Justice Breyer Refuses To Enjoin Maine Vaccine Mandate Pending Appeal

As previously reported, a Maine federal district court rejected claims by health care employees that Maine violated their free exercise rights when it eliminated religious exemptions from its COVID vaccine mandate for health care workers. The 1st Circuit refused to issue an injunction pending appeal, and plaintiffs sought similar relief from the U.S. Supreme Court through a filing with Justice Breyer. Yesterday in John Does 1-2 v. Mills, Justice Breyer issued an Order reading:

The application is denied without prejudice to applicants filing a new application after the Court of Appeals issues a decision on the merits of the appeal, or if the Court of Appeals does not issue a decision by October 29, 2021.

AP reports on developments.

Christian Employers Group Challenges HHS And EEOC Protection for Transgender Health Care

Suit was filed this week in a North Dakota federal district court by a Christian membership ministry that serves for-profit and non-profit employers challenging two federal rules on health care coverage for gender transition surgery. At issue are (1) an EEOC interpretation of Title VII that requires employers to cover gender transition services in their health plans; and (2) An HHS non-discrimination requirement that forces religiously-affiliated healthcare providers to perform gender transition surgeries, procedures, counseling, and treatments. The complaint (full text) Christian Employers Alliance v. U.S. EEOC, (D ND, filed 10/18/21), alleges in part:

31. CEA members believe and teach that each human being bears the image and likeness of God, and that the two, distinct biological sexes of male and female are complementary and together reflect the image and nature of God.

32. CEA members believe and teach that rejection of one’s biological sex is a rejection of the image of God within that person.

The suit alleges violations of RFRA, free exercise and free speech protections. ADF issued a press release announcing the filing of the lawsuit.

Appellate Court Says Injunction Against Church Picketer Was Too Broad

In Tenth Presbyterian Church v. Snyder, (PA Super, Oct. 18, 2021), a Pennsylvania state appellate court held that the trial court was justified in issuing a preliminary injunction against Phillip Snyder, an excommunicated member of the church, who picketed the church every Sunday. However the appellate court held that the preliminary injunction's requirement that Snyder remain at least 5,000 feet from the church property was not narrowly enough tailored. The appellate court pointed out that Snyder had engaged in aggressive and agitated behavior that frightened Church members, and that he carried a concealed firearm. Nevertheless, it concluded:

[T]he trial court couched its preliminary injunction in the broadest terms to protect the interest of the Church and its members, disregarding Snyder’s constitutional right to protest the Church and its leadership. A five-thousand-foot restriction places Snyder well beyond the point at which his constitutional right to protest is utterly extinguished.  Put succinctly, the five-thousand-foot restriction is not “couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of public order.”

2nd Circuit Upholds Prison's Change In Schedule For Quaker Meetings

In Green Haven Prison Preparative Meeting of the Religious Society of Friends v. New York State Department of Corrections and Community Supervision, (2d Cir., Oct. 18, 2021), the U.S. 2nd Circuit Court of Appeals affirmed the district court's denial of a preliminary injunction to plaintiffs who are individual and groups of Quakers who object to changes in the schedules for Quaker meetings at a maximum security prison. The court held that as to quarterly meetings attended by incarcerated as well outside Quakers, the non-incarcerated plaintiffs had not shown that under RLUIPA the schedule change had imposed a substantial burden on their exercise of religion. As to weekly meetings attended only by incarcerated Quakers, plaintiffs had not exhausted their administrative remedies as required by the Prison Litigation Reform Act.

Justice Department Asks Supreme Court To Reinstate District Court's Injunction Against Texas Abortion Law

In United States v. Texas, the Justice Department today filed in the Supreme Court an Application (full text) to vacate the 5th Circuit's stay of a preliminary injunction that had been granted by a Texas federal district court. The application on the Court's Shadow docket was filed with Justice Alito who is assigned to take emergency filings from the 5th Circuit. At issue is the Justice Department's challenge to the Texas "heartbeat" abortion law. The Justice Department adds that the Court may treat this as a petition for a grant of certiorari before judgment. The Application says in part:

The question now is whether Texas’s nullification of this Court’s precedents should be allowed to continue while the courts consider the United States’ suit. As the district court recognized, it should not: The United States is likely to succeed on the merits because S.B. 8 is clearly unconstitutional and because the United States has authority to seek equitable relief to protect its sovereign interests -- including its interest in the supremacy of federal law and the availability of the mechanisms for judicial review that Congress and this Court have long deemed essential to protect constitutional rights.... 

Again, the Fifth Circuit disputed none of this. Instead, the divided panel’s one-paragraph order stayed the preliminary injunction solely for “the reasons stated in” two decisions addressing a prior challenge to S.B. 8.... But those reasons do not apply to this very different suit. Sovereign immunity forced the private plaintiffs in Whole Woman’s Health to sue individual state officers, and this Court and the Fifth Circuit questioned whether those officers were proper defendants. This suit does not raise those questions because it was brought against the State of Texas itself, and the State has no immunity from suits by the United States. The Fifth Circuit ignored that distinction, which refutes the court’s only justification for the stay.

Justice Alito ordered Texas to file a response by noon on Thursday.  Twenty-three states and the District of Columbia filed a joint amicus brief (full text) in support of the Justice Department.

CNN reports on these developments.

Recent Articles of Interest

From SSRN:

• Caroline Mala Corbin, The Pledge of Allegiance Revisited: Requiring Parental Consent, (Indiana Law Journal, Forthcoming).
• Rafael Domingo Osle, The Right to Religious Freedom: Extension or Erosion?, (Tom Angier, Iain Benson, and Marc Retter (eds), Handbook on Natural Law and Human Rights (Cambridge University Press Forthcoming)).
• Mohammad Fadel, Sovereignty, Territoriality and Islamic Private International Law, (October 12, 2021).

From SmartCILP:

• UCLA Journal of Islamic and Near Eastern Law, Vol. 18 (2020): Engy Abdelkader, China's Repression of Uigher Muslims: A Human Rights Perspective in Historical Context; Yael Efron & Mohammed S. Watad, When "Allahu Akbar" Becomes a Crime: The Israeli Case; Hallie Ludsin, International Human Rights Law and Religious and Cultural Law: Breaking the Impasse; Ryan Riegg, Sources of Saudi Conduct: How Saudi Family Law and Royal Polygyny Produce Political Instability.

LGBTQ Discrimination In Placing Unaccompanied Minor Refugees Is Challenged

Suit was filed earlier this week in federal district court for the District of Columbia challenging the Office of Refugee Resettlement's contracting with religiously-sponsored agencies (including the USCCB) that discriminate on the basis of sexual orientation in providing foster parents for unaccompanied minor refugees. The complaint (full text) in Easter v. U.S. Department of Health and Human Services, (D DC, filed 10/13/2021), alleges in part:

Some ... organizations ... provide taxpayer-funded foster placement services on the federal government’s behalf in a discriminatory manner that categorically excludes lesbian, gay, and bisexual people from participating as prospective foster parents. They contend that the organizations’ religious beliefs justify denying lesbian, gay, and bisexual people from participating equally in the government program that the agencies receive taxpayer funds to administer....

The United States Constitution constrains the government by requiring freedom without favor and equality without exception in performing its functions. And what the government cannot do directly, it may not do indirectly.

Americans United issued a press release announcing the filing of the lawsuit. 

Class Action Challenges Denials Of Religious Exemptions From Federal COVID Vaccine Mandate

A class action lawsuit was filed yesterday in a Florida federal district court on behalf of military personnel, federal employees federal civilian contractors who have been denied a religious exemption from the federal government's COVID vaccine mandate. The complaint (full text) in Navy Seal I v. Biden, (MD FL, filed 10/15/2021) alleges in part:

Plaintiffs ... face a deadline under the Federal COVID-19 Vaccine Mandate to receive a COVID-19 vaccine that violates their sincerely held religious beliefs, and have been refused any religious exemption or accommodation....

Plaintiffs all have sincerely held religious beliefs, rooted in Scripture, that preclude them from complying with the Federal COVID-19 Vaccine Mandate because of the connections 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 also have sincerely held religious beliefs, rooted in Scripture, that their bodies are temples of the Holy Spirit and that they cannot place anything into their Temples without confirmation and conviction from the Holy Spirit.

The suit seeks a temporary restraining order and preliminary and permanent injunctions, claiming violations of the Free Exercise Clause, RFRA and the Federal Food, Drug and Cosmetic Act. Liberty Counsel issued a lengthy press release announcing the filing of the lawsuit.

Supreme Court Denies Cert. In Case Alleging Religious Belief Discrimination

The U.S. Supreme Court on Tuesday denied review in Pasadena Republican Club v. Western Justice Center, (Docket No. 20-1773, certiorari denied 10/12/2021). (Order List). In the case, the U.S. 9th Circuit Court of Appeals dismissed a suit claiming viewpoint discrimination and religious belief discrimination by the Western Justice Center (WJC) that was leasing the historic Maxwell House from the city of Pasedena.  WJC refused to rent space to the Republican Club for a speech by the president of the National Organization for Marriage because NOM's position on same-sex marriage, gay adoption, and transgender rights are antithetical to the values of WJC.  The 9th Circuit (full text of opinion) held that WJC was not a state actor for purposes of the Republican Club’s constitutional claims, and that the the government did not become vicariously liable for the discretionary decisions of its lessee. (See prior related posting.) Pasedena Now reports on the Court's action.

Virginia County Allows Muslim Cemetery, Settling DOJ and Private Litigation

The  Justice Department yesterday announced that it had filed a Notice of Dismissal in United States v. Stafford County Virginia, (ED VA, Oct. 14, 2021). The Department said that it is dismissing its RLUIPA lawsuit because the county has repealed the ordinances that prevented the All Muslim Association of America (AMAA) from developing a religious cemetery for Muslims. the county has also approved a site plan for the new cemetery and has settled a private lawsuit by agreeing to pay AMAA $500,000 in damages.

2nd Circuit: Protesters' Sidewalk Tables Were Not A "Place of Worship" Under FACEA

A provision (18 USC §248) in the Freedom of Access to Clinic Entrances Act of 1994 (“FACEA”) prohibits intentionally injuring, intimidating, or interfering with anyone who is exercising 1st Amendment religious freedom rights “at a place of religious worship.”  In Zhang Jingrong v. Chinese Anti-Cult World Alliance, Inc., (2nd Cir., Oct. 14, 2021), the U.S. Second Circuit Court of Appeals held that "a place of religious worship" in the statute is limited to "a place recognized or dedicated as one primarily used for religious worship", and not merely any place where religion is practiced.  Applying this definition, the court concluded that five tables on the sidewalk in Flushing, Queens, New York where Falun Gong adherents passed out flyers and displayed posters were not a "place of religious worship." The court said in part:

Plaintiffs and their fellow practitioners treated the tables primarily as a base for protesting and raising public awareness about the Chinese Communist Party’s alleged abuses against Falun Gong, rather than for religious worship. Nor was there evidence that the Falun Gong religious leadership had designated the tables as a place primarily to gather for or hold religious worship activities.

Judge Walker filed a concurring opinion arguing that 18 USC §248 exceeds Congress Commerce Clause power, saying in part:

In prohibiting violence against worshippers at places of religious worship, FACEA regulates local, non-economic conduct that has at best a tenuous connection to interstate commerce.

Courthouse News Service reports on the decision.

Maine's Vaccine Mandate Without Religious Exemption Upheld

In Jane Does 1-6 v. Mills, (D ME, Oct. 13, 2021), a Maine federal district court rejected claims by health care employees that Maine violated their free exercise rights when it eliminated religious exemptions from its COVID vaccine mandate for health care workers. The court, denying a preliminary injunction, said in part:

Here, the Rule does not compel the Plaintiffs to be vaccinated against their will, and the Plaintiffs have, in fact, freely exercised their religious beliefs by declining to be vaccinated. This is not to minimize the seriousness of the indirect consequences of the Plaintiffs’ refusal to be vaccinated, as it affects their employment. Nonetheless, the Rule has not prevented the Plaintiffs from staying true to their professed religious beliefs....

The medical exemption at issue here was adopted to protect persons whose health may be jeopardized by receiving a COVID-19 vaccination. The exemption is rightly viewed as an essential facet of the vaccine’s core purpose of protecting the health of patients and healthcare workers, including those who, for bona fide medical reasons, cannot be safely vaccinated. Because the medical exemption serves the core purpose of the COVID-19 vaccine mandate, it does not reflect a value judgment prioritizing a purely secular interest ...—over religious interests.

In addition, the vaccine mandate places an equal burden on all secular beliefs unrelated to protecting public health—for example, philosophical or politically-based objections to state-mandated vaccination requirements—to the same extent that it burdens religious beliefs....

The court rejected plaintiffs' Title VII failure to accommodate claim by concluding that plaintiffs had not exhausted their administrative remedies.

UPDATE: After the 1st Circuit refused to issue an injunction pending appeal, plaintiffs filed a Motion For Writ of Injunction Pending Appeal with the U.S. Supreme court on Oct. 15. (Liberty Counsel press release.)

5th Circuit Reinstates Texas "Heartbeat" Abortion Ban While Appeal Is Pending

By a 2-1 vote tonight, in United States v. State of Texas, (5th Cir., Oct. 14, 2021), the U.S. 5th Circuit Court of Appeals in a one-page Order allowed Texas' restrictive "heartbeat" abortion law to go back into effect while an expedited appeal of the district court's decision enjoining it is heard.

Suit Uniquely Brings Together Issues of Abortion and Vaccines

Suit was filed this week in a California federal district court challenging California's recently enacted SB 742 which creates a 30-foot floating buffer zone to prevent harassment or interference with any person who is entering or exiting a vaccination site. The buffer zone applies to anyone within 100 feet from the vaccination site entrance. The complaint (full text) in Right To Life of Central California v. Bonta, (ED CA, filed 10/13/2021), raises the challenge in a unique factual context. Right to Life is an organization that attempts to dissuade women from having abortions and which provides support to pregnant women and those who have had abortions. Its Outreach Center is located next door to a Planned Parenthood clinic and its staff regularly approaches women who are entering Planned Parenthood. The new law prevents this-- even when outreach staff is on its own property-- because the contiguous Planned Parenthood Center offers HPV vaccine. The complaint alleges that the new law violates plaintiff's 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.

Suit Challenges Connecticut Regulation Of Limited Services Pregnancy Centers

Suit was filed this week in a Connecticut federal district court challenging a Connecticut Public Act 21-17 that prohibits deceptive advertising practices by limited services pregnancy centers which are facilities that do not provide or refer for abortions or emergency contraception. The complaint (full text) in Pregnancy Support Center, Inc. v. Tong, (D CT, filed 10/12/2021), alleges that the law violates plaintiff's free speech, expressive association, free exercise, equal protection and due process rights. It contends in part:

The Act ... is informed by hostility toward pregnancy services centers’ religious beliefs and pro-life viewpoint, and it targets pregnancy service centers’ disfavored religious beliefs for punishment.

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

Baltimore Wrongly Denied Permission For Rally To Protest USCCB Conference

In St. Michael's Media, Inc v. Mayor and City Council of Baltimore, (D MD, Oct. 12, 2021), a Maryland federal district court in an 86-page opinion held that the city of Baltimore violated the free speech and assembly rights of St. Michael's (also known as "Church Militant") when it instructed the company managing the city-owned Pavilion to cease contract discussions with Church Militant.  Church Militant was planning a protest prayer rally across from the Fall General Assembly of the U.S. Conference of Catholic Bishops. According to the court, Church Militant:

“often criticizes the current leadership” of the Catholic Church for what it perceives as “corruption in the Church,” including the Church’s protection of priests and others implicated in the sexual abuse of minors.... In addition, St. Michael’s “is a vocal critic of what it perceives as politicization of the Catholic Church by the USCCB.” ... In particular, it “disagrees with, and criticizes, a number of the USCCB’s positions on religious doctrine and morality, as well as the Catholic Church’s covering up of the sexual abuse committed by priests.”

The city contended:

Church Militant is attempting to hold an event on November 16, 2021 with confirmed speakers including Steve Bannon and others whose speaking engagements and statements have a track record of inviting protestors and counter protestors and supporting the January 6 attack on the Capitol in Washington, D.C. According to available media reports, their events and statements have a demonstrated history of inciting property destruction, physical assaults, and other violence....

The court held, however:

Even under the more lenient standard applied to nonpublic and limited fora, viewpoint discrimination is constitutionally impermissible.... I conclude that plaintiff is likely to succeed on the merits of its claim that the City was not viewpoint-neutral in barring the rally. Therefore, I need not consider whether the City’s actions would have been reasonable in the absence of viewpoint discrimination....

Without question, the City reacted to a perceived safety concern arising from past use of inflammatory remarks by some of the rally speakers. In thwarting the rally, the City essentially invoked or relied on the heckler’s veto. And, in doing so, it exercised complete, unfettered discretion; it acted on an ad hoc basis, without any standards. Further, it has presented somewhat shifting justifications for its actions, with little evidence to show that the decision was premised on these justifications....

The City cannot conjure up hypothetical hecklers and then grant them veto power.... Moreover, invocation of the events of January 6, 2021, as horrifying as they were, cannot, without more, serve as a license for the City to dispense with its obligations under the First Amendment.

The court granted a preliminary injunction and the city has appealed to the Fourth Circuit.

UPDATE: In an Order dated Nov. 3 (full text), the U.S. 4th Circuit Court of Appeals, without opinion, affirmed the district court.

European Court Upholds Vatican's Immunity From Suit In Member-State Courts

In J.C. and Others v. Belgium, (ECHR, Oct. 12, 2021) (full text in French) (press release in English) the European Court of Human Rights in a 6-1 Chamber judgment held that Belgian courts acted properly in recognizing immunity of the Holy See from jurisdiction of domestic courts. At issue was a suit by 24 Belgian, French and Dutch nationals who alleged that as children they were abused by priests. They filed a class action for damages contending that the Church dealt with its sexual abuse problem in a structurally deficient manner. After the dismissal by Belgian courts, 20 of the plaintiffs were able to obtain compensation through the Church's own arbitration center for sexual abuse claims.

6th Circuit: RLUIPA Requires More Than Vegan Sabbath And Holiday Meals For Jewish Inmates

In Ackerman v. Washington, (6th Cir., Oct. 12, 2021), the U.S. 6th Circuit Court of Appeals held that Michigan Department of Corrections universal religious meal plan is inadequate to meet the religious needs of Jewish prisoners. The court summarized its holding:

The Michigan Department of Corrections serves a universal religious diet to all prisoners with religious dietary needs. It created this meal plan to avoid forcing prisoners to eat foods that violate their sincere religious beliefs. And because some religious beliefs forbid eating animal products, the universal religious meals are vegan. Because other prisoners require kosher food, the vegan meal is also kosher.

Gerald Ackerman and Mark Shaykin are Jewish prisoners confined in MDOC facilities. Their religious beliefs require them to eat a meal with kosher meat and a meal with dairy on the Jewish Sabbath and four Jewish holidays. They also believe that they must eat cheesecake on the holiday of Shavuot to celebrate the holiday properly. So they claim that MDOC policies that force them to eat vegan meals on these days substantially burden their sincere religious beliefs. And they argue that the MDOC needs to accommodate their beliefs under the Religious Land Use and Institutionalized Persons Act (RLUIPA). We agree and affirm the district court’s judgment in the prisoners’ favor.

Law & Crime reports on the decision.

New York Enjoined Over Elimination of Religious Exemptions In Vaccine Mandate

In Dr. A v. Hochul, (ND NY, Oct. 12, 2021), a New York federal district court issued a preliminary injunction to health care workers who object to the elimination of religious exemptions from New York's requirement that health care workers be vaccinated against COVID. The court concluded that the absence of an exemption conflicts with the anti-discrimination provisions of Title VII and with the Free Exercise clause.  The court said in part:

What matters here is not whether a religious practitioner would win or lose a future Title VII lawsuit. What matters is that plaintiffs’ current showing establishes that § 2.61 has effectively foreclosed the pathway to seeking a religious accommodation that is guaranteed under Title VII.....

The court also concluded that the law is neither neutral nor generally applicable. The state's original vaccine mandate included both medical and religious exemptions. Subsequently religious exemptions were eliminated. The court said in part:

This intentional change in language is the kind of “religious gerrymander” that triggers heightened scrutiny.

The court had previously issued a temporary restraining order in the case. (See prior posting.) Liberty Counsel issued a press release announcing the decision. AP reports on the decision.

 

Wyoming Supreme Court Rejects Nun's Claim That She Was Engaged In Ritual Of Mortification

In ASM v. State of Wyoming, (WY Sup. Ct., Oct. 12, 2021), the Wyoming Supreme Court rejected appellant's claim that the state violated her free exercise rights when it ordered her involuntary hospitalization after she began injuring herself while in detention on arson charges. Appellant (ASM) claimed that she is a Catholic nun and that she was engaged in the Catholic ritual of mortification when she scratched skin off her face. According to the Court, the psychiatrist who examined ASM explained her conduct in part as follows:

Dr. Schaaf was aware of ASM’s religious beliefs but believed that she “engage[d] [in] and promote[d] religious beliefs as a way to manipulate others around her.” He was also aware of some form of self-chastisement in Catholicism, but opined that it did not fit the way ASM chose to self harm.... Further, ASM’s self-harming behaviors correlated with many occasions when she contacted police officers to report being assaulted when she had in fact been hitting herself. He explained that “at some level [ASM] engage[d] in self[-]harm behaviors not as a way to express herself in a spiritual sense but to again manipulate.” That manipulation was due to her personality disorder.

The Court concluded:

... [E]ven assuming ASM held a sincere religious belief about the Catholic ritual of mortification, she failed to establish that she was engaged in such practice when she injured herself in the detention facility.