Product Liability/ Negligence Suit Against Facebook Seeks $150B On Behalf Of Rohingya Refugees

An unusual class action lawsuit was filed this week against Facebook in a California state trial court on behalf of all Rohingya refugees in the United States who left Myanmar on or after June 1, 2012. It asks for $150 billion in damages for knowingly fueling anti-Rohingya sentiment that enabled the military government of Burma (Myanmar) to engage in ethnic cleansing campaign against the Rohingya. The complaint (full text) in Jane Doe v. Meta Platforms, Inc., (CA Super. Ct., filed 12/6/2021), sets out product liability and negligence claims against Facebook, saying in part:

168. The design of Facebook’s algorithms and product resulted in the proliferation and intensification of hate speech, misinformation, and conspiracy theories attacking the Rohingya in Burma, radicalizing users, causing injury to Plaintiff and the Class, as described above. Accordingly, through the design of its algorithms and product, Facebook (1) contributed to the development and creation of such hate speech and misinformation and (2) radicalized users, causing them to tolerate, support, and even participate in the persecution of and ethnic violence against Plaintiff and the Class.

169. Because (1) the persecution of the Rohingya by the military government was widely known before Facebook launched its product in Burma and (2) Facebook was repeatedly warned after the launch that hate speech and misinformation on the system was likely to result in ethnic violence, Facebook knew and had reason to expect that the Myanmar military and non-Rohingya civilians would engage in violence and commit atrocities against Plaintiff and the Class.

According to the Rohingya Facebook Claim Website, lawyers plan to file a similar suit in the United Kingdom on behalf of Rohingya living elsewhere than the United States. A Letter of Notice has been sent to Facebook. CNN reports on the lawsuits.

School District Sued For Favoring Christian Cultural and Speech Activities

Suit was filed this week in a California federal district court alleging that a California school district has given preference to Christian cultural and speech activities over those of other religions, including Judaism. The complaint (full text) in Lyons v. Carmel Unified School District, (ND CA, filed 12/7/2021), particularly focuses on the refusal by Carmel River School to allow the display of an inflatable menorah at a widely-promoted after-school holiday celebration which will include the decoration and lighting of a Christmas tree and Christmas-themed holiday songs. The complaint alleges that the school has violated the Establishment and Free Exercise Clauses as well as free speech and equal protection provisions. Courthouse News Service reports on the lawsuit.

District Court Affirms Bankruptcy Court's Ruling On Property Dispute Between Two Rabbis

In Zaks v. Mosdos Chofetz Chaim Inc., (SD NY, Dec. 7, 2021), a New York federal district court affirmed a bankruptcy court's decision in a dispute between two rabbis, who are brothers, over the transfer of real property in Spring Valley, New York under the Plan of Reorganization of Mosdos Chofetz Chaim. Among other things, the court rejected appellant's argument that by applying the "common corporate structure" test, the Bankruptcy Court violated the First Amendment right of Mosdos to have its ecclesiastical leadership control all facets of its governance in compliance with its religious obligations.

Transcript and Audio Of Today's Arguments In Carson v. Makin

 Here are links to the transcript and audio of this morning's Supreme Court arguments in Carson v. Makin challenging Maine's exclusion of schools that provide religious instruction from its program that pays high school tuition for students from districts without public high schools. CNN reporting on the arguments said that Justices expressed "deep skepticism" of Maine's exclusion of religious schools. [corrected]

White House Announces Diplomatic Boycott Of Olympics To Protest Uyghur Genocide

White House Press Secretary Jen Psaki announced on Monday a diplomatic boycott of the Beijing Olympics to protest genocide being committed against the Uyghurs and other religious minorities in Xinjiang province:

The Biden administration will not send any diplomatic or official representation to the Beijing 2022 Winter Olympics and Paralympic Games given the PRC’s ongoing genocide and crimes against humanity in Xinjiang and other human rights abuses. 

The athletes on Team USA have our full support.  We will be behind them 100 percent as we cheer them on from home.  We will not be contributing to the fanfare of the Games. 

U.S. diplomatic or official representation would treat these Games as business as usual in the face of the PRC’s egregious human rights abuses and atrocities in Xinjiang. And we simply can’t do that. 

As the President has told President Xi, standing up for human rights is in the DNA of Americans.  We have a fundamental commitment to promoting human rights.  And we feel strongly in our position, and we will continue to take actions to advance human rights in China and beyond.

Indian Court Says Religious Conversion Does Not Change Person's Caste

In Raj v. The Tahsildar, (Madras High Ct., Nov. 17, 2021), the High Court in the Indian city of Madras (Chennai) held that "conversion from one religion to another religion will not change the caste of a person which he belongs." The case involved a petition from a couple seeking an "inter-caste marriage certificate" in order to obtain the priority in public employment that is available to inter-caste couples.  The claim was based on petitioner's possession of a Backward Class certificate which he was issued when he converted to Christianity. However, according to the court:

by birth, the petitioner belongs to 'Adi-Dravidar' community and change of religion will not change the community.

Thus the court upheld the denial of the certificate. Normally this would still allow petitioner to claim the benefits reserved for Scheduled Classes. However, under a 1950 Presidential Order, members of Scheduled Classes that convert to Islam or Christianity are denied these benefits.

Loss On COVID Houses Of Worship Restrictions Proves Costly To New York

After extensive litigation, in February a New York federal district court (without opposition from the state) issued an injunction against New York state's COVID-19 fixed capacity and percentage capacity limits on houses of worship” in red and orange zones. (See prior posting). Now in Agudath Israel of America v. Hochul, (ED NY, Dec. 6, 2021), a New York federal district court awarded to plaintiffs attorneys' fees totaling $446,521.94 which must be paid by the state of New York.

Supreme Court Will Hear Arguments Tomorrow In Maine School Tuition Case

Tomorrow, the U.S. Supreme Court will hear oral arguments in Carson v. Makin. In the case, the U.S. 1st Circuit Court of Appeals upheld Maine's statutory provisions that call for paying tuition to out-of-district public or private high schools for students whose districts do not operate a high school. However, to qualify to receive tuition assistance payments, a private school must be non-sectarian. Schools that provide religious instruction do not qualify. (See prior posting.) 

The SCOTUSblog case page has links to the briefs and other filings in the case. The oral arguments will be streamed live at this link when the Court convenes at 10:00 AM Eastern Time on Wednesday.

Jewish Airline Passenger Sues After He Was Forced Off Plane For Refusing To Place Tallit Bag On Floor

The New York Post reports on a lawsuit filed by an elderly Jewish couple who were forced off their American Airlines flight from Miami to New York after an argument with a flight attendant who insisted that Roberto Birman's tallit (prayer shawl) bag be removed from the overhead compartment and placed on the floor beneath his seat. Birman objected saying that his religious beliefs precluded him from placing the tallit on the floor. The Post reports:

As soon as they were ushered out, the crew member allegedly told his coworkers, “Close the gate!”...

They were left without Roberto’s diabetes medications, which were in the checked luggage, got no help from the airline for securing food or a place to stay that night, and were forced to take a taxi to a friend’s home as a hurricane swept in.

Insurance Brokerage Firm Settles EEOC Religious Discrimination Suit

EEOC announced yesterday that Arthur J. Gallagher & Co., an insurance brokerage firm, has agreed to settle a religious discrimination lawsuit by paying $40,000 in damages to an underwriting associate it fired, explaining:

According to the EEOC’s lawsuit, filed last year, Gallagher knew of Yu Rex Noda’s Christian religious practices, including fasting in conjunction with Lent. As set out in the EEOC’s complaint, a “Termination Memo” Gallagher issued cited “fasting” and “meditating” among reasons for firing Noda.

The company will also provide anti-discrimination training to Midwest regional managers.

9th Circuit Lifts Injunction Against School District's Vaccine Mandate

On Nov. 28, the U.S. 9th Circuit Court of Appeals enjoined, pending appeal, the San Diego school district's COVID vaccine mandate because it denied religious exemptions while allowing a deferral option for pregnant students. (See prior posting.) Subsequently the school district removed the deferral option for pregnant students. So in John Doe v. San Diego Unified School District, (9th Cir., Dec. 4, 2021), the court, in a 2-1 decision, held:

Given the removal of the “per se” deferral option for pregnant students, the injunction issued in the November 28, 2021 order has terminated under its own terms.

The majority rejected the claim that medical exemptions, temporary exemptions for students who are homeless, in migrant status or foster care, or in military families, and special provisions for students with Individualized Education Programs, but the absence of religious exemptions, undermine the general applicability of the vaccine mandate.

Judge Ikuta dissented, arguing that these secular exemptions mean that the mandate is not generally applicable and thus must be evaluated under the strict scrutiny standard, saying in part:

These religious and secular activities pose identical risks to the government’s asserted interest in ensuring the “safest environment possible for all students and employees,” because both result in the presence of unvaccinated students in the classroom, who could spread COVID-19 to other students and employees.

Plaintiff's attorney has said that emergency relief will be sought from the U.S. Supreme Court.

UPDATE: Here is plaintiffs' Petition for emergency relief from the Supreme Court, asking for an injunction or stay pending appeal.

Seventh Day Adventist Can Sue Over Forced Sedation

In Snyder v. Robinson, (D ID, Dec. 1, 2021), an Idaho federal district court in its initial screening of an in forma pauperis lawsuit concluded that plaintiff, a Seventh Day Adventist, can move ahead with his allegations that a nurse injected him with drugs to sedate him, in violation of his known religious beliefs. The court also permitted him to proceed with his 4th Amendment and his 14th Amendment right to privacy and bodily integrity claims.

Recent Articles of Interest

From SSRN:

• Nelson Tebbe, The Principle and Politics of Liberty of Conscience,  Harvard Law Review, Vol. 135, p. 267, 2021.
• Robert Forster & Christine Bell, Divine Intervention: Invoking God in Peace Agreements, (in J. Mitchell, S. R. Millar, F. Po and P. Martyn (eds.) The Wiley Blackwell Companion to Religion and Peace, Hoboken: John Wiley and Sons, Forthcoming 2022).
• Divyanshu Dembi, Hate Speech under Article 19(1)(a): Conceptualising the Case for Constitutional Protection of Hate Speech under Indian Law, (June 25, 2021).
• Nelson Robert Lund, Textualism and Bostock, (George Mason Legal Studies Research Paper No. LS 21-12, 2021).
• Roger Colinvaux, Speeding Up Benefits to Charity: Donor Advised Fund and Foundation Reform, (Boston College Law Review, Forthcoming).

From SmartCILP:

• Amy J. Sepinwall, Free Speech and Off-Label Rights, 54 Georgia Law Review 463-522 (2020).

Synagogue Can Move Ahead With Damage Claim for Zoning Denial

In Khal Anshei Tallymawr, Inc. v. Township of Toms River, New Jersey, (D NJ, Dec. 3, 2021), a New Jersey federal district court allowed an Orthodox Jewish congregation to move ahead with its free exercise, RLUIPA, equal protection and state law claims for damages growing out of the zoning denial of a permit to construct a synagogue in an area zoned rural residential. However, since subsequently the challenged regulations have been amended to permit houses of worship as conditional uses in residential zones, the court denied prospective relief while plaintiff determines whether the zoning board will now permit the construction. The zoning amendments were enacted pursuant to the settlement of a RLUIPA lawsuit brought by the Department of Justice. (See prior posting.)

Younger Abstention Applied While Santeria Priestess Is Tried Criminally

In Santeria Sanctuary v. Madison County, Tennessee, (WD TN, Dec. 2, 2021), a Tennessee federal district court applied the Younger abstention doctrine and stayed a federal civil suit while state criminal court proceedings are under way against a Santeria priestess who is under indictment on 676 counts of cruelty to animals. According to the court, plaintiffs claims under RLUIPA and the Tennessee Religious Freedom Restoration Act:

center on Defendants destruction of the Sanctuary and their forced entry into the house of worship during a religious ceremony, along with their seizure of tithes and offerings in violation of the Plaintiffs’ First Amendment right to free exercise of religion.... In addition, Plaintiffs contend the County officers raid on the property, as well as an unlawful search and seizure of money and animals, violates Plaintiffs’ Fourth Amendment rights.... Plaintiffs further maintain that such actions by Defendants imposed substantial burdens on the Plaintiffs by forcing them and the adherents of the Sanctuary to forego the practice of their religious precepts—namely, the sacrifice of live animals....

Cert. Filed In Suit By Parolee Against Christian Homeless Shelter Director

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Carmack v. Janny, (cert. filed 12/3/2021). In the case, the U.S. 10th Circuit Court of Appeals held that a parolee, who is an atheist, should be able to move ahead with his Free Exercise and Establishment Clause claims against his parole officer and the director of a Christian homeless shelter. To stay out of jail, plaintiff was required to stay at the shelter and participate in its religious programming. (See prior posting.) The petition for review frames the question presented as:

Whether the employee of a private, religious nonprofit may be held liable, as a state actor, for making pro bono housing and social services at the nonprofit’s facility contingent on participation in religious programming.

ADF issued a press release discussing the case.

Ministry Designated As "Hate Group" Asks Supreme Court To Reconsider "Actual Malice" Test For Defamation

A petition for certiorari (full text) has been filed with the U.S. Supreme court in Coral Ridge Media Ministries, Inc. v. Southern Poverty Law Center, (cert. filed 11/24/2021). In the case, the U.S. 11th Circuit Court of Appeals affirmed an Alabama federal district court's dismissal of a defamation and religious discrimination suit brought by a Christian ministry and media company. (See prior posting.)  Coral Ridge is designated as a "hate group" by the Southern Poverty Law Center because of Coral Ridge's religious beliefs opposing LGBTQ conduct. The court dismissed the defamation claim because plaintiff failed to adequately plead actual malice (i.e., knowledge of falsity or reckless disregard of the truth). The certiorari petition asks the Supreme Court to reconsider the actual malice standard set out in New York Times v. Sullivan. Los Angeles Blade reports on the filing of the cert. petition.

Oklahoma AG Sues To Invalidate Biden's Vaccine Mandate For Federal Employees

Oklahoma's Attorney General and its Governor, along with 16 Oklahoma Air National Guard members, have sued to invalidate President Biden's Executive Order requiring COVID-19 vaccination for all federal employees. The complaint (full text) in State of Oklahoma v. Biden, (WD OK, filed 12/2/2021), contends that the mandate violates various provisions of the Constitution and federal law, including the Free Exercise Clause:

The vaccine mandate is undermining the sincerely held religious beliefs of Oklahoma residents and at least some individual Plaintiffs. This mandate is not a law of  general applicability because it contains exemptions that almost certainly will be unavailable to some individual Plaintiffs. Specifically, although EO 14043 does not even discuss religious exemptions, the SFWTF says only that a religious exemption might apply.... It adds: “Determining whether an exception is legally required will include consideration of factors such as the basis for the claim; the nature of the employee’s job responsibilities; and the reasonably foreseeable effects on the agency’s operations, including protecting other agency employees and the public from COVID-19.” Id. This non-committal and uncertain language gives Plaintiffs no assurance whatsoever.

The Oklahoma Attorney General issued a press release announcing the filing of the lawsuit.

Religious Child Placement Agency Challenges HHS Non-Discrimination Regulations

Suit was filed yesterday against the U.S. Department of Health and Human Services in a Tennessee federal district court by a religious child welfare agency that offers residential and foster care services for abused and neglected children. The suit challenges an HHS regulation that prohibits foster care and adoption programs receiving federal funds from discriminating on the basis of religion, sex, sexual orientation, gender identity or same-sex marriage status. The regulation expands upon the statutory prohibition on discrimination in such programs on the basis of race, color or national origin. The complaint (full text) in Holston United Methodist Home for Children v. Becerra,(ED TN. filed 12/2/2021), alleges that the regulation exceeds the federal agency's authority and that it violates RFRA and various 1st Amendment rights. The complaint alleges in part:

28. It would substantially burden Holston Home’s exercise of its religious beliefs to knowingly engage in child placing activities in connection with persons that do not agree with its Christian statement of faith and beliefs....

30. It would substantially burden Holston Home’s exercise of its religious beliefs to knowingly engage in child placing activities in connection with couples who may be romantically cohabitating but not married, or who are couples of the same biological sex.

The Trump Administration had issued waivers of the rule for faith-based agencies, but those waivers were rescinded by the Biden Administration last month. (See prior posting). ADF issued a press release announcing the filing of the lawsuit.

White House Hosts Hanukkah Celebration

CNN Reports on yesterday's Hanukkah celebration at the White House, saying in part:

The first and second families held a menorah lighting ceremony to celebrate Hanukkah at the White House on Wednesday evening, marking the first time the holiday has been celebrated at 1600 Pennsylvania Avenue with the Jewish spouse of a president or vice president.

"This is a White House tradition, but for the first time in history it is a family tradition," President Joe Biden said during the event in the East Room. He said the White House was honored to have second gentleman Doug Emhoff, who is Jewish, leading the lighting.

Here is a video of the 30 minute ceremony, via PBS.  The Forward has background on Hanukkah celebrations at the White House.