Supreme Court Will Hear Oral Arguments In FISA And Muslim Surveillance

The U.S. Supreme Court this morning will hear oral arguments in Federal Bureau of Investigation v. Fazaga. This case grows out of a suit for damages against FBI agents for discriminatory surveillance of Muslims in California. The issue for the Supreme Court is whether a provision in FISA displaces the state secrets privilege to allow the district court to move ahead in camera, rather than dismissing the claims. Here is the SCOTUS blog case page with links to all of the filings in the case. The arguments will be streamed live by the Court at 10:00 AM from this link. Al Jazeera has a lengthy report on the background of the case. When the transcript and audio of today's oral arguments become available, I will update this post with links.

UPDATE: Here are links to the transcript and audio of the oral arguments. AP reports on the oral arguments.

Ministerial Exception Doctrine Requires Dismissal Of Priest's Interference With Contract Claim

In Tracy v. O'Bell, (PA Super., Nov. 5, 2021), a Pennsylvania state appellate court held that the ministerial exception doctrine requires dismissal of a tortious interference with contract suit by Father Tracy, a Catholic priest, against three influential lay members of the Catholic parish which employed Tracy.  Tracy alleges that these members made false and defamatory statements to parish members and to the bishop in order to have him removed from his position after he discovered unexplained amounts of parish cash in a file cabinet under defendants' control. The court said in part:

[T]he First Amendment provides special protection to communications regarding the selection and retention of religious ministers.... [O]ur result does not insulate lay people from liability from defamatory statements against clergy. Nor do we deprive clergy of the ability to seek to redress all civil wrongs committed against them by lay people. We have no occasion to address those questions. Appellant’s complaint is very specific—he alleges that Appellees, through their communications with the local bishop and others, sought and successfully procured Appellant’s removal from ministry. Our holding is correspondingly narrow—Appellant’s allegations are inextricably intertwined with his removal from ministry, and therefore the trial court properly sustained Appellees’ preliminary objection based on the ministerial exception. 

Greek Top Court Bans Kosher and Halal Slaughter

Last week, Greece's highest administrative court-- the Hellenic Council of State-- in a ruling essentially banned kosher and Halal slaughter of animals in Greece. As reported by Israel Hayom:

The ruling saw the court revoke the standing slaughter permit, which was provided through a ministerial decision that exempted ritual Jewish and Muslim slaughter practices from the general requirement to stun animals prior to killing them.

The ruling further called on Greek lawmakers to devise a way to meet the demands of animal rights advocates and the needs of Jews and Muslims who follow the laws about food in their traditions.

According to the Jerusalem Post:

The reason the court gave for the law being balanced is that it allows for “reversible stunning.”

The court said the law limits one specific aspect of the ritual act of slaughter, not the act of slaughter itself; as such, it does not count as interference with religious practice.

First Ever Scientology Arbitration Award Upheld By 11th Circuit

In Garcia v. Church of Scientology Flag Service Organization, Inc., (11th Cir., Nov. 2, 2021), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, affirmed a district court decision refusing to vacate a arbitration award made under arbitration agreements between the Church of Scientology and two of its former members. After Luis and Maria Garcia were expelled from the Church as "suppressive members", they unsuccessfully sought refunds of their donations and payments. They then sued in federal court seeking $400,000 in damages. The district court compelled arbitration, and the arbitrators awarded the Garcia's only $18,495 in refunds in the first arbitration in the history of the Church of Scientology. The Garcia's unsuccessfully challenged the validity of the arbitration agreement and the conduct of the arbitrators.

On appeal to the 11th Circuit, the majority rejected the argument that the arbitration agreements were procedurally unconscionable because they did not adequately disclose the procedures that would govern the arbitration. The agreements provided that the arbitration would be “conducted in accordance with Scientology principles” by arbitrators who were “Scientologists in good standing with the Mother Church.” They also rejected the claim of substantive unconscionability.  The Garcia's argued that Scientology doctrine prevented a fair hearing for suppressive members.  The Church disagreed.  The court concluded that the 1st Amendment prevents civil courts from resolving disputes about church doctrine.

Judge Rosenbaum dissented, contending in part:

[T]he arbitration agreement is not a valid agreement to arbitrate. Rather, in requiring the Garcias to agree to be governed at arbitration by rules that did not exist and would be devised by the Church and evolve while the arbitration proceeded, the arbitration agreement was as one-sided and unconscionable as an arbitration agreement can be.

News Service of Florida reports on the decision.

4th Circuit: Denial Of Church's Application For Water and Sewer Plan Amendment Violated RLUIPA

In Redeemed Christian Church of God (Victory Temple) Bowie, Maryland v. Prince George's County, Maryland, (4th Cir., Nov. 3, 2021), the U.S. 4th Circuit Court of Appeals held that the legislative amendment to the County’s Water and Sewer Plan which Victory Temple sought to recategorize its property constitutes a "land use regulation" subject to RLUIPA. It also concluded that the denial of Victory Temple's application for a recategorization imposed a substantial burden on its exercise of religion. The court concluded in part:

[T]he County never sought to show at trial that it considered alternatives — such as roadway improvements or additional road signs — before denying the Application. At bottom, we agree with the district court that the County’s denial of the Application fails strict scrutiny review. In these circumstances, the court did not abuse its discretion in granting Victory Temple the injunctive relief that is appealed from.

From 2nd Circuit To Supreme Court, Fight Over NY's Removal Of Vaccine Religious Exemptions Continues

One day after hearing oral arguments in the cases challenging the elimination of religious exemptions from New York's requirement that health care workers be vaccinated against COVID, the U.S. 2nd Circuit Court of Appeals vacated temporary injunctions that had been issued in We the Patriots USA, Inc. v. Hochul  and Dr. A v. Hochul. In its October 29 Order (full text), the 2nd Circuit said that written opinions in the two cases would follow expeditiously. On Nov. 1, petitioners in We the Patriots case filed an Emergency Application (full text) with the U.S. Supreme Court seeking a new injunction while they file a petition for certiorari with the Court. Washington Examiner reports on the filing.

UPDATE: Here is the 2nd Circuit's 50-page opinion supporting its Order rejecting requests for a preliminary injunction. We the Patriots USA, Inc. v. Hochul, (2d Cir., Nov. 4, 2021).

UPDATE2: On Nov. 12, petitioners in the Dr. A case also filed an Emergency Application for an Injunction or in the alternative the granting of certiorari. (Full text of application).

Mississippi City Is Sued Over Refusal To Approve Mosque Site Plan

Suit was filed yesterday in a Mississippi federal district court alleging that the City of Horn Lake denied approval of the site plan for a proposed mosque because of religious animus. The suit alleges violation of various provisions of RLUIPA as well as the 1st Amendment. The complaint (full text) in Abraham House of God and Cemetery, Inc. v. City of Horn Lake, (ND MS, filed 11/3/2021) alleges in part:

Despite the pretextual excuses for their decision, Board members did not work very hard to hide the true reason they denied approval for the project—anti-Muslim prejudice. As then Alderman John E. Jones Jr. told the local newspaper: “I don’t care what they say, their religion says they can lie or do anything to the Jews or gentiles because we’re not Muslims.” In making his motion to reject the mosque’s proposed site plan, Jones ominously warned his fellow Board members, “[I]f you let them build it, they will come. So I think we need to stop it before it gets here.”...

In sum, what should have been an uncomplicated approval of the site plan for the Abraham House of God foundered in a storm of anti-Muslim bias.

ACLU of Mississippi issued a press release announcing the filing of the lawsuit.

Christian Parents Challenge Virginia Ban On Religious Discrimination In Hiring Babysitter

Suit was filed last week in a Virginia state trial court by Christian parents of a developmentally disabled child who sought to employ a regular babysitter who is Christian to help raise their daughter in the Christian tradition. The Virginia Human Rights Act was amended in July 2021 to bars use of religion as a motivating factor in hiring domestic workers, including babysitters, and to bar expressing religious preferences in employment ads. The complaint (full text) in Woodruff v. Herring, (VA Cir. Ct., filed 10/28/2021) contends that application of this law to plaintiffs burdens their free exercise of religion in violation of the Virginia Religious Freedom Restoration Act. Foundation for Parental Rights issued a press release announcing the filing of the lawsuit. [Thanks to Scott Mange for the lead.]

Texas Voters Approve Measure To Ban Limits On Religious Services

In reaction to limits imposed on religious gatherings during the COVID pandemic, Texas voters yesterday approved Proposition 3, a state constitutional amendment which provides:

This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.

The vote was 62.42% in favor, 37.58% opposed. More details at Ballotpedia.

Nurse's Religious Objections Should Have Been Accommodated Under Illinois Right of Conscience Act

 In Rojas v. Martell,(IL Cir. Ct., Oct. 25, 2021), an Illinois state trial court held that under Illinois Healthcare Right of Conscience Act, a county Health Department Clinic should have accommodated the objections of a nurse who on religious grounds would not participate in abortion referrals or provide contraceptives to patients. However, the court found that plaintiff was entitled only to the statutory minimum damages of $2500 because she should have mitigated damages by pursuing a position that was available at a nursing home. The court summarized its holding:

[W]hen one member of a team of employees makes an objection of conscience to performing a minority of her job duties, the employer should be required to accommodate the employee in her present position if doing so does not unreasonably compromise the employer's operations.

ADF issued a press release announcing the decision.

Suit Seeking Permission For Sidewalk Proselytizing Moves Ahead

In Peters v. Metropolitan Government of Nashville & Davidson County, Tennessee, (MD TN, Nov. 1, 2021), a Tennessee federal district court allowed plaintiffs who were prevented from religious proselytizing in areas, including the plaza and sidewalks, outside Nashville's Bridgestone Arena to move ahead with most their 1st and 14th Amendment, and failure-to-train, claims. The court said in part:

Drawing all reasonable inferences in favor of the Plaintiffs, it is reasonable to infer that Metro police officers were enforcing the Arena Policies with the approval or direction of the Metro legal department. At the motion to dismiss stage, this is sufficient to allege plausibly the existence of a municipal policy or custom.

California Ban On Harassing Persons Entering Vaccination Site Violates 1st Amendment

In Right to Life of Central California v. Bonta, (ED CA, Oct. 30, 2021), a California federal district court issued a temporary restraining order barring enforcement of a portion of a California statute that protects patients near vaccine sites from "harassment." The statute was challenged by a right-to-life organization that approaches women entering a Planned Parenthood clinic. The clinic is covered by the statute because it offers HPV vaccine. The court concluded that the 1st Amendment's free speech protections are violated by the prohibition on "harassing" anyone entering or exiting within 100 feet of the site.  The harassment ban bars approaching within 30 feet of such person to give them a leaflet or handbill, or to display a sign, or engage in oral protest, education or counseling. The court did not enjoin enforcement of the ban on obstructing, injuring, intimidating, or interfering with such person.  ADF issued a press release announcing the decision.

Illinois Legislature Eliminates Religious Exemption For COVID Vaccine Employer Mandates

Last week, the Illinois legislature gave final passage to SB 1169 (full text) which amends the Illinois Health Care Right of Conscience Act to provide:

It is not a violation of this Act for any person or public official, or for any public or private association, agency, corporation, entity, institution, or employer, to take any measures or impose any requirements ... intended to prevent contraction or transmission of COVID-19....

JD Supra explains:

The HCRCA has recently gained notoriety as a way for individuals to avoid complying with employer-mandated vaccine and testing policies and other COVID-19 safety measures. The HCRCA was enacted primarily to ensure that health care providers would not be compelled to participate in providing health care services that they find morally objectionable, such as performing abortions or dispensing contraceptives. However, the HCRCA is broadly worded.... 

While these protections are similar in some ways to Title VII in terms of requiring employers to accommodate employee religious beliefs ..., unlike Title VII, the HCRCA has no “undue hardship” exemption, even if granting an exception would create a significant risk to health and safety or prevent the employer from complying with federal or state regulations.

Religious Exemptions From Title VII Allow LGBTQ Employment Discrimination

In Bear Creek Bible Church v. EEOC, (ND TX, Oct. 31, 2021), a Christian church and a Christian-owned business filed a class action in a Texas federal district court seeking religious exemptions from provisions of Title VII of the Civil Rights Act of 1964. Under the U.S. Supreme Court's Bostock case, Title VII's ban on sex discrimination prohibits employment discrimination based on sexual orientation or gender identity. The court, in a 70-page opinion, held that as to churches and similar religious employers, the religious organization exemption in Title VII allows more than just religious discrimination:

[A] religious employer is not liable under Title VII when it refuses to employ an individual because of sexual orientation or gender expression, based on religious observance, practice, or belief.

As to businesses that assert a religious objection to homosexual and transgender behavior, the court held that Title VII substantially burdens their religious exercise in conducting business, in violation of the Religious Freedom Restoration Act as well as of the 1st Amendment's Free Exercise and Freedom of Association protections.

The court went on to rule on several other questions which the Supreme Court's Bostock decision arguably left unresolved. It concluded: 

• Title VII bars discrimination against bisexuals, just as it does against gays, lesbians and transgender individuals. 
• Policies that require employees to refrain from certain sexual activities, including sodomy, premarital sex, adultery, and other sexual activity outside of marriage between a man and a woman are permitted because they do not apply exclusively to bar homosexual conduct.
• Sex-specific dress codes based on biological sex are permitted because they apply evenly to those who identify with their biological sex and to transgender individuals.
• Policies that prohibit employees from obtaining genital modification surgery or hormone treatment for gender dysphoria violate Title VII.
• Title VII allows employers to have policies that promote privacy, such as requiring the use of separate bathrooms on the basis of biological sex.

Bloomberg Law reports on the decision.

Supreme Court GVR's Challenge To New York's Abortion Coverage Mandate

In Roman Catholic Diocese v. Emami, (Docket No. 20-1501, GVR, 11/1/2021) (Order List) the U.S. Supreme Court today granted certiorari, vacated the judgment below and remanded the case to New York's Appellate Division for further consideration in light of Fulton v. Philadelphia. Justices Thomas, Alito and Gorsuch would have granted full review of the New York decision. In the case, the New York court rejected a challenge by several religious organizations and other plaintiffs to a New York administrative regulation requiring health insurance policies in New York to provide coverage for medically necessary abortion services. (See prior posting.) Becket Law issued a press release discussing the Court's action.

Certiorari Denied In Catholic Hospital's Free Exercise Claim

The U.S. Supreme Court today denied review in Dignity Health v. Minton, (Docket No. 19-1135, certiorari denied 11/1/2021) (Order List.) Justices Thomas, Alito and Gorsuch would have granted review. In the case, a California state appellate court (full text of opinion) held that California's Unruh Civil Rights Act allows a suit against a Catholic hospital for unequal access by a transgender man whose doctor was not permitted to perform a hysterectomy on him at the hospital. The hospital argued that performing the procedure would violate its long-held religious beliefs.

Recent Articles of Interest

 From SSRN:

• Charlie Martel, Racism and Bigotry as Grounds for Impeachment, (New York University Review of Law and Social Change, 45 Rev. L. & Soc. Change 101 (2021)).
• Muhammad Abdullah Fazi, Post-9/11 U.S. Immigration Laws and Implications for Muslims, (Hong Kong Journal of Social Sciences 2021).
• Gunjan Dubey & Ibrahima Haneef, Status of Indian Muslims with Special Consideration to Their Educational Attainment, (January 22, 2021).
• Robert W. Tuttle, Foster Care and the Growing Tension Between the Religion Clauses: A Comment on Rogers v. HHS, (60 Family Court Review ___ (forthcoming 2022)).
• Chao-Ju Chen, Single Equality in the Age of Marriage Equality,  (International Journal of Constitutional Law, Volume 18, Issue 2, July 2020, Pages 461–465).

From SmartCILP:

• Branton J. Nestor, Revisiting Smith: Stare Decisis and Free Exercise Doctrine, 44 Harvard Journal of Law & Public Policy 403-462 (2021).

Supreme Court Will Hear Arguments Today In Texas "Heartbeat" Abortion Ban

The U.S. Supreme Court will hear arguments this morning in two cases challenging the Texas "heartbeat" abortion ban. The question the Supreme Court agreed to consider is not the ultimate constitutionality of the ban, but whether Texas has effectively insulated the law from pre-enforcement challenge.  In Whole Woman’s Health v. Jackson, the question presented by the petition for certiorari is:

whether 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 United States v. Texas, the Supreme Court's grant of certiorari was limited to the question:

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.

The SCOTUS blog case pages for the cases (1, 2 ) have links to all the filings by the parties, as well as to the numerous amicus briefs that have been filed. SCOTUS blog has an extensive preview of the arguments. The arguments will be streamed live by C-SPAN.  At 10:00 AM (EST) arguments in Whole Woman's Health can be heard here. At 11:00 AM (EST) arguments in U.S. v. Texas can be  heard here. I will update this post to furnish links to the transcripts and recordings of the arguments when those become available later today.

UPDATE: Here are links to the transcript and audio of arguments in Whole Woman's Health. And here are the links in United States v. Texas.

Pope Says Biden Should Not Be Denied Communion

According to a New York Times report yesterday:

President Biden told reporters on Friday that Pope Francis had called him a “good Catholic” and said he should keep receiving communion, an unexpected development that appeared to put a papal finger on the scale in a debate raging in the United States’ Roman Catholic Church over whether the president and other Catholic politicians who support abortion rights should be denied the sacrament....

Asked to confirm Mr. Biden’s remarks, Matteo Bruni, the Vatican spokesman, said the Holy See limited its comments to the news release about subjects discussed during the meeting and added, “It’s a private conversation.”

In a separate article today, the New York Times reports that President Biden received communion Saturday evening at St. Patrick’s Church in Rome, an English-speaking church dedicated to the American Catholic community. President Biden is in Italy for a meeting of G20 leaders, as well as for his meeting with Pope Francis.

Supreme Court, 6-3, Denies Injunction Pending Appeal In Maine COVID Vaccination Case

The U.S. Supreme Court yesterday, by a vote of 6-3, in John Does 1-3 v. Mills, (Sup. Ct., Oct. 29, 2021), refused to enjoin enforcement of Maine's COVID vaccine mandate while a petition for Supreme Court review of the 1st Circuit's decision is pending. Healthcare workers sued objecting to the absence of religious exemptions from the mandate. The 1st Circuit in an Oct. 19 opinion (full text) refused a preliminary injunction against enforcement. The Supreme Court's Order was issued without an accompanying majority opinion. However, Justice Barrett, joined by Justice Kavanaugh, issued a short concurring opinion which appears to recognize the concern with the Court's increasing use of its "shadow docket" to render important decision.  Justice Barrett wrote in part:

When this Court is asked to grant extraordinary relief, it considers, among other things, whether the applicant “‘is likely to succeed on the merits.’” ... I understand this factor to encompass not only an assessment of the underlying merits but also a discretionary judgment about whether the Court should grant review in the case.... Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument....

Justice Gorsuch, joined by Justices Thomas and Alito, filed an opinion dissenting from the denial of injunctive relief, saying in part:

Maine has so far failed to present any evidence that granting religious exemptions to the applicants would threaten its stated public health interests any more than its medical exemption already does.

This case presents an important constitutional question, a serious error, and an irreparable injury.... [H]ealthcare workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered. All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention.

SCOTUS blog reports on the decision.