5th Circuit Denies En Banc Review In Teacher Qualified Immunity Case

In Oliver v. Arnold, (5th Cir., Dec. 15, 2021), the U.S. 5th Circuit Court of Appeals by a vote of 7-10 denied an en banc rehearing in a suit against a Texas high school teacher by a former student who refused on religious grounds to transcribe the Pledge of Allegiance as part of an assignment. The student alleges that she was retaliated against by the teacher.  The district court refused to grant summary judgment on the teacher's qualified immunity defense and a 3-judge appellate panel, in a 2-1 decision, agreed. (See prior posting). Judge Ho filed a 19-page opinion concurring the denial of an en banc  rehearing of the panel's decision. Three dissenting opinions spanning 15 pages were also filed. Among the issues raised by these are whether the teacher's motive in giving the assignment is relevant and whether the Supreme Court's flag salute cases apply to written school assignments in addition to ceremonies. 

Arizona Asks Supreme Court To Lift, Pending Appeal, Injunction Against Its Genetic-Abnormality Abortion Ban

A petition was filed yesterday with the U.S. Supreme Court seeking a partial stay of a district court injunction that prevents enforcement of Arizona's ban on genetic-abnormality-selective abortions. (See prior posting). The petition (full text) in Brnovich v. Isaacson was filed after the 9th Circuit refused to stay the injunction pending appeal. The petition seeks an injunction while appeals work their way through the appellate courts. SCOTUSblog reports on the Supreme Court filing.

Military Sued After It Withdraws Permission For Selling Religious-Themed Replica Dog Tags

Suit was filed this week against the Department of Defense in a Texas federal district court by a company that creates military-themed replica "dog tags" featuring Army, Marine and Airforce emblems. The emblems are used under trademark licenses from the military services. The company's replica tags-- which are often worn by members of the military and their families-- also feature Biblical verses or religiously inspired phrases. After receiving a complaint from an advocacy organization, the trademark licensing offices of the military services informed the company that it may no longer produce or sell trademark-licensed products that feature religious content. The complaint (full text) in Shields of Strength v. U.S. Department of Defense, (ED TX, filed 12/14/2021) alleges that DoD's actions violate plaintiff's rights under RFRA, the Free Exercise and Establishment clauses as well as its free speech rights. First Liberty issued a press release announcing the filing of the lawsuit.

Court Denies Motion Under RFRA And 1st Amendment To Dismiss Indictments

In United States v. Morales, (SD CA, Dec. 13, 2021), a California federal district court denied a motion to dismiss indictments against three defendants who claimed that the indictments violated their rights under RFRA and the Free Exercise Clause. Among the charges were that defendants induced Imperial Valley Ministry participants to surrender SNAP benefits to the Ministries and that they dispatched IVM participants to panhandle. The court said in part:

The Court finds too attenuated a link between the Government’s prosecution of Defendants for forced labor, document servitude, and benefits fraud and Defendants’ purported religious activities of evangelizing, fundraising, donating to the church, and general operation of IVM programs for there to be a substantial burden, as there remain viable alternative avenues for Defendants to conduct their specified religious activities....

Christian Wedding Photographer Loses Suit Against NY Public Accommodation Law

In Emilee Carpenter, LLC v. James, (WD NY, Dec. 13, 2021), a New York federal district court refused to enjoin the application of New York's public accommodation law to a Christian wedding photographer who refuses on religious grounds to photograph same-sex weddings. The court rejected plaintiff's Free Speech and Free Exercise claims, saying in part:

New York has a compelling interest in ensuring that individuals, without regard to sexual orientation, have “equal access to publicly available goods and services.”...

The crux of Plaintiff’s claims is that her photography is the product of her unique artistic style and vision. Thus, an exemption for Plaintiff’s unique, nonfungible services would necessarily undermine, not serve, the State’s purpose, as it would “relegate [same-sex couples] to an inferior market” than that enjoyed by the public at large....

5th Circuit Denies Injunction Pending Appeal In Challenge To Airline's Vaccine Mandate

In Sambrano v. United Airlines, (5th Cir., Dec. 13, 2021), the U.S. 5th Circuit Court of Appeals, by a 2-1 vote, denied an injunction while an appeal is pending in a challenge by United Airlines employees to the company's vaccine mandate that lacks religious or medical exemptions. The majority in a 3-sentence opinion relied on the reasons stated by the district court in denying a preliminary injunction: namely plaintiffs must show "irreparable injury" in order to obtain an injunction, and mere loss of income is not irreparable-- it can be remedied by recovery of damages. (See prior posting.) 

Judge Ho filed a dissenting opinion, saying in part:

Vaccine mandates like the one United is attempting to impose here present a crisis of conscience for many people of faith. It forces them to choose between the two most profound obligations they will ever assume—holding true to their religious commitments and feeding and housing their children.

To many, this is the most horrifying of Hobson’s choices. And it is a quintessentially irreparable injury, warranting preliminary injunctive relief.

Antisemitism Of Sellers Impacts Court's Decision On Breach Of Contract

In Extended CHHA Acquisition, LLC v. Mahoney, (NY County Sup. Ct., Dec. 3, 2021) a New York trial court granted buyers specific performance of a multi-million dollar contract to purchase a business which sellers attempted to repudiate in order to obtain a better price elsewhere later. The decision is unusual in that anti-Semitism of the sellers was condemned explicitly by, and figured prominently in, the court's opinion. The court said in part:

To be clear, not only did the Seller breach the Purchase Agreement ..., but also the Seller's principals and their agent-representative ... actively took glee ... in being gratuitously abusive and disrespectful of the Buyer's principals and their religious observance. The degree to which [sellers] ... taunted the Buyer's principals to their face and mocked them behind their back because they are Jewish is horrifying and cannot be overstated. Their bigotry is disgusting and shameful, representing the worst and most depraved behavior that has no place in civilized society....

The record also establishes that the Seller worked in bad faith to prevent the closing..... On March 26, 2021, three days prior to the closing, ... Mr. Shemia called to ask to close on Tuesday, March 30, 2021, rather than March 29, 2021, due to Passover.... Mr. Achilarre refused....

Additionally, the Seller is not entitled to dismissal of the Buyer's cause of action for breach of the covenant of good faith and fair dealing.... [T]he evidence of the insidious antisemitism fueling the breach by the Sellers also makes out a claim for breach of the covenant of good faith and fair dealing.

JD Supra has more on the decision.

Local Officials In India Take Aim At Food Carts Selling Eggs

Deccan Herald reported yesterday on the India's most recent religious-cultural controversy-- the sale of eggs by food cart operators. A recent raid by authorities in Ahmedabad confiscated eggs and supplies from street vendors. According to the report:

The place of the humble egg in the street food culture of Gujarat, a state in western India where people take their snacks seriously, has become the latest flashpoint in the growing role of religion in everyday life. Under Prime Minister Narendra Modi, the national government has taken steps in recent years to promote the religion and to sideline Muslims and other groups. 

Emboldened local governments have followed suit, enacting rules in some places that adhere adhere closely to Hindu doctrine. That is especially true in Gujarat, which Modi led for 13 years before becoming prime minister and which is often seen as a laboratory for pushing policies to reshape India along with his Hindu nationalist vision....

Many Hindus are vegetarian, particularly among the elite within India’s traditional caste system, and some of them consider eggs to be meat products.

9th Circuit: Seminary Is Exempt From Title IX In Applying Its Sexual Standards

In Maxon v. Fuller Theological Seminary, (9th Cir., Dec. 13, 2021), the U.S. 9th Circuit Court of Appeals held that Fuller Theological Seminary falls within the religious organization exemption in Title IX even though the school is controlled by its own board rather than an outside religious organization. Plaintiffs sued under Title IX after they were dismissed from the Seminary because, in violation of the school's Sexual Standards, they were in same-sex marriages. The court said that it cannot second-guess the seminary's interpretation of its own religious tenets. Courthouse News Service reports on the decision.

Soap Opera Star Sues ABC Over Religious Exemption To Vaccine Mandate

Litigation over religious exemptions from COVID vaccine mandates continues to grow. Yesterday, Ingo Rademacher-- well known for portraying Jasper Jacks on the ABC soap opera General Hospital-- sued in a California state court after his request for a religious exemption from ABC's vaccine requirement was denied. He argues that the expansive right to privacy afforded by the California state constitution protects both informational privacy and bodily integrity, and can be enforced against private parties. The complaint (full text) in Rademacher v. American Broadcasting Companies, Inc., (CA Super. Ct., filed 12/13/2021) contends:

ABC does not have the authority to force a medical treatment on its employees against their will. Even if it did, it must offer religious exemptions to the forced treatment to anyone who requests one. It cannot discriminate among religions and cannot second-guess the sincerity of one's religious beliefs....

Deadline reports on the lawsuit.

Supreme Court Upholds NY Vaccine Mandate Without Religious Exemption-- This Time Over 14-Page dissent

In Dr. A v. Hochul, (Sup. Ct., Dec. 13, 2021), the U.S. Supreme Court today by a vote of 6-3, refused to enjoin enforcement of New York's COVID vaccine mandate which has no religious exemptions.  This is a companion case to We The Patriots USA v. Hochul which reached a similar result with no Justices filing opinions to accompany the Court's order. (See prior posting.) In Dr. A, Justice Gorsuch filed a 14-page dissent, joined by Justice Alito. The opinion reads in part:

Under the Free Exercise Clause, government “cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.” ...  As a result, we have said that government actions burdening religious practice should be “set aside” if there is even “slight suspicion” that those actions “stem from animosity to religion or distrust of its practices.”...

New York’s mandate is such an action. The State began with a plan to exempt religious objectors from its vaccine mandate and only later changed course. Its regulatory impact statement offered no explanation for the about-face. At the same time, a new Governor whose assumption of office coincided with the change in policy admitted that the revised mandate “left off ” a religious exemption “intentionally.” The Governor offered an extraordinary explanation for the change too. She said that “God wants” people to be vaccinated—and that those who disagree are not listening to “organized religion” or “everybody from the Pope on down.”

Justice Thomas dissented without an opinion. National Law Journal has more on the decision.

Supreme Court Denies Relief In Challenge To NY Vaccine Mandate That Lacks Religious Exemption

In another "shadow docket" case, the U.S. Supreme Court today in a brief Order (full text) denied injunctive relief in We The Patriots USA v. Hochul. Justices Thomas, Alito and Gorsuch dissented. The case was a challenge to the elimination of religious exemptions from New York's requirement that health care workers be vaccinated against COVID. The 2nd Circuit had also denied an injunction. (See prior posting.) CNBC reports on the Court's action.

Exclusion Of Christian School From Scholarship Program Violated Its Free Speech Rights

In Bethel Ministries, Inc. v. Salmon,(D MD, Dec. 10, 2021), a Maryland federal district court held that the free speech rights of a Christian elementary school were violated when the state disqualified it from participating in a scholarship program for disadvantaged students attending private schools. The school lost its eligibility because its handbook set out a policy inconsistent with sexual orientation non-discrimination provisions. The court held that this amounted to an unconstitutional viewpoint-based condition on the school's ability to receive government funding. The court said in part:

Defendants have failed to put forth any evidence that Bethel’s policy has deterred a single prospective applicant from applying for admission at Bethel, let alone any evidence that Bethel has ever denied admission, expelled, or disciplined a student on the basis of sexual orientation.... Instead ... the record reflects that Defendants focused exclusively on the text of Bethel’s handbook....

The text of Bethel’s policy alone is not evidence of discriminatory conduct; the text of the policy is speech.... [E]xcluding Bethel ... based on the text of its admissions policy alone ... is a regulation of speech, not a regulation of conduct....

Not only was Defendants’ decision to exclude Bethel from BOOST eligibility based on Bethel’s speech, but it was based on the specific viewpoints Bethel chose to express in its admissions policy...

ADF issued a press release announcing the decision.

Mom Loses Attempt To Display Menorah At PTA Tree Lighting Ceremony

In Lyons v. Carmel Unified School District, (ND CA, Dec. 10, 2021), a California federal district court denied a temporary restraining order sought to allow the mother of Jewish children in a public school to display a 6-foot inflatable menorah at the PTA's tree lighting ceremony. The school was only willing to permit plaintiff to bring a small menorah to hang as a tree decoration. Rejecting plaintiff's Establishment Clause claim, the court said in part:

Plaintiffs contend that the event advances Christian religions over other religious ... by allowing display of Christian holiday symbols – the tree and ornaments – but banning display of non-Christian holiday symbols such as a menorah....  

Defendants argue that they have not referred to the tree lighting event as involving a “Christmas” tree. Even assuming that the event is viewed as involving the decoration and display of a Christmas tree, however, that would not implicate the Establishment Clause. The Supreme Court has held that “[t]he Christmas tree, unlike the menorah, is not itself a religious symbol.” Cty. of Allegheny v. Am. C.L. Union Greater Pittsburgh Chapter, 492 U.S. 573, 616 (1989)....

The court also rejected plaintiff's free speech claim because the school offered plaintiff the opportunity to reserve School grounds for her own event where she could display the menorah.

Recent Articles and Books of Interest

From SSRN:

• Helen L. Norton, A Framework for Thinking About the Government's Speech and the Constitution, (University of Illinois Law Review, Forthcoming).
• Raphael Cohen-Almagor, Indivisibilité, Sécurité, Laïcité: The French Ban on the Burqa and the Niqab, (French Politics (19 October 2021)).
• Abdelkader Mohamed Sghaier Derbali, The Importance of Establishing an International Zakat Fund for the Service of Humanity, (November 29, 2021).

From elsewhere:

• Steven H. Sholk, A Guide To Election Year Activities of Section 501(c)(3) Organizations, (Practicing Law Institute, 2021 edition).

Recent Books:

• Philip Jenkins, Climate, Catastrophe, and Faith-- How Changes in Climate Drive Religious Upheaval, (Oxford Univ. Press, May 2021).
• Benny Morris & Dror Ze'evi, The Thirty-Year Genocide-- Turkey’s Destruction of Its Christian Minorities, 1894–1924, (Harvard Univ. Press, May 2021).
• Michael D. Breidenbach, Our Dear-Bought Liberty-- Catholics and Religious Toleration in Early America, (Harvard Univ. Press, May 2021).
• Evan Haefeli (ed.), Against Popery-- Britain, Empire, and Anti-Catholicism, (Univ. Virginia Press, Dec. 2021).

Denial Of Religious Exemptions To Vaccine Mandate Violated Free Exercise Rights

In Grantonz v. Earley, (ND OH, Dec. 10, 2021), an Ohio federal district court issued a temporary restraining order preventing the Cleveland Municipal Court from enforcing its COVID vaccine mandate against two employees (a bailiff and a court reporter) who sought, but were denied, religious exemptions. The court said in part:

Where the Cleveland Municipal Court Order compels Plaintiffs to choose between following their religious beliefs or forfeiting their jobs, it significantly burdens their free exercise of religion and is not neutral. Further, by setting up a mechanism for exemptions which are granted at Defendants’ discretion and without an opportunity for appeal, AO 2021-05 is not generally applicable....

The Cleveland Municipal Court’s Administrative Order AO 2021-05 does not pass the test of strict scrutiny. Defendants have not articulated compelling reasons for denial of religious exemptions. In the October 2, 2021 letters to Plaintiffs, in fact, Defendants provided no reasons whatsoever. A policy, such as the one before this Court, that infringes the free exercise of religion, that does not serve interests of the highest order and is not narrowly tailored to achieve those interests cannot survive strict scrutiny. 

6th Circuit Hears Arguments In Challenge To Ban On Marriage Ceremonies By Clergy Ordained Online

The U.S. 6th Circuit Court of Appeals heard oral arguments on Thursday in Universal Life Church Monastery v. Nabors. (Audio of full oral arguments). In the case, a Tennessee federal district court held that the Universal Life Church and two of its ministers have standing to challenge Tennessee's ban on solemnization of marriages by clergy who received online ordination. It also held that the state Attorney General, District Attorney Generals and County Clerks cannot claim sovereign immunity and are proper defendants. (See prior posting.)  Courthouse News Service reports on the arguments. [Thanks to Scott Mange for the lead.]

Texas State Court Holds That SB8-- Heartbeat Abortion Law-- Is Unconstitutional

In Van Stean v. Texas Right To Life, (TX Dist. Ct., Dec. 9, 2021), a Texas state trial court issued a declaratory judgment concluding that SB8, the Texas "heartbeat" abortion law, is unconstitutional under the Texas state constitution as well as the 14th Amendment. In a 48-page opinion, it concluded:

A. Standing for uninjured person. SB 8's grant of standing to "any person" to be awarded "no less than $10,000" and a mandatory injunction without showing harm to himself, taken from a person who has not harmed him, violates the Texas Constitution's "open courts" provision and is unconstitutional.

B. Punishment without due process. SB 8's mandate that trial courts "shall" award "no less than $10,000" to an unharmed claimant from a defendant who did him no harm is punishment and not compensation that will deprive persons of property without due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution.

C. Delegation of executive power to private persons. SB 8's grant of enforcement power to "any person" is an unlawful delegation of power to private persons that violates the Texas Constitution's separation of powers provision and is unconstitutional.

Volokh Conspiracy reports on the decision.

Supreme Court Says Texas Heartbeat Abortion Law Can Be Challenged In Court

The U.S. Supreme Court today in Whole Woman's Health v. Jackson, (Sup. Ct., Dec. 10, 2021), held that abortion providers may sue one set of defendants in their challenge to Texas "heartbeat" abortion law. Eight of the Justices (all but Justice Thomas) concluded that Texas still involved one set of state officials in enforcement of the heartbeat abortion ban. Plaintiffs may challenge the statute by suing the state officials who have disciplinary authority over medical licensees who violate the ban. Thus Texas failed to completely insulate the law from pre-enforcement challenge. 

Justice Thomas filed a dissenting opinion arguing in part:

The principal opinion then proposes that the Texas Medical Board may enforce S. B. 8 under §164.055 of the Texas Occupations Code. Thus, on that view, S. B. 8 permits the Medical Board to discipline physicians for violating the statute despite the Act’s command that “the requirements of this subchapter shall be enforced exclusively through . . . private civil actions,” “[n]otwithstanding . . . any other law.” .... By its terms, S. B. 8’s saving clause preserves enforcement only of laws that “regulate or prohibit abortion.” 

Chief Justice Roberts, joined by Justices Breyer, Sotomayor and Kagan concluded that the Attorney General and court clerks should also be able to be sued in a challenge to the law. His opinion says in part:

The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison....  Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”... The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.

Justice Sotomayor filed a dissenting opinion, joined by Justices Breyer and Kagan, saying in part:

My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions....

This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed....

What are federal courts to do if, for example, a State effectively prohibits worship by a disfavored religious minority through crushing “private” litigation burdens amplified by skewed court procedures, but does a better job than Texas of disclaiming all enforcement by state officials? Perhaps nothing at all, says this Court....

Houston Public Media reports on the decision.

Then in the other challenge to the Texas law, United States v. Texas, (Sup. Ct., Dec. 10, 2021), the Court, over the dissent of Justice Sotomayor, dismissed the writ of certiorari as improvidently granted.

Today Is International Human Rights Day

Today, December 10, is United Nations Human Rights Day, marking the 73rd anniversary of the General Assembly's adoption of the Universal Declaration of Human Rights. This year's theme is "Reducing inequalities, advancing human rights". Article 18 of the Universal Declaration of Human Rights provides:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Yesterday, President Biden issued a Proclamation (full text) declaring today Human Rights Day and the beginning of Human Rights Week.