NY Governor Vetoes Bill Aimed At Preventing Hasidic Jews Moving Into Neighboring Town

Last week (Dec. 22), New York Governor Kathy Hochul vetoed Senate Bill 1811 which would have authorized the Town of Blooming Grove to create community preservation funds that could acquire property needed to preserve the character of the community. (Full text of bill.)  According to JNS, the Governor's Veto Memorandum read in part:

There have been well-documented tensions in Orange County between local elected officials and members of the Hasidic community. Similar tensions in the nearby Town of Chester resulted in litigation. It would be inappropriate to sign this legislation at this juncture, while facts are still being gathered about the situation. Therefore, I am constrained to veto this bill.

JNS reports further:

Blooming Grove is less than 10 miles north of the Chassidic enclave of Kiryas Joel, which has a population of some 30,000 people, nearly all of them chassidim. In recent years, members of the Orthodox community have been moving to nearby towns, including Chester and Blooming Grove. Restrictions on home building and land development are seen by some as an attempt to limit the growth of the Orthodox community in the region.

According to the Agudath Israel of America, which had been lobbying against the legislation for several months, “the real purpose of the bill is to buy up open lands in order to keep Chassidic Jews from purchasing this land and building homes in Blooming Grove … .”

British Employment Tribunal Says Equality Act Does Not Cover Discrimination Because Of Fear Of COVID

Among other things, Britain's Equality Act, §10, prohibits discrimination on the basis of "belief".  In X v. Y, (Empl. Trib., Dec. 13, 2021), an Employment Tribunal in England's city of Manchester held that an employee's fear of catching COVID-19 and her need to protect herself and others does not qualify as a "belief" for purposes of the Act.  The Tribunal said in part:

I do not find that the claimant’s fear amounts to a belief. Rather, it is a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat. Most (if not all) people, instinctively react to perceived or real threats of physical harm in one way or another.... However, a fear of physical harm and views about how best to reduce or avoid a risk of physical harm is not a belief for the purposes of section 10.

Law & Religion UK reports on the decision.

Deposit Of Nominal Damages Does Not Moot Student's Claim In Remand From Supreme Court

In March in Uzuegbunam v. Preczewski, the U.S. Supreme Court held that a college student's suit for nominal damages was not mooted when the school changed its challenged policies.  The case involves a challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature and proselytizing on campus. (See prior posting.) Now on remand, defendants sought to obtain dismissal of the case by depositing nominal damages of $2 with the court and having it paid over to plaintiffs. In Uzuegbunam v. Preczewski, (ND GA, Dec. 22, 2012), a Georgia federal district court held that this would not moot the case.  ADF issued a press release announcing the district court's decision.

Recent Articles of Interest

 From SSRN:

• Ronit Irshai, Feminist Research in Jewish Studies: What’s in a Name, (in: Re-Making the World: Christianity and Categories, Essays in Honor of Prof. Karen King, edited by Taylor G. Petrey (Germany: Mohr Siebeck, 2019), pp. 257-276).
• Ronit Irshai, The Construction of Gender in Halakhic Responsa by the Reform Movement: Transgender People as a Case Study, (Journal of Modern Jewish Studies, 18:2, 160-176 (2019).
• Pamela Laufer-Ukeles, The Power of Blood: The Many Faces of Menstruation in Jewish Law and Beyond, (Columbia Journal of Gender and Law, Vol. 41, No. 1, 2021).
• Derek Ross, Truth-Seeking and the Unity of the Charter’s Fundamental Freedoms, (98 Supreme Court Law Review (2d), 2020).
• Jimmy Chia-Shin Hsu, Right to Life and Capital Punishment in Transnational Judicial Dialogue, (Asian Journal of Comparative Law, First View, pp. 1 - 27 (2021)).
• Sital Kalantry, Do Reason-Based Abortion Bans Prevent Eugenics?, (Cornell Law Review, Vol. 107, No. 1, 2021).
• Muhammad Munir, One Step Forward, Two Steps Back: The Unending Twist and Turn Regarding the Law of Khul‘ and its Exposition by the Superior Courts in Pakistan, (Manchester Journal of Transnational Islamic Law & Practice (MJTILP) Volume 17, Issue 1:2021, pp. 133-149).

From SmartCILP:

• Charles Adside III, The Establishment Clause Forbids Coercion, Not Cooperation, between Church and State: How the Direct Coercion Test Should Replace the Lemon Test, 95 North Dakota Law Review 533-568 (2020).
• Michael J. Broyde & Alexa J. Windsor, In Contracts We Trust (and No One Can Change Their Mind)! There Should Be No Special Treatment for Religious Arbitration, 21 Pepperdine Dispute Resolution Law Journal 1-42 (2021).

Top 10 Religious Liberty and Church-State Developments Of 2021

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year.  My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention. The selection of top stories obviously involves a good deal of subjective judgment.  This year many developments were interrelated, so deciding what counts as a separate development was a challenge.  I welcome e-mail comment from those who disagree with my selection of top stories.  Here are my Top Ten picks:

1. A flood of court decisions on religious freedom challenges to COVID-19 restrictions on worship services, followed by state measures to prevent future governmental closing down of church services

2. Supreme Court refuses to enjoin Texas heartbeat abortion law pending appeal, while allowing challenges to the unique law to proceed in lower courts.

3. Extensive challenges to the absence of religious exemptions in COVID vaccine mandates.

4. Supreme Court's increased use of its "shadow docket" to render important decisions.

5. Biden Administration reasserts bans on discrimination against transgender and gay individuals, while treatment of transgender individuals in athletic competitions and in classrooms by teachers who refuse to recognize their gender identity become important issues

6. Supreme Court in Fulton v. City of Philadelphia holds unanimously that Philadelphia has violated the free exercise rights of Catholic Social Services by refusing to contract it to provide foster care services unless it agrees to certify same-sex couples as foster parents. 

7. Congress and President take action against China over Uyghur genocide.

8. The United States returns as a member of the United Nations Human Rights Council.

9. Supreme Court rules on rights of chaplains to be in execution chambers.

10. U.S. bishops back down on denial of communion to President Biden over his views on abortion after Pope supports Biden.

Fraud and Emotional Distress Claims Against Archdiocese Are Dismissed

In Dux v. Bugarin, (MI App., Dec. 21, 2021), a Michigan state appellate court dismissed an intentional infliction of emotional distress (IIED) claim and a fraud claim growing out of the Archdiocese of Detroit's removal of an accused Catholic priest supported by plaintiffs. The court describes plaintiffs' claims:

In their IIED count, plaintiffs claimed defendants’ statement that the allegations of sexual abuse were credible was an “extreme and outrageous act.” In their fraud count, plaintiffs alleged the Archdiocese asked its parishioners, including plaintiffs, to donate money to the Catholic Services Appeal (CSA). Plaintiffs alleged the Archdiocese represented the donations would be used for church ministry and would not be used to settle claims “of any nature” against the Archdiocese.

Dismissing the IIED claim under the ecclesiastical abstention doctrine, the court said in part:

The trial court properly dismissed plaintiffs’ IIED claim because resolution of that claim would require the trial court to delve into matters of ecclesiastical policy concerning how the Archdiocese investigates and evaluates claims of sexual abuse made against its clergy.... [A]ny inquiry into the means and methods by which the Archdiocese evaluates such claims would require the trial court to inquire into ecclesiastical matters forbidden under the First Amendment.

Dismissing plaintiffs' fraud claims, the court said that one of the fraud claims-- that they were defrauded by the statement that donations would be used for the church "ministry"-- would require courts to impermissibly inquire into internal church matters. It would need to decide whether "ministry" includes investigation into sex abuse claims and providing treatment for victims. Turning to a second fraud claim, the court said in part:

Turning then to whether plaintiffs otherwise stated a claim for fraud on the basis of the statement that CSA donations would not be used to settle claims against the Archdiocese, plaintiffs’ claim is premised on the theory that the Archdiocese had a duty to disclose the information about the true purpose of the donations.

“Michigan courts have recognized that silence cannot constitute actionable fraud unless it occurred under circumstances where there was a legal duty of disclosure.”

School's Anti-Racism Curriculum Challenged As Religious Discrimination

Suit was filed yesterday in a Virginia state trial court by parents of a number of school children challenging the Albemarle County School Board's "Anti-Racism Policy" and the curriculum developed to implement it. The complaint (full text) in C__I__v. Albemarle County School Board, (VA Cir. Ct., filed 12/22/2021) alleges violations of a number of provisions of the Virginia state Constitution. The allegations include a religious discrimination claim which reads in part:

302. Defendants’ curriculum discriminates on the basis of religion by teaching that Christianity is a “dominant” “identity” that has oppressed “subordinate” “identities” such as Islam, Buddhism, Judaism, other non-Christian religions, and atheism....

304. Defendants’ curriculum discriminates against Christians by identifying them as “dominant” and an “identity” for others to work against.

305. Defendants’ curriculum discriminates against other religions by identifying them as “subordinate.”

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

Faith-Based Homeless Shelter Denied Injunction Against Alaska City's Anti-Discrimination Laws

In Downtown Soup Kitchen v. Municipality of Anchorage, (D AK, Dec. 20, 2021), an Alaska federal district court refused to grant injunctive relief to a faith-based homeless shelter for women that objected to Anchorage's newly revised public accommodation and housing anti-discrimination laws. The shelter refuses to house transgender women. The court concluded that the faith-based shelter failed to show a credible threat of enforcement of either the public accommodation or the housing sections of the new law. The city takes the position that the provisions do not apply to the shelter and disclaims any intent to prosecute. However the court held that the shelter does have standing to sue for damages for the nearly 3-month period before the city disclaimed any intent to prosecute under the housing provisions. Anchorage Daily News reports on the decision. 

China Imposes Sanctions On USCIRF Commissioners

Radio Free Asia reports that yesterday China imposed sanctions on the chair, vice-chair and two commissioners of the U.S. Commission on International Religious Freedom. They will be barred from entering China, and any assets they hold in China will be frozen.  The move comes in response to recent sanctions imposed on Chinese officials by the U.S. Treasury Department because of human rights abuses against Uyghurs and members of other predominantly Muslim ethnic minority groups in Xinjiang Region. USCIRF issued a press release condemning the Chinese government's action.

Abuse Victim's Claim Against The Vatican Dismissed Under FSIA

In Robles v. Holy See (State of Vatican City), (SD NY, Dec. 20, 2021), a New York federal district court dismissed a suit against the Vatican by plaintiff who was sexually abused by Catholic priest Barry Bossa from 1981 to 1986. Plaintiff claimed that the Vatican's policies contributed to the abuse, and asserted negligence and vicarious liability claims against the Vatican. The court held that under the Foreign Sovereign Immunities Act, it lacks jurisdiction over the Holy See on the claims as plead, saying in part:

At least at this stage ... the exception to the FSIA for tort liability based on the actions of an employee provides jurisdiction for claims of negligence, negligent training, supervision, and retention, and international law claims against the Holy See....

The Holy See’s alleged conduct, such as promulgating policies and supervising its employees and officials, occurred in large part at the Vatican.... As a result, the Holy See is immune from Plaintiff’s claims arising from the Holy See’s conduct that occurred outside the United States....

The Tortious Act Exception also excludes “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused.” 28 U.S.C. § 1605(a)(5)(A). It is at this last step of the analysis that the last of Plaintiff’s remaining claims against the Holy See — negligence, negligent training, supervision, and retention, and violations of customary international law, all pursuant to respondeat superior based on the alleged actions of its putative employees— fail....

Case-law is clear that decisions related to employment and supervision are exactly the kind of policy judgments that the discretionary exclusion was designed to shield.....

Plaintiff’s broader negligence claim against the Holy See pursuant to respondeat superior, including his failure-to-warn and failure-to-report allegations ... is dismissed without prejudice, because, although perhaps a steep uphill climb, Plaintiff could conceivably allege facts in an amended complaint demonstrating lack of discretion as to these actions....

7th Circuit Now Says Wisconsin Wrongly Denied School Bus Aid To Catholic School Students

In St. Augustine School v. Underly, (7th Cir., Dec. 20, 2021), the U.S. 7th Circuit Court of Appeals sent back to the district court a suit challenging Wisconsin's refusal to provide bus transportation to students at St. Augustine School. The decision was based on a Wisconsin statute that requires school districts to bus private school students, but limits the obligation to only one private school affiliated with the same religious denomination or sponsoring group in each attendance district.  Another Catholic school in the same district was already receiving bussing aid.  In 2018, the 7th Circuit rejected 1st Amendment challenges to the law and upheld the state's decision. (See prior posting.)  

Plaintiffs sought review in the U.S. Supreme Court. In 2020, the Supreme Court granted certiorari, summarily vacated the judgment below and remanded the case to the 7th Circuit in light of its decision in Espinoza v. Montana Department of Revenue. At that point, the 7th Circuit decided to certify to the Wisconsin Supreme Court the state law question of how to determine if two schools are affiliated with the same denomination.  The Wisconsin Supreme Court responded to the certified question in July of this year. (See prior posting.) Applying that guidance, the 7th Circuit this week held:

We conclude that the Superintendent’s decision in the case before us was not justified by neutral and secular considerations, but instead necessarily and exclusively rested on a doctrinal determination that both St. Augustine and St. Gabriel’s were part of a single sponsoring group—the Roman Catholic church—because their religious beliefs, practices, or teachings were similar enough....

European Court Says Anti-LGBT Mob Led By Priest and Others Violated European Convention

In Women's Initiatives Supporting Group and Others v. Georgia, (ECHR, Dec. 16, 2021), the European Court of Human Rights in a Chamber Judgment held that Georgia's failure to protect LGBT demonstrators from mob violence violated Article 3 of the European Convention on Human Rights. Article 3 prohibits "inhuman or degrading treatment or punishment."  Demonstrators who were marking International Day Against Homophobia were met with violent counter-demonstrators from a so-called Prayer Rally led in part by a prominent clergyman of the Georgian Orthodox Church. Counter demonstrators included priests and parishes from various churches in Tbilisi. The Court issued a press release summarizing the decision.

Christian Organizations Ask Supreme Court To Stay OSHA Private-Employer Vaccine Mandate

Last Friday, in a 2-1 decision in In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, (6th Cir., Dec. 17, 2021), the U.S. 6th Circuit Court of Appeals dissolved a stay of OSHA's Emergency Temporary Standard that calls for employers of of 100 or more persons to require either COVID vaccination of employees or weekly testing (and masks) for unvaccinated workers. Challenges in some three dozen cases had been consolidated in the 6th Circuit which then had authority to modify or dissolve the prior stay issued by the 5th Circuit. 

Among the consolidated cases was one brought by a number of Christian schools, colleges and organizations that were subject to the rule. They quickly filed an Emergency Application with the U.S. Supreme Court asking for a stay pending appeal of the 6th Circuit's decision. The Application (full text) in Southern Baptist Theological Seminary v. OSHA, (Sup. Ct., filed 12/17/2021) argues:

OSHA lacks jurisdiction to regulate religious non-profit institutions, because they are not “employers” under the OSH Act.

It goes on to contend that the OSHA rule also violates Applicants' religious freedom rights under RFRA and the 1st Amendment, saying in part:

OSHA “commandeers” Religious Institutions “to compel [their] employees” to comply with the mandate.... To ensure compliance, Religious Institutions must probe their ministers’ and employees’ intimate and personal medical decisions that often implicate their religious beliefs. This is precisely the “secular control or manipulation” that the First Amendment prohibits.... In addition, the mandate violates the First Amendment by setting the “terms and conditions of employment” to work for Religious Institutions ... and interfering with their ability to “select[] ... the individuals who play certain key roles”....

Religious Institutions exercise their faith by providing seminary training, providing Catholic and Christian education, engaging in nonprofit ministries, and operating for-profit businesses according to Christian values. The Mandate will force Religious Institutions to take faculty out of classrooms, and staff out of operating these organizations and businesses—for testing on a weekly basis or for non-compliance—which will significantly disrupt Religious Institutions’ mission, including for-profit businesses’ operations and exercise.... This burden is substantial—not mere inconvenience—because Religious Institutions’ employees are not fungible.

ADF issued a press release announcing the filing of the Emergency Application. SCOTUblog discusses the filing.

A second Emergency Application was filed by a different group of Christian organizations.  The Application (full text) in Word of God Fellowship, Inc. v. OSHA, (Sup. Ct., filed 12/19/2021) contends in part:

... [T]he violation of the Ministries’ religious faiths is not cured by the provisions of the ETS and Title VII that provide them with discretion to grant religious accommodations to their employees.... The Ministries cannot put their employees to the test by requiring them to seek religious accommodations for the government-imposed vaccine mandate.... In other words, even asking their employees to make a decision of religious conscience about the vaccine mandate causes the Ministries to engage in what they believe is sin. Moreover, the mask requirement for unvaccinated employees also burdens the Ministries’ religious beliefs, because they believe that OSHA’s requirement that they mask unvaccinated employees would forcibly identify those who are unvaccinated and cause division within their organizations.... The Ministries believe they have a Biblical duty to promote unity within their organizations.

Axios reports on this filing.

Recent Articles Of Interest

 From SSRN:

• Arie Reich & Guy Harpz,Kosher and Halal Slaughtering Before the European Court of Justice: Voting with Your Trolley Instead of an Outright Ban?, (Texas International Law Journal, Forthcoming).
• Stephen I. Vladeck, The Most-Favored Right: COVID, the Supreme Court, and the (New) Free Exercise Clause, (NYU Journal of Law & Liberty, Vol. 15 (Forthcoming 2022)).
• Michelle Oberman, Motherhood, Abortion, and the Medicalization of Women’s Poverty, (46 J.L. Med. & Ethics 665 (2018)).
• Meagan Zabadal, Hate Speech and Minority Protection in the United States, (Charles University in Prague Faculty of Law Research Paper No. 2021/III/2).
• Wulf A. Kaal, How Decentralized Autonomous Organizations Optimize Charitable Giving, (December 8, 2021).
• Dana Neacsu, Social Services and Mutual Aid in Times of Covid-19 and Beyond: A Brief Critique, (The Human Rights Brief (American University Washington College of Law) Forthcoming 2022).

From SmartCILP:

• Shajuti Hossain, Lessons from Blackamerican Lawyers' Social Justice Advocacy for Immigrant Muslim Lawyers, [Abstract], 24 U.C. Davis Social Justice Law Review 62-93 (2020).

Congress Passes Uyghur Forced Labor Prevention Act

On Thursday, the U.S. Senate gave final passage to H.R. 6256, The Uyghur Forced Labor Prevention Act (full text). The bill now goes to President Biden for his signature. It calls for development of a strategy:

to ensure that goods mined, produced, or manufactured wholly or in part with forced labor in the People’s Republic of China, including by Uyghurs, Kazakhs, Kyrgyz, Tibetans, and members of other persecuted groups in the People’s Republic of China, and especially in the Xinjiang Uyghur Autonomous Region, are not imported into the United States.

It also calls for development of guidance for importers. National Law Review has more details.

Rashad Hussain Confirmed As International Religious Freedom Ambassador

Yesterday the U.S. Senate, by a vote of 85-5, confirmed Rashad Hussain to be Ambassador at Large for International Religious Freedom. The White House issued this biographical background when Hussain was nominated for the post:

Rashad Hussain is Director for Partnerships and Global Engagement at the National Security Council.... During the Obama Administration, Rashad served as U.S. Special Envoy to the Organization of Islamic Cooperation (OIC), U.S. Special Envoy for Strategic Counterterrorism Communications, and Deputy Associate White House Counsel. In his roles as Envoy, Hussain ... spearheaded efforts on countering antisemitism and protecting religious minorities in Muslim-majority countries.... Rashad received his J.D. from Yale Law School, where he served as an editor of the Yale Law Journal, and Master’s degrees in Public Administration (Kennedy School of Government) and Arabic and Islamic Studies from Harvard University....

More Delays Likely Ahead In Challenge To Texas "Heartbeat" Abortion Law

The procedural complexities in Whole Woman's Health v. Jackson-- the challenge by abortion providers to Texas' "heartbeat" abortion ban-- have increased as Justice Gorsuch yesterday granted challenger's request to issue a certified copy of the judgment immediately rather than in the normal 25-day time frame.  However Gorsuch remanded the case to the 5th Circuit, rather than to the district court. National Law Journal explains the implications of this action:

In its opposition, Texas Solicitor General Judd Stone argued that the justices’ holding that the four licensing officials could be sued “turned on its tentative resolution of a question of Texas Law, and ‘Texas courts and not [the Supreme Court] are the final arbiters of the meaning of state statutory directions.’” A remand to the district court, he argued, would prevent the four officials from asking the appellate court to certify the state law question of the officials’ enforcement authority to the Texas Supreme Court.

If Texas does indeed ask the appellate court to certify that question to the Texas Supreme Court, resolution of the constitutional challenge to the law will be delayed indefinitely.

8th Circuit Hears Oral Arguments In Religious Challenge To Health Care Transgender Anti-Discrimination Rules

On Wednesday, the U.S. 8th Circuit Court of Appeals heard oral arguments in Religious Sisters of Mercy v. Becerra. (Audio of full oral arguments.) In the case, a North Dakota federal district court granted a number of Catholic-affiliated health care and health insurance entities, and several Catholic employers, an injunction barring enforcement against them of anti-discrimination rules that require them to provide (or provide insurance coverage for) transgender transition procedures. Aleteia has an extensive report on the oral arguments.

Tribe Sues Claiming Energy Project Violates Its Religious Rights

The Center for Biological Diversity announced yesterday:

The Fallon Paiute-Shoshone Tribe and Center for Biological Diversity sued the U.S. Bureau of Land Management Wednesday over its approval of the Dixie Meadows geothermal energy project, which could dry up nearby springs and harm an extremely rare amphibian, the Dixie Valley toad.

The complaint (full text) in Fallon Paiute-Shoshone Tribe v. U.S. Department of the Interior, (D NV, filed 12/15/2021), includes a claim that approval of the project violates the Religious Freedom Restoration Act:

188. The Tribe and its members’ sincerely held religious beliefs involve quiet contemplation and reflection at Dixie Meadows Hot Springs, including the surrounding landscape. Tribal members’ compliance with these beliefs is a religious exercise.

189. Defendants’ approval of the Project creates government-imposed coercive pressure on the Tribal members to change or violate their religious beliefs. As detailed in this Complaint, approval of the Project damages the sacred value of the Hot Springs by altering its undisturbed state, and damages Tribal members’ ability to carry out religious practices by creating noise, light, and visual pollution.

The complaint points out:

59. On November 9, 2021—14 days before BLM approved the Project—Interior, the U.S. Department of Agriculture, the U.S. Department of Transportation, the U.S. Department of Energy, the U.S. Environmental Protection Agency, CEQ, the Advisory Council on Historic Preservation, and the Tennessee Valley Authority entered into a memorandum of understanding (“MOU”) concerning the protection of indigenous sacred sites.

60. The MOU recognizes that the spiritual and religious practices and traditions of indigenous peoples are closely tied to the natural world and specific places.

Defense Authorization Act Requires Religious Exemptions From COVID Vaccine Mandate

On Wednesday, the Senate gave final approval to S.1605, the National Defense Authorization Act for Fiscal Year 2022 (full text) by a vote of 88-11. The bill, which was previously passed by the House, now goes to the President for his signature. The bill-- which is over 2000 pages in length-- includes the following provision:

Section 720: The Secretary of Defense shall establish uniform standards under which covered members may be exempted from receiving an otherwise mandated COVID-19 vaccine for administrative, medical, or religious reasons.