Biden Meets With Pope Francis

As reported by CNN, President Joe Biden met for 90 minutes this morning with Pope Francis at the Vatican. The White House released a brief readout (full text) of the meeting, which said:

In his audience with Pope Francis today, President Biden thanked His Holiness for his advocacy for the world’s poor and those suffering from hunger, conflict, and persecution. He lauded Pope Francis’ leadership in fighting the climate crisis, as well as his advocacy to ensure the pandemic ends for everyone through vaccine sharing and an equitable global economic recovery.

After his audience with the Pope, Biden met with Vatican Secretary of State Cardinal Parolin. They discussed a variety of issues (White House readout), including advocacy for religious freedom world-wide.

Supreme Court Lifts Stay Of Execution Despite Inmates' Religious Objections To Sentence Conditions

The U.S. Supreme Court yesterday, by a vote of 5-3, in a brief Order (full text) vacated a stay of execution that had been entered by the 10th Circuit in Crow v. Jones (Sup. Ct., Docket No. 21A116). According to the New York Times:

The inmates, John Marion Grant and Julius Jones, had argued that the state’s [Oklahoma's] lethal injection protocol, which uses three chemicals, could subject them to excruciating pain.

They also objected on religious grounds to a requirement imposed by a trial judge that they choose among proposed alternative methods of execution, saying that doing so would amount to suicide.

President Biden's Statement On International Religious Freedom Day

Yesterday was International Religious Freedom Day, commemorating the signing of the International Religious Freedom Act of 1998.(Current version). Yesterday President Biden issued a Statement (full text) marking the day, saying in part:

We stand in defense of religious freedom not only as an expression of our deepest values but also because it is a vital national security priority. The United States will continue to rally the globe to protect and promote the right of freedom of religion or belief, including through multilateral coalitions such as the International Religious Freedom or Belief Alliance.

2nd Circuit Hears Arguments On New York Vaccine Mandate

The U.S. 2nd Circuit Court of Appeals yesterday heard oral arguments in Dr. A v. Hochul. (Audio of oral arguments (mp3 file download)). In the case, 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. (See prior posting.) The case was consolidated for oral argument with We the Patriots USA, Inc. v. Hochul which poses similar issues. (Memorandum of Law ).

Texas Governor Signs Ban On Transgender Girls Participating On Female Sports Teams

On Monday, Texas Governor Gregg Abbott signed HB 25 (full text) which requires transgender students on interscholastic high school athletic teams to compete only on teams that conform to their biological sex as specified on their original birth certificate. The only exception is for female students competing on male teams when no female team is available. The law states that its purpose is:

to further the governmental interest of ensuring that sufficient interscholastic athletic opportunities remain available for girls to remedy past discrimination on the basis of sex.

KRIS TV reports on the new legislation. [Thanks to Scott Mange for the lead.]

Washington Vaccine Mandate Upheld Over Free Exercise Challenge

 In Wise v. Inslee, (ED WA, Oct. 25, 2021), a Washington federal district court refused to enjoin Washington state's COVID vaccine mandate for for educators, healthcare workers, and state employees and contractors. One claim was that the mandate violates free exercise rights. The mandate recognizes that individuals may be entitled to disability related or religious accommodations under various anti-discrimination statutes. According to the court:

Plaintiffs appear to argue Proclamation 21-14 is facially neutral but not generally applicable because it essentially creates “an unlawful faith-based barrier to gainful employment.”....

As Defendants rightly indicate, because there are no exemptions for political, personal, or other objections, if anything, the Proclamation encourages religious practice....   Plaintiffs cannot demonstrate a discriminatory application solely because they disagree with the availability of accommodations. Plaintiffs have failed to demonstrate how the Proclamation is not generally applicable....

Plaintiffs’ objections to the Proclamation relate primarily to their disagreement with Defendants’ judgment regarding public health, which is insufficient to overcome the constitutionality of Defendants’ actions in enacting and promulgating the Proclamation, regardless of which level of scrutiny is applied.

Center Square reports on the decision.

Christian Student Group Challenges University's Non-Discrimination Policy

Suit was filed this week in a Texas federal district court by a Christian student organization at the University of Houston challenging the University's non-discrimination policy that led to a denial of recognition of the group as a Registered Student Organization. The complaint (full text) in Ratio Christi at the University of Houston- Clear Lake v. Khator, (SD TX, filed 10/25/2021), contends that the University violated the 1st and 14th Amendments by:

a. Denying Ratio Christi registered status because it requires that its officers, who have religious responsibilities, share the organization’s religious beliefs and support its purposes;

b. Conditioning a student organization’s access to campus resources and student services fee funding on a system where UHCL officials have unbridled discretion... [and [c]] must consider multiple content- and viewpoint-based factors; and

d. Compelling Plaintiffs to pay student service fees into a system that is viewpoint discriminatory.

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

UPDATE: ADF announced on Oct. 29 that the University has now recognized Ratio Christi as a Registered Student Organization.

New Survey of Antisemitism In U.S. Released

The American Jewish Committee yesterday released it latest annual State of Antisemitism in America report. It includes a Survey of American Jews, a Survey of the U.S. General Public, and a Comparison of the two surveys. Among other things, it indicates that 40% of American Jews and 21% of the general public think that anti-Semitism is a "very serious problem."

EEOC Updates Guidance On Religious Objections To COVID Vaccine

The Equal Employment Opportunity Commission yesterday announced an update to its Technical Assistance Questions and Answers, adding Part L Title VII and Religious Objections to COVID-19 Vaccine Mandates. The extensive new guidance provides in part:

The employer may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement.  Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held.  An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others.  No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

When an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation.

Bloomberg Law reports on the new guidance.

Home-Based Synagogue Sues Over Zoning Restrictions

Suit was filed this month in an Ohio federal district court by a home-based synagogue in a Cleveland suburb alleging that the city's land use regulations violate the Religious Land Use an Institutionalized Persons Act, as well as the federal and state constitutions. The complaint (full text) in Aleksander Shul v. City of University Heights, Ohio, (ND OH, filed 10/13/2021), alleges in part:

Since 2009, Rabbi Shnior Zalman Denciger ... has engaged in prayer services at his residence.... The Property has become known throughout the City as the “Aleksander Shul,” ... that offers Orthodox Jewish prayer services in the Polish Chassidic style, and according to the unique customs of the Aleksander Chassidic sect, which was decimated by the Nazis during the Holocaust.

The City for many years permitted the Aleksander Shul to operate informally at the Property. For many residents of the City, the Aleksander Shul is the only place for them to exercise their religion because, pursuant to their Orthodox Jewish beliefs, they do not travel in cars on the Sabbath....The City, however, has taken various actions to shut down Orthodox Jewish shuls, including the Aleksander Shul, and the City’s zoning scheme makes it impossible to locate any parcel within the City where a place of worship can legally operate.

News 5 Cleveland has additional background on the lawsuit.

Canadian Court Upholds Job Program Funding Limited To Groups Supporting Abortion Rights

In Right to Life Association of Toronto v. Canada , (Fed.Ct., Oct. 22, 2021), Canada's Federal Court in a 63-pagae opinion upheld a requirement in the 2018 Canada Summer Jobs program that required organizations applying for funding to attest that they respected individual human rights, Charter rights and reproductive rights. A right-to-life organization and individuals associated with it claimed that the attestation went beyond the Ministry's authority, was added at the behest of an abortion rights lobby, and infringes their freedom of religion and of speech. The court said in part:

[191] As found, the Attestation was a reasonable policy decision and within the Minister’s authority in accordance with the DESDA [Department of Employment and Social Development Act]. The decision to add the Attestation was not made with a closed mind, for improper purposes, or based on irrelevant considerations.

[192] The effect of the Attestation restricted or limited the Applicants’ rights to freedom of religion and protection against compelled speech, but only minimally and only in the context of the application for 2018 CSJ [Canadian Summer Jobs] funding. The limitation on the Applicants’ Charter rights reflects a proportionate balancing with the objectives of the DESDA and the CSJ program.

National Post reports on the decision.

USCIRF Calls Attention To Persecution of Ahmadiyya Muslims

The U.S. Commission on International Religious Freedom has recently issued a new Factsheet on Persecution of Ahmadiyya Muslims, focusing particularly on issues in Pakistan, Algeria and Malaysia, saying part:

In these countries, authorities have targeted Ahmadis through hate speech and speech inciting violence against them, denied them citizenship, restricted their rights to worship, and prosecuted them for practicing their faith, including by charging them with, and in some cases convicting them of, blasphemy. Some states prohibit Ahmadis from declaring their faith publicly, criminalize them for identifying as Muslim, and prohibit them from calling their houses of worship mosques....

 USCIRF explains:

Because of the differences between Ahmadiyya beliefs and beliefs in Sunni and Shi’a Islam, many Muslims consider Ahmadiyya Muslims to be heretics.

Recent Articles and Books of Interest

 From SSRN:

• Linda C. McClain & James Fleming,  Civic Education in Circumstances of Constitutional Rot and Strong Polarization, (Boston University Law Review, Vol. 101, No. 1771, 2021).
• Judith Geldenhuys & Michelle Kelly-Louw, Demystifying Hate Speech under the PEPUDA, (PER / PELJ 2020(23)).
• Charles W. (Rocky) Rhodes & Howard Wasserman, Solving the Procedural Puzzles of Texas’ Fetal-Heartbeat Law and its Imitators: The Potential for Defensive Litigation, (SMU Law Review, (forthcoming 2022)).
• Howard Wasserman & Charles W. (Rocky) Rhodes, Solving the Procedural Puzzles of Texas’ Fetal-Heartbeat Law and its Imitators: The Limits and Opportunities for Offensive Litigation, (American University Law Review, Vol. 71, 2022).
• Abdul Muqaddas Opeyemi Ishaaq El-Mubarak, Zakariya Mustapha & Isyaku Hassan, Regulation Not Mere Legislation: The Issue of Enhancing Islamic Banking Performance Across Nigeria, (International Journal of Academic Research in Business and Social Sciences 2021).

Recent Books of Interest:

• Spencer W. McBride, Joseph Smith for President-- The Prophet, the Assassins, and the Fight for American Religious Freedom, (Oxford Univ. Press, May 2021).
• Michael Graziano, Errand into the Wilderness of Mirrors-- Religion and the History of the CIA, (University of Chicago Press, June 2021).
• Greg Bourke, Gay, Catholic, and American-- My Legal Battle for Marriage Equality and Inclusion, (Notre Dame Univ. Press, Sept. 2021).
• Alvin H. Rosenfeld (ed.), Contending with Antisemitism in a Rapidly Changing Political Climate,(Indiana Univ. Press, Nov. 2021).

9th Circuit Hears Arguments In Apache Attempt To Prevent Sacred Land Transfer

Last Friday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Apache Stronghold v. United States. (Video of full oral arguments.) In the case, an Arizona federal district court refused to issue a preliminary injunction to prevent a land exchange between the federal government and two foreign mining companies known as Resolution Copper. The land to be conveyed to Resolution Copper contains a sacred Apache ceremonial ground know as Oak Flat. (See prior posting.) In March, the 9th Circuit refused to issue an injunction pending appeal sought by Apache tribal members. (See prior posting.) Eagle Tribune reports on last week's oral arguments.

General Religious Objection Available Under Hawaii's COVID Mandate

In Pelekai v. State of Hawai'i, (D HI, Oct. 22, 2021), a Hawaii federal district court rejected various challenges to Hawaii state and county mandates that public employees be vaccinated against COVD or else submit to regular testing. One of plaintiffs' objections was to language rejecting any religious exemption based on opposition to "specific vaccinations". The court rejected that claim, saying in part:

The policy ... does not prohibit an employee from making the following objection: “I object to all vaccines that have been developed using aborted fetal cell lines on religious grounds.” The latter is not an objection to a specific vaccine, is not prohibited by Honolulu’s policy, and is the objection Plaintiffs themselves claim to want to make.

Oklahoma Governor Condemns State's Issuance Of Non-Binary Birth Certificate

According to The Oklahoman, Oklahoma Governor Kevin Stitt has reacted sharply to a legal settlement by the state's former attorney general. Under the settlement, a state district court in August ordered the State Health Department to reissue a birth certificate with a non-binary sex designation. Last week, Gov. Stitt issued a statement saying:

I believe that people are created by God to be male or female. Period. There is no such thing as non-binary sex and I wholeheartedly condemn the purported OSDH court settlement that was entered into by rogue activists who acted without receiving proper approval or oversight.

Oklahoma House Speaker Charles McCall contended that the settlement is invalid because state law requires any settlement that "substantially impacts the operation or programs of a state agency" be reviewed first by legislative leaders and the governor's office. A member of the legislature has already pre-filed a bill to prevent non-binary designations on birth certificates in the future. Oklahoma House Minority Leader Emily Virgin says she is disgusted by the Governor's statement. [Thanks to Scott Mange for the lead.]

U.S. Returns As Member Of U.N. Human Rights Council

As reported by CNN, on Thursday the United States was elected by the U.N. General Assembly to the United Nations Human Rights Council. This reverses the Trump Administration's withdrawal from the Council three years ago. US Ambassador to the United Nations Linda Thomas-Greenfield, commenting on the U.S.'s role, said in part:

[W]e will promote respect for fundamental freedoms and women's rights, and oppose religious intolerance, racial and ethnic injustices, and violence and discrimination against members of minority groups, including LGBTQI+ persons and persons with disabilities....

[The U.S.]  will oppose the Council's disproportionate attention on Israel, which includes the Council's only standing agenda item targeting a single country.

Also on Thursday, President Biden announced his intention to nominate Michèle Taylor as U.S Representative to the UN Human Rights Council with the rank of Ambassador. The Atlanta Jewish Times has extensive background information on Taylor.

Supreme Court Grants Extra Rapid Review In Texas Abortion Cases, But Postpones Granting Interim Stay

The U.S. Supreme Court today took action to decide quickly whether Texas has effectively shielded its new "heartbeat" abortion law (S.B. 8) from review.  In two cases in which emergency relief was sought, the Court granted review ahead of any decision by the Court of Appeals. In Whole Woman's Health v. Jackson, it granted a petition for certiorari before judgment. (Order List). In the case, the Supreme Court previously refused to prevent Texas' S.B.8 from continuing in effect while its constitutionality is being litigated. (See prior posting.) Also today, the Court acted in United States v. Texas, the Justice Department's challenge to the Texas law.  The Court granted certiorari before judgment and "deferred pending oral argument" the government's motion to vacate the 5th Circuit's stay of the district court's injunction barring enforcement of S.B.8. The grant of review was limited to:

May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.

This parallels the question presented by the Petition for Certiorari in Whole Woman's Health:

[W]hether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.

In both cases, the Court ordered that petitioners' briefs (as well as any amicus briefs) be filed electronically by Oct. 27, and reply briefs be filed by Oct. 29. Oral argument in both cases is set for Nov. 1.

Justice Sotomayor filed a dissent to the Court's refusal in United States v. Texas to grant an immediate stay, pending the appellate process, of enforcement of the law, saying in part:

[T]he Court’s failure to issue an administrative stay of the Fifth Circuit’s order pending its decision on this application will have profound and immediate consequences. By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8’s architects intended... 

 CNN reports on the Court's action, as does the New York Times.

Catherine Lhamon Confirmed By Senate To Head DOE's Office For Civil Rights

On Wednesday, the United States Senate confirmed the nomination of Catherine Lhamon to be Assistant Secretary for Civil Rights at the U.S. Department of Education.  The vote was 51-50, with Vice-President Harris casting a tie-breaking vote. This returns Lhamon to a position she held under the Obama administration. According to Education Week:

During her first tenure under Obama, Lhamon oversaw the office when it helped draft 2016 guidance to schools directing them to allow transgender students to use facilities like restrooms and locker rooms that matched their gender identity.

Canadian Court Upholds COVID Restrictions On Churches

In Gateway Bible Baptist Church v. Province of Manitoba, (MBQB, Oct. 21, 2021), a Manitoba (Canada) trial court, in a 156-page opinion, upheld against constitutional challenges the public health restrictions imposed by the province on gatherings at places of worship and at private homes.  Plaintiffs were several churches and individuals. The court concluded that while the restrictions infringed the rights to freedom of conscience and religion; freedom of thought, belief, opinion and expression; and freedom of peaceful assembly, the Public Health Orders are constitutionally justifiable as reasonable limits under Section 1 of the Charter of Rights and Freedoms. The court said in part:

[T]he decision to temporarily close places of worship and otherwise limit the size of gatherings, was rational, reasoned and defensible in the circumstances of an undeniable public health crisis.

The court went on to conclude that the restrictions did not infringe the rights of liberty or security and did not amount to religious discrimination. The court said in part:

It is the position of the applicants that the impugned PHOs discriminate on the basis of religion in that they classify liquour, cannabis and big-box retailers as “essential” and therefore allow them to remain open [while they] classify churches and religious gatherings as “non-essential”.... Put simply, the applicants submit that it is discriminatory to allow people to assemble in liquor and grocery stores, but not worship at church.... [T]he applicants have inaccurately described Manitoba’s use of the adjective “essential” as it relates to churches and religious gatherings just as they have also failed to appreciate that the distinction in question (between what is permitted to remain open and what must remain closed) is not based on religion.

The Justice Centre for Constitutional Freedoms issued a press release discussing the decision.