Religious Accommodation That Violates OSHA Rules Not Required

In Hamilton v. City of New York, (ED NY, Sept.28, 2021), a New York federal district court dismissed religious discrimination and failure to accommodate claims brought by a Jewish New York City firefighter. Plaintiff, who wore a beard for religious reasons, was transferred from full-duty to light duty because OSHA regulations preclude firefighters with beards from wearing close fitting respirators. The court held that NYFD cannot be held liable for failing to offer an accommodation that is expressly prohibited by federal law.

Vegetarian Leafleter Loses Suit Against Police and City

In a Sept. 24, 2021 Order, a Louisiana federal district court accepted the recommendation set out in the magistrate judge's opinion in Hershey v. City of Bossier City, (WD LA, Aug. 23, 2021), and dismissed a suit against the city and two police officers. At issue was police conduct in ordering plaintiff to stop distributing leaflets on a public sidewalk outside an arena at which a Christian rock concert was being held. Plaintiff was distributing literature from the Christian Vegetarian Association. The court held that plaintiff had adequately alleged that the police were given unbridled discretion and engaged in viewpoint discrimination. However the court dismissed plaintiff's claims, summarizing its reasons in part:

[T]he city police officers are entitled to dismissal based on qualified immunity because Plaintiff has not made an adequate showing of clearly established law in the context of this case. The City of Bossier City is entitled to dismissal because the amended complaint does not allege sufficient facts to plead an actionable Monell claim of municipal liability.

Supreme Court Grants Certiorari In Case On Display of "Christian Flag" At City Hall

The U.S. Supreme Court today granted review in Shurtleff v. City of Boston, (Docket No. 20-1800, certiorari granted 9/30/2021) (Docket List). In the case, the U.S. 1st Circuit Court of Appeals upheld the city of Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. (See prior posting.) The SCOTUSblog case page with links to all the briefs and pleadings is here.

Huntsman's Fraud Claim Against Mormon Church Dismissed

In Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (CD CA, Sept. 10, 2021), a California federal district court dismissed a fraud suit brought by James Huntsman against the LDS Church. Huntsman, a prominent LDS Church member, alleged that the Church falsely claimed that no tithing funds would be used in its development of commercial real estate in Salt Lake City. Huntsman claims this was false because the Church used earnings on invested tithing funds for the project. First the court held that the church autonomy doctrine does not require dismissal of the case because the dispute is purely secular. It does not involve an analysis of Church policy or doctrine. However, the court concluded that no reasonable juror could conclude that defendant made a misrepresentation. The President of the Church, while stating that no tithing funds would be used, added that earnings of invested reserve funds will be used. The court also rejected a fraud claim relating to a second project. A Notice of Appeal of the decision to the 9th Circuit has been filed.

Court Says Objections To Mask Requirement Were Not Sincerely Held Religious Beliefs

 In Geerlings v. Tredyffrin/ Easttown School District, (ED PA, Sept. 27, 2021), a Pennsylvania federal district court refused to issue a preliminary injunction sought by parents of four students who claim that the students are entitled to religious exemptions from a school district's COVID-19 mask requirement. The court held that none of the plaintiffs demonstrated a "sincere religious belief". In each case the court concluded either that the asserted beliefs were not sincerely held or were not religious in nature.  The court described the asserted beliefs of each plaintiff:

Ms. Marvin believes people are made in the image of God and it therefore dishonors God to cover our faces....

Ms. Geerlings believes the body is a temple and must not be harmed, and in her view, masks violate the prohibition on harming the body because they are unhealthy....

Mr. Governanti came to believe that he must not harm his daughter, which, in his view, means he must not allow his daughter to wear a mask....

Mr. McLellan believes God intervened in his life to save him from certain trauma, and that masks are a mockery of the gift of life because they cover what makes us human and show a lack of gratitude to the creator.

Court Says U.S. Engaged In Vindictive Subsequent Prosecution of Defendants Originally Charged With Female Genital Mutilation

In United States v. Nagarwala, (ED MI, Sept. 28, 2021), a Michigan federal district court dismissed witness tampering charges against defendants (medical personnel and mothers of minor girls in the small, Indian-Muslim Dawoodi Bohra community) who were originally charged with violating the federal statute banning female genital mutilation. In 2018, the court held that the FGM statute was unconstitutional as exceeding Congress' interstate commerce and treaty powers. (See prior posting.) Subsequently, the government unsuccessfully attempted to convict defendants under superseding indictments, including an indictment for travel with intent to engage in illicit sexual conduct. The court now holds that the latest superseding indictment charging witness tampering was a vindictive prosecution brought in retaliation for defendants asserting their rights. MLive reports on the decision.

Court Enjoins Arizona's Ban On Abortions Because Of Fetal Abnormalities

 In Isaacson v. Brnovich, (D AZ, Sept. 28, 2021), an Arizona federal district court granted a preliminary injunction against enforcement of provisions in an Arizona law that prohibit medical personnel from performing an abortion knowing that the reason the abortion is sought is solely because of a genetic abnormality of the fetus.  It also bans knowingly soliciting or accepting money to finance an abortion because of a genetic abnormality of the child.  The court concluded that the law "does not offer workable guidance about which fetal conditions" are covered by the law, and is unclear about when a doctor or others will be deemed to know or believe what is in the mind of a patient.  The court concluded in part:

Plaintiffs are likely to succeed on their claims that the Reason Regulations are unconstitutionally vague and unduly burden the rights of women to terminate pre-viability pregnancies.

The court refused to enjoin another portion of the law that broadly calls for interpreting other state laws to cover rights of the unborn. Axios and AP report on the decision.

Britain's Court of Appeal Rejects Christian Agency's Ban On Same-Sex Couples Becoming Foster Parents

In The Queen (On the Application of Cornerstone (Northeast) Adoption and Fostering Services, Ltd. v. Her Majesty's Chief Inspector of Education, Children's Services and Skills (OFSTED), (EWCA, Sept. 24, 2021), England's Court of Appeal held that Cornerstone, a Christian foster care agency, violated the Equality Act 2010 and the Human Rights Act 1998 when it required clients with which it placed children to:

Set a high standard in personal morality which recognises that God's gift of sexual intercourse is to be enjoyed exclusively within Christian marriage; abstain from all sexual sins including immodesty, the viewing of pornography, fornication, adultery, cohabitation, homosexual behaviour and wilful violation of your birth sex.

The court said in part:

The detrimental impact on society and on individuals of discrimination on the ground of sexual orientation has led the law to set a demanding standard of justification.... [W]e should be slow to accept that prohibiting fostering agencies from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion....

... [T]here can be no doubting the value of its work or the sincerity of [Cornerstone's] motives. However, in order to justify a policy of this nature, it needed to provide credible evidence that there would otherwise be a seriously detrimental impact on carers and children. The evidence it actually advanced did not go beyond the level of general assertion.... [W]hile I would not rule out the possibility of an organisation in this position putting up a substantial evidence-based case on justification, Cornerstone simply did not do that....

[Thanks to Law & Religion UK for the lead.]

Russia Labels Church of Scientology As "Undesirable" Organization

As reported by the Moscow Times, last Friday the General Prosecutor's Office of the Russian Federation designated the Church of Scientology as non-governmental organizations that are "undesirable" in the territory of the Russian Federation. (Press Release in Russian). The designation applies to both the World Institute of Scientology Enterprises and the Church of Spiritual Technology (L. Ron Hubbard Library). According to the Moscow Times:

Under the law, participants in “undesirable” groups' activities can be punished by up to four years in prison and organizers can receive up to six years.

Since 2007, the Russian government has taken various moves against the Moscow and St. Petersburg branches of Scientology.

British Court Says Fetus Has No Rights Under European Convention On Human Rights

In The Queen (on the Application of Crowter) v. Secretary of State for Health and Social Care, (EWHC, Sept. 23, 2021), a 2-judge High Court panel in Britain rejected an attack on provisions in the Abortion Act 1967 that permit late-term abortions where "there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped...." This has been interpreted to include Down syndrome fetuses. The court rejected claims that this provision violates various provisions of the European Convention on Human Rights. The court said in part:

the European Court has never decided that a foetus, even one post-viability, is the bearer of Convention rights.... To the contrary, it has been content to leave the controversial and difficult issue of when life begins to the margin of appreciation of Contracting States. The fact that both domestic legislation and courts, and the European Court itself, have recognised that there may be circumstances in which the foetus has interests which the State is entitled to protect does not lead to the proposition that it enjoys rights under Article 2.

The court also issued a press summary of the case. Law & Religion UK also reports on the decision.

Recent Articles of Interest

 From SSRN:

• Linda C. McClain, Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing 'Armies of Compassion' 2.0?, (Family Court Review (Forthcoming)).
• Jeffrey A. Redding, Kashmir and Transgender Rights, (National Law School of India Review (2020)).
• Wendy K. Mariner, Shifting Standards of Judicial Review during the Coronavirus Pandemic in the United States, (22 (6) German Law Journal 1039-1059 (2021).
• Thomas McMahon, The Great Commission, Papal Bulls and the Doctrine of Discovery: from the 4th Century to Current Law, (August 26, 2021).
• Josh Blackman, The Irrepressible Myth of Jacobson v. Massachusetts, (Buffalo Law Review Vol. 70, No. __).

From SmartCILP:

• Leslie Gielow Jacobs, Protecting Women's Rights by Keeping Religious Liberty in Its Lane, 59 Duquesne Law Review 54-105 (2021).
• Kyle C. Velte, The Nineteenth Amendment as a Generative Tool for Defeating LGBT Religious Exemptions, 105 Minnesota Law Review 2659-2724 (2021).

San Marino Voters Approve Legalizing First Trimester and Certain Other Abortions

In a referendum yesterday, citizens of the tiny, predominately Catholic European nation of San Marino approved legalization of abortion.  According to AP:

Some 77% of voters approved a referendum proposal calling for abortion to be legal in the first 12 weeks of pregnancy.... Abortion would also be legal beyond that point if the woman’s life is in danger or if her physical or psychological health is at risk because of fetal anomalies or malformations.

With the “yes” votes winning, San Marino’s Parliament must now draft a bill to legalize the procedure. Turnout for the referendum was 41% in the microstate of 33,000 people surrounded by Italy.

3rd Circuit Hears Arguments On School's Presentation of Material On Islam

On Sept. 23, the U.S. 3rd Circuit Court of Appeals heard oral arguments in Hilsenrath v. School District of the Chathams (audio of full oral arguments). In the case, a New Jersey federal district court held that the Chathams' 7th grade World Cultures and Geography course presentation of material about Islam did not violate the Establishment Clause. (See prior posting.) Courthouse News Service reports in detail on the oral arguments, saying that the judges "posed tough questions to both sides." [Thanks to Scott Mange for the lead.]

No Violation In Refusing To Accommodate Prosecutor's Religious Request For Permanent Remote Work

In Leone v. Essex County Prosecutor's Office, (D NJ, Sept. 23, 2021), a New Jersey federal district court ruled against an assistant prosecutor in the Essex County Prosecutor's Office who sought a religious accommodation that would allow him to continue to work from home indefinitely as pandemic remote-work schedules were phased out. Plaintiff claims that his religion "'requires him to pray, including aloud and spontaneously, throughout each day,' preferably in his backyard to access 'peace and solitude.'" Plaintiff rejected numerous proposed accommodations that would allow him to pray while at his office. The court applied rational basis review to plaintiff's 1st Amendment claim, concluding that defendants had articulated "a myriad of reasons" justifying their denial of plaintiff's requested accommodation. It also concluded that there had not been a violation of the New Jersey Law Against Discrimination.

Zoning Ordinance Violates Equal Terms Provision of RLUIPA

In The Church at Jackson v. Hinds County, Mississippi, (SD MS, Sept. 23, 2021), a Mississippi federal district court held that the equal terms provision of the Religious Land Use and Institutionalized Persons Act is violated by provisions on Agricultural Districts in Hinds County's zoning ordinance. The court issued a preliminary injunction, holding that the ordinance treats religious assemblies on less than equal terms with nonreligious assemblies, specifically recreational facilities. Recreational facilities are permitted unconditionally to locate in areas zoned Agricultural, while religious institutions are required to obtain a Special Use Permit in order to do so.

Supreme Court Review Sought By Christian Wedding Website Designer

A petition for certiorari (full text) was filed today with the U.S. Supreme Court in 303 Creative LLC v. Elenis, (Sup. Ct., filed 9/24/2021). In the case, the U.S. 10th Circuit Court of Appeals upheld the application of Colorado's Anti-Discrimination Act to a wedding website design company whose owner for Christian religious reasons refuses to create websites that celebrate same-sex marriages. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

Ukrainian Parliament Outlaws Antisemitism

 JTA reports that the Ukrainian Parliament on Wednesday passed a law banning "antisemitism and its manifestations."  The vote was 283- 6 with 40 abstentions and 33 not present. (Legislative history). According to JTA:

The Law on Prevention and Counteraction to Anti-Semitism in Ukraine defines antisemitism as “a certain perception of Jews, expressed as hatred of Jews.” It lists examples of this, including Holocaust denial and “calling for, concealing or justifying the killing or harm of persons of Jewish origin.” 

The law must still be signed by Ukrainian President Volodymyr Zelensky, who is Jewish.

Rules On Religious Workers' Visas Upheld

In Salesian Society, Province of St. Philip the Apostle, Inc. v. Mayorkas, (D DC, Sept. 22, 2021), the D.C. federal district court dismissed a challenge to the requirements to qualify for religious workers' special immigrant visas. At issue is the requirement that the immigrant will be working in a compensated position in the U.S., and that they worked in a compensated position (or provided their own support) for the two years prior to filing for a visa.  Roman Catholic Salesian Brothers take a vow of poverty. Rejecting plaintiffs' 1st Amendment free exercise challenge, the court said in part:

Plaintiffs object to USCIS’s categorization of the support paid on their behalf for living and other expenses as “non-salaried compensation,” asserting that requiring them to provide corroborating evidence that such support is paid on their behalf would cause them to “lie” because, due to their vow of poverty, “[t]he Salesians do not compensate their ministers.” ... But Plaintiffs have not explained how USCIS’s categorization of the support provided to them as “non-salaried compensation” has “put substantial pressure on [them] to modify [their] behavior and to violate [their] beliefs.”

The court also rejected Establishment Clause and RFRA challenges.

Texas Sues EEOC Over Interpretation of Transgender Rights

The state of Texas this week filed suit in federal district court challenging an EEOC Guidance document (full text) issued in June interpreting the application of the Supreme Court's Bostock decision to rights of transgender employees under Title VII.  The complaint (full text) in State of Texas v. EEOC, (ND TX, filed 9/20/2021), contends that the EEOC's interpretation of requirements for  usage of bathrooms, dress codes and pronoun usage misstates the law, violates the First Amendment and was adopted without following proper procedures. The Texas Attorney General's office issued a press release announcing the filing of the lawsuit.

Suit Says Trader Joe's Failed To Accommodate Religious Objection To COVID Vaccination

Suit was filed earlier this month under Title VII and California state law by a 26-year Christian employee of Trader Joe's who was fired after the company refused to adequately accommodate his religious objections to being vaccinated against COVID. Plaintiff Gregg Crawford was initially granted a religious exemption from the company's mandatory vaccination policy. However an important management meeting was limited to vaccinated employees, and the company refused to arrange an accommodation that would allow Crawford to attend in person or remotely. He was told his non-attendance would negatively affect his performance review. Shortly after Crawford complained about this and consulted an attorney, he was fired. The complaint (full text) in Crawford v. Trader Joe's Company, (CD CA, filed 9/7/2021), alleges violations of Title VII of the 1964 Civil Rights Act and of state anti-discrimination laws. KTLA News reports on the lawsuit.