing of statutes and precedents can capture the full horror of what Roof did. His crimes qualify him for the harshest penalty that a just society can impose. We have reached that conclusion not as a product of emotion but through a thorough analytical process, which we have endeavored to detail here. In this, we have followed the example of the trial judge, who managed this difficult case with skill and compassion for all concerned, including Roof himself.

ABC reports on the decision.                       

6th Circuit Upholds Michigan's Classroom Mask Mandate

In Resurrection School v. Hertel, (6th Cir., Aug. 23, 2021), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, rejected free exercise, equal protection and due process challenges to Michigan's previous COVID-19 mask order for schools.  The court affirmed the denial of a preliminary injunction sought by a Catholic elementary school. All 3 judges agreed that the case is not moot because the mask requirement might be re-imposed.  The majority, however, held:

[T]he district court ... correctly concluded that because the requirement to wear a facial covering applied to students in grades K–5 at both religious and non-religious schools, it was neutral and of general applicability.

Judge Siler filed an opinion dissenting in part. Detroit News, reporting on the decision, says that the school will seek en banc review.