Court Defers Ruling On Military's Actions On Religious Exemption Requests From Vaccine Mandate

In Seal I v. Biden, (MD FL, Nov. 22, 2021), a Florida federal district court, after a lengthy discussion of free exercise protection under the 1st Amendment and RFRA, deferred until at least Jan. 7, 2022, ruling on a motion for a preliminary injunction sought by service members seeking religious exemptions from the federal government's COVID vaccine mandate for members of the military. According to the court:

[P]laintiffs claim the regulations — governing in each respective branch the availability of a religious exemption from the COVID vaccine and purporting to comply with the demands of RFRA — in reality disguise an unlawful and pervasive policy of the Secretary of Defense and each branch of the armed forces to deny individual consideration of each claim for a religious exemption, to instead “deny them all,” and to punish, possibly by discharge, without exemption and without accommodation, those who assert a sincere religious objection and accordingly refuse the vaccine....

[T]he data produced by the defendants show that more than 16,643 requests for a religious exemption pend. The military has granted no exemptions but has denied hundreds. This disparity, although susceptible to a benign explanation is, as well, susceptible to an explanation actionable and remediable under RFRA.

The court ordered each branch of the armed forces, beginning Jan. 7, 2022, to file bi-weekly reports on the number of exemption requests and the number granted, as well as on the number of service members court martialed after the denial of a religious exemption. Liberty Counsel issued a press release announcing the decision.

6th Circuit Affirms Dismissal of Minister's Hostile Work Environment Claim

In Middleton v. United Church of Christ Board, (6th Cir., Nov. 22, 2021), the U.S. 6th Circuit Court of Appeals affirmed the dismissal of a Title VII racial discrimination suit brought by a minister claiming an anti-Black hostile work environment. The three-judge panel unanimously agreed that while plaintiff may have been treated badly, it did not rise to the level of a hostile work environment. Two of the judges (Boggs and Larsen, JJ) went on to hold:

[T]he ministerial exception bars any judicial consideration of a church’s tangible employment actions taken against a minister in a discrimination claim, regardless of its underlying basis....  Otherwise, the church would be required to respond that its tangible employment actions were motivated not by discriminatory animus, but by nondiscriminatory reasons.... [T]he court would then be required to conduct a pretext inquiry to determine the church’s true motivation. This would involve an examination of the church’s reasons for determining the fitness and qualifications of its ministers—a determination necessarily informed by religious belief. This is precisely the kind of state inquiry into church employment decisions that the First Amendment forbids.

Judge Moore in a concurring opinion argued that the court need not reach the ministerial exception issue. [Thanks to Heather Kimmel for the lead.] 

 

State Department Designates "Countries of Particular Concern" For Violating Religious Freedom Rights

Last week, in a little noticed move, pursuant to the International Religious Freedom Act the U.S. State Department published this year's designation of countries and non-state actors that are major violators of religious freedom. In a statement, Secretary of State Blinken said:

I am designating Burma, the People’s Republic of China, Eritrea, Iran, the DPRK, Pakistan, Russia, Saudi Arabia, Tajikistan, and Turkmenistan as Countries of Particular Concern for having engaged in or tolerated “systematic, ongoing, and egregious violations of religious freedom.”  I am also placing Algeria, Comoros, Cuba, and Nicaragua on a Special Watch List for governments that have engaged in or tolerated “severe violations of religious freedom.”  Finally, I am designating al-Shabab, Boko Haram, Hayat Tahrir al-Sham, the Houthis, ISIS, ISIS-Greater Sahara, ISIS-West Africa, Jamaat Nasr al-Islam wal-Muslimin, and the Taliban as Entities of Particular Concern.

Many of the designations are the same as last year, except that Russia was moved from the Special Watch List to become a Country of Particular Concern (CPC) and Nigeria was placed on the Special Watch List instead of being designated a CPC. Also the State Department noted "The Taliban’s designation is based on information analyzed as of August 15, 2021." As is often the case, the State Department's designations vary to some extent from the recommendations of the U.S. Commission on International Religious Freedom.

RFRA Defense Precluded In Prosecution of Tribal Member For Violating Closure Order

In United States v. Ortega, (D AZ, Nov. 18, 2021), an Arizona federal district court, ruling on the government's motion in limine to preclude a defense under the Religious Freedom Restoration Act in the prosecution of a member of the Tohono O’odham Nation for violating a closure order at the Organ Pipe Cactus National Monument, said in part:

There was no evidence presented that proved that the government interfered with Ms. Ortega’s prayers or ceremony at Quitobaquito Springs on 9/9/20, other than the distant sound of the heavy machinery. Ms. Ortega left the springs where she was praying and entered the closed construction area. The park rangers advised Ms. Ortega that the area under construction was closed to the public and she was instructed to leave, or she would be arrested.

Ms. Ortega was disturbed by the destruction and desecration of the land near the springs. She was spiritually wounded by the knowledge that the border wall was going to interrupt access of tribal members to their ancestral lands and that important medicinal plants would be destroyed. Construction of the border wall raised painful memories of the harms suffered by native people at the hands of the government throughout history. Ms. Ortega’s testimony was emotional and heartfelt. There is no question that her suffering is genuine and is rooted in her sincerely held religious beliefs. However, the defense was unable to prove that on 9/9/20 the closure order and the ranger’s lawful order that Ms. Ortega leave the construction zone imposed a substantial burden on her ability to engage in her religious activities.

School's Vaccine Mandate Without Religious Exemptions Upheld

In Doe v. San Diego Unified School District, (SD CA, Nov. 18, 2021), a California federal district court denied a temporary restraining order in a suit by a high school student and her parents objecting to the school district's COVID vaccine mandate which did not provide for religious exemptions. The court held that the scope of the injunction sought by plaintiff created standing issues, but regardless of that:

In light of the overwhelming weight of authority upholding vaccination requirements in response to free exercise challenges, the Court finds that Plaintiffs are not likely to succeed on the merits of their claim.

Thomas More Society has more background on the case.

Magistrate Recommends Dismissing Religious Objections To School's Teaching Transgender Understanding

In Jones v. Boulder Valley School District RE-2, (D CO, Oct. 4, 2021), a Colorado federal magistrate judge recommended dismissing a suit by parents of three elementary school students who contended that their free exercise and equal protection rights, as well as their parental rights to control the upbringing of their children, were violated when the school instituted a program to teach tolerance and understanding of transgender individuals that conflicted with the parents religious beliefs.

Plaintiffs ... emphasize that all they want is proper advance notice and the ability to opt-out of transgender programming as provided for by Colorado law....  The problem is that the federal constitution does not mandate advance notice or the ability to opt out of particular classes or programs, and especially not from particular classroom discussions. The federal constitution protects religious children and families by ensuring that a state cannot punish them if they choose to educate their children outside the public system, whether at home or at areligious school. But the federal constitution gives parents no First Amendment or due process right to direct to what is taught in the schools based on their own personal religious beliefs, nor does the federal constitution mandate the right to a religious "opt-out" option from particular classes or specific programming. From the federal constitutional perspective ..., it is up to the local school district to decide what is taught and at what age....

A Notice of Settlement was filed with the court on Nov. 15, and the case was terminated.

Recent Articles of Interest

From SSRN:

• Frederick Mark Gedicks, Custom, Preference, or Nature? Mormon Polygamy, Same-Sex Marriage, and Natural Law Theory, (In Queer and Religious Alliances: Friendship in Family Law and Beyond (Anthem Press, forthcoming 2022)).
• Brady Earley, Contagions, Congregations, and Constitutional Law: Comparing Religious Freedom in the 1918 and 2020 Pandemics, (August 20, 2021).
• Brady Earley, Sacred Ground: Unearthing Religious Freedom of African American Slaves, (September 9, 2021).
• Brady Earley, Religious Freedom 'with Chinese Characteristics', (August 20, 2021).
• Kyler Palmer, Bostock, Backlash, and Beyond the Pale: Religious Retrenchment and the Future of LGBTQ Antidiscrimination Advocacy in the Wake of Title VII Protection, (DePaul Journal for Social Justice, Forthcoming Winter 2021).
• Perry Dane, Robert Cover and Legal Pluralism - Redux, (October 17, 2021).
• Caroline Mala Corbin, The Pledge of Allegiance Revisited: Speech Rights vs Parental Rights, (Indiana Law Journal, Forthcoming).

From SSRN (Abortion Rights):

• Adam Lamparello, Charles MacLean & Brian Owsley, Amicus Brief of Professors Lamparello, MacLean, and Owsley in favor of Petitioners in Whole Woman's Health v. Jackson, US Supreme Court No. 21-463, (October 26, 2021).
• Gary J. Simson & Rosalind Simson, Rescuing Roe, (N.Y.U. Journal of Legislation and Public Policy, volume 24, issue 2, Forthcoming Winter 2022).
• I. Glenn Cohen, Eli Y. Adashi & Lawrence O. Gostin, The Supreme Court, the Texas Abortion Law (SB8), and the Beginning of the End of Roe v Wade?, (The Journal of the American Medical Association Health Forum, published online September 23, 2021, at E1-E2).

From SSRN (Non-U.S. Law):

• Abdulmumini Adebayo Oba & Ismael Ismael, Revisiting the Causes of Delay in the Adjudication of Islamic Personal Law Cases in Nigerian Jurisprudence, (Nnamdi Azikiwe University Journal of International Law and Jurisprudence Vol. 11 No. 1, 2020, pp. 1-14).
• Melanie Levy, Surrogacy and Parenthood: a European Saga of Genetic Essentialism and Gender Discrimination, (Michigan Journal of Gender & Law, Forthcoming).
• Assaf Likhovski & Aviram Shahal, The History of Israeli Pre-State Constitutionalism, (The Oxford Handbook of the Israeli Constitution, Aharon Barak, Barak Medina and Yaniv Roznai (eds.) (Forthcoming)).
• Ismael Ismael & Abdulmumini Adebayo Oba, Judicial Practice in Distribution of Inheritance (Mīrāth) in Islamic Courts in Nigeria,  (De Jure: Jurnal Hukum dan Syari’ah Vol. 11 No. 1, 2019, pp. 1-22).

From elsewhere:

• Columbia Law School, Law, Rights and Religion Project, The Southern Hospitals Report: Faith, Culture, and Abortion Bans in the U.S. South, Nov. 2021).
• U.S. Holocaust Memorial Museum, “To Make Us Slowly Disappear” The Chinese Government’s Assault on the Uyghurs, (Nov. 2021).

Humanist Association Releases 2021 Freedom of Though Report

Last week, the American Humanist Association and Humanists International announced the release of the 2021 Freedom of Thought Report. The press release reads in part:

The 2021 Freedom of Thought report details the risks faced by nonreligious individuals around the world. The focus is on state-imposed discrimination, defined as systemic, legal, or official forms of restrictions on freedom of thought, belief, and expression. 

The report sharply criticizes Saudi Arabia, Iran, Pakistan, and Afghanistan, as well as other countries, for grave violations against the rights of nonreligious people, including the enforcement of blasphemy laws, religious or ideological indoctrination in schools, and more. The 2021 report includes consideration of recent developments in Myanmar and Uruguay as well.

141 Amicus Briefs Filed In Mississippi Abortion Law Case

Oral arguments in Dobbs v. Jackson Women’s Health Organization, the much-watched Mississippi abortion case, will be heard by the Supreme Court on December 1. A near-record number of amicus (friend-of-the-court) briefs have been filed in the case-- 141 in total on the merits. Links to nearly all of the briefs are available on the SCOTUS blog case page for the case. A 2020 National Law Journal article says that the record for number of amicus briefs in one Supreme Court case is 156.

European Court Dismisses Challenges To Irish Constitution's Religious Oaths

In Shortall v. Ireland, (ECHR, Nov. 18, 2021), the European Court of Human Rights dismissed as inadmissible a suit filed by several politicians in Ireland complaining that the Irish Constitution requires the President and members of the Council of State to take oaths containing religious language, without a secular alternative.  The court concluded that none of the litigants were directly affected by the challenged provisions:

[N]one of the applicants have so far been invited to serve on the Council of State, and none claimed that such an appointment was under consideration....

[T]he applicants have not provided any evidence – or even sought to argue – that they could secure the nomination required to stand for election as President.... [T]he applicants ... are seeking to have their victim status accepted, not in the context of a clear, immediate and compelling factual matrix which would allow them to adduce reasonable and convincing evidence that they are at a real risk of being adversely affected by the impugned measure, but rather as a hypothetical outcome, without addressing the very many challenges they would potentially have to overcome to secure that office.

The Court also issued a press release summarizing the decision.

HHS Rescinds Trump Era Religious Exemptions For Child Welfare Agencies In Three States

Yesterday, the Department of Health and Human Services announced that it is rescinding waivers of non-discrimination requirements issued during the Trump Administration to South Carolina, Texas and Michigan, along with certain child welfare agencies in those states. The waivers allowed faith-based foster care placement agencies to receive federal funds even though they select foster parents on the basis of religion. (See prior posting.) In its release yesterday, HHS summarized the background for its action:

Through these waivers, States and child welfare agencies – including States and organizations that did not make such requests - were granted exemptions from program nondiscrimination requirements in a rule that was not in effect. In taking today's actions, HHS is reestablishing its long-standing Department practice of evaluation of religious exemptions and modifications of program requirements on a case-by-case basis, as needed, and as is required by law—which was unprecedently changed in 2017 by the previous Administration. Today, HHS reaffirms its important commitment to core American values:  HHS will not condone the blanket use of religious exemptions against any person or blank checks to allow discrimination against any persons, importantly including LGBTQ+ persons in taxpayer-funded programs.

Settlement Agreement Reached In Arleen's Flowers LGBT Discrimination Case

ADF announced yesterday that a settlement agreement (full text) has been reached in the long-running Arleen's Flowers litigation. In the case, the Washington state Supreme Court held that a florist shop's refusal to provide flowers for a same-sex wedding constitutes sexual orientation discrimination under the Washington Law Against Discrimination, and that enforcement of the law does not violate the constitutional rights of the floral shop owner. In July, the U.S. Supreme Court denied review (see prior posting). According to ADF:

A settlement agreement ... ends a lawsuit brought against floral artist Barronelle Stutzman nearly a decade ago without forcing her to act against her religious beliefs or to pay potentially ruinous attorneys’ fees.... Stutzman has chosen to retire so her beloved employees can run her business, Arlene’s Flowers. She will withdraw a pending petition for rehearing at the U.S. Supreme Court and make a payment of only $5,000 to the two men who sued her.

Stutzman, 77 and a great-grandmother, explained that she is at peace because the settlement allows her to finally retire with her conscience intact, and she knows that the legal effort to protect the artistic freedoms of creative professionals will continue in cases like 303 Creative v. Elenis, which the U.S. Supreme Court could decide to hear soon.

Tri-City Herald reports on the settlement.

9th Circuit Hears Oral Arguments In Ministerial Exception Case

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Orr v. Christian Brothers High School. As reported by Law & Crime, at issue in the case is  "whether a California Catholic school can use the “ministerial exception” to shield itself from claims of racial discrimination by its former principal."

8th Circuit: Buddhist Inmate Not Entitled To Separate Soto Zen Services

In Erdahl v. Pirc, (8th Cir., Nov. 18, 2021), the U.S. 8th Circuit Court of Appeals held that a Buddhist inmate's religious exercise was not substantially burdened by denying him separate Soto Zen religious services. He already can attend existing Buddhist services conducted by the minister he wanted for his separate services. The court concluded:

In the end, the prison only has to provide “a reasonable opportunity” for Erdahl to practice his faith.

Imam Lacks Standing To Challenge Alabama Execution Exclusion

In Maisonet v. Dunn, (SD AL, Nov. 17, 2021), an Alabama federal magistrate judge recommended dismissing for lack of standing a suit by an imam who has previously ministered to inmates on Alabama's death row. Plaintiff challenges Alabama's new execution protocol which bars all religious advisors from the execution chamber. The magistrate judge said in part:

The allegation that "ADOC will continue to enforce a policy of excluding religious advisors—including Imam Maisonet—from the execution chamber" ... is insufficient because the Court has already held that Maisonet does not have a constitutionally protected right to be present in the execution chamber and because there is no allegation, for example, that Maisonet plans to attend a specific execution or that any inmate desires to have Maisonet attend an execution. Although Maisonet alleges that he "remains committed to providing religious support and guidance to the Muslims on Alabama's death row" ..., a commitment to religious support and guidance does not establish a certainly impending injury....

[T]he third-party inmates on Alabama's death row could assert their own rights and, in fact, have done so in appeals all the way to the United States Supreme Court. "It is the inmates, not [Maisonet], who have standing to pursue the primary claim he articulated."

Native American Parents Can Move Ahead With Suit Challenging School's Cutting of Children's Hair

In Johnson v. Cody-Kilgore Unified School District,(D NE, Nov. 10, 2021), a Nebraska federal district court allowed Native American parents (members of the Rosebud Sioux tribe) who practice traditional Lakota religious traditions to move ahead with several of their claims growing out of the school's cutting of their children's hair as part of a lice check. The school's cutting and disposing of the hair violates Lakota tradition. Plaintiffs claim that the school had an unwritten policy of cutting hair during lice checks that only applied to Native American students. The court allowed plaintiffs to proceed with their free exercise and Title VI racial discrimination claims. The court however dismissed plaintiffs' 14th Amendment parental rights claim. The Reader reports on the decision.

New Poll On American's Attitudes Toward Religious Freedom Released

Becket yesterday released its third annual Religious Freedom Index (full text) along with a one-page summary of the full 122-page report. Becket's press release describes the report, in part:

... Religious Freedom Index [is] the only annual poll that tracks trends across the full spectrum of opinions on American religious freedom. This year’s Index reached a new high as Americans bounced back from a uniquely divisive year with revitalized support for religious liberty. In addition to the Index’s standardized annual questions, this year Becket also asked about Americans’ opinions on faith-based organizations, free speech, and the pandemic.

New Orleans Archdiocese Settles False Claims Act Lawsuit

The Department of Justice announced this week that in a settlement of a False Claims Act lawsuit that was originally brought by a whistleblower, the Catholic Archdiocese of New Orleans has agreed to pay the federal government more than $1 million in damages. (Full text of Settlement Agreement).  The whistleblower will receive nearly $200,000. The lawsuit alleges that the Archdiocese knowingly submitted false claims to FEMA for repair or replacement of facilities damaged by Hurricane Katrina. This included damage to a nonexistent central air conditioning unit and misstatement of the sized of a facility. The settlement was approved last month by the U.S. Bankruptcy Court handling the Archdiocese's bankruptcy reorganization. National Catholic Register reports on the settlement.

9th Circuit Hears Arguments On Destruction of Native American Sacred Site

Yesterday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in Slockish v. U.S. Department of Transportation. The facts of the case involving land near Mount Hood in Oregon are described in appellants' opening brief (full text) in part as follows:

Plaintiffs are members of federally-recognized tribes who long practiced their faith at a small sacred site called Ana Kwna Nchi Nchi Patat, or the “Place of Big Big Trees.”.... In the 1980s, when the Government proposed widening a nearby highway, one of Plaintiffs’ leaders informed the Government of the site’s historic and religious significance, including the graves and stone altar. In response, the Government modified its project to protect the site. But in 2008, the Government widened the highway again to add a center turn lane. This time, it protected a nearby wetlands, but completely destroyed the sacred site—cutting down the old-growth trees, bulldozing the burial ground and stone altar, and covering the area under a massive earthen berm.

Becket Law issued a press release on the case. (See prior related posting.)

U.S. House Committee Hears From Faith Leaders On Economic Issues

On Monday, the U.S. House Committee on Economic Disparity & Fairness In Growth held a Bipartisan Economic Roundtable with National Faith Leaders (video of Roundtable). The hearing was designed to explore the economic needs of religious communities, as well as faith-based initiatives and neighborhood partnerships centered around economic justice and development. A list of faith leaders who were involved in the roundtable is available at the Committee's website.