Tai Chi Class Sites Are Not Places of Worship For Tax Exemption Law In Ontario

In Fung Loy Kok Institute of Taoism v. Municipal Property Assessment Corporation, (ON Super. Ct., Jan. 6, 2022), an Ontario (Canada) appellate court held that a Taoist organization was not entitled to a municipal property tax exemption for its satellite sites at which Tai Chi classes are held. The court concluded that these sites are not "places of worship" as that term is used in Ontario's Assessment Act. The court said in part:

Use of a property as a place of worship is different than other uses to which religious organizations can put property.  Evangelization efforts for example....

MPAC argues that the application judge accepted that religious expression and activities occur at the Satellite Sites.  However, in order to create an exemption for those properties, those activities must constitute acts of worship, a more narrow form of activity than the simple act of conducting a practice that has religious connotation.

CTV News reports on the decision.

"Spiritual Distress" From Employer's Vaccine Mandate Is Not "Irreparable Injury"

In Romano v. Blue Cross Blue Shield of Michigan, (ED MI, Jan. 3, 2022), a Michigan federal district court denied a preliminary injunction to an employee who was to be fired because he refused to comply with his employer's COVID vaccine mandate.  Plaintiff's refusal was based on religious objections and he claimed the employer's denial of his request for a religious exemption violated Title VII, the Michigan Elliot-Larsen Civil Rights Act, the Free Exercise Clause and the Michigan Constitution. However, the court concluded that plaintiff did not meet the "irreparable injury" requirement necessary to support an injunction.  The court said in part:

Plaintiff claimed that his damages are irreparable because he will be fired, lose prestige and seniority, have his reputation marred, and suffer "spiritual distress."... But none of the alleged harms are irreparable....

Although the Court is sympathetic to religious persons who must confront the "impossible choice," Plaintiff never developed a sound legal argument for why the injury attributable to "impossible choice" is irreparable.... Plaintiff instead cited cases that enjoined government COVID19 vaccine mandates—not private COVID-19 vaccine mandates.... As Judge Pittman noted in a similar case, although "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," the First Amendment does not apply to private companies like Defendant....

Going forward, other plaintiffs may have an avenue for injunctive relief in Title VII COVID-19 vaccine mandate cases based on stronger legal arguments and facts.... Yet it is not the Court's role to advance legal and factual arguments for litigants; the Court resolves disputes based on the arguments that litigants assert.

National Law Review reports on the decision.

Recent Articles of Interest

From SSRN:

• Lawrence G. Sager & Nelson Tebbe, Discriminatory Permissions and Structural Injustice, (Minnesota Law Review, Vol. 106, p. 803, 2021).
• Eric R. Claeys, Dobbs and the Holdings of Roe and Casey,    (Georgetown Journal of Law & Public Policy, Vol. 20, No. 1, 2022, Forthcoming).
• Stephan Sonnenberg, Adrian Von Bernstorff & Thinley Namgay, Finding the Right Path: Towards a Buddhist Sense of Corporate Ethics in Bhutan, (Seoul National University Asia Center - Asia Review Vol. 11(3) (2021)).

From SmartCILP:

• Yael Efron, Michelle LeBaron, Maged Senbel & Mohammed Wattad, Like a Prayer? Applying Conflicts with Religious Dimensions Theory to the "Muezzin Law" Conflict, 63 Washington University Journal of Law & Policy 119-142 (2020).
• Kevin W. Connell, The Bad News of Good News Club: Obliterating the Wall between Church & State, 28 William & Mary Bill of Rights Journal 569-586 (2020).

Rhode Island Vaccine Mandate For Health Care Workers Upheld

In Dr. T v. Alexander-Scott, (D RI, Jan. 7, 2022), a Rhode Island federal district court refused to issue a preliminary injunction in a free exercise challenge to a Rhode Island Department of Health regulation requiring all health care workers to be vaccinated against COVID.  The Regulation contains a narrow medical exemption, but no religious exemption. The court (which had previously denied a temporary restraining order) concluded that the regulation is both neutral and generally applicable. The court said in part:

The Regulation’s medical exemption serves the state’s principal purpose of protecting public health. A failure to exempt the limited number of individuals whose health a vaccine may jeopardize would be counterproductive to that goal to the extent of illogicality. There is no suggestion of a discriminatory bias against religion.

The court also concluded that since the regulation is silent as to religious exemptions, it does not preclude compliance with the reasonable accommodation requirements of Title VII of the 1964 Civil Rights Act.

Ministerial Exception Does Not Apply To Liberty University Art Teacher

In Palmer v. Liberty University, Inc., (WD VA, Dec. 1, 2021), a Virginia federal district court held that the ministerial exception doctrine does not apply to prevent an age discrimination suit by an art professor at Liberty University whose contract was not renewed. Concluding that the teacher is not a "minister" for purposes of the ministerial exception, the court said in part:

Palmer's educational background is largely secular.... At the core of Palmer's daily responsibilities was teaching art classes on subjects like drawing and sculpture. For a brief time in the mid-1990s, she also taught humanities courses.... She concedes that she began each class with a short prayer or psalm reading, but she did not otherwise integrate Christian lessons into her classes....  Occasionally, her art lessons would reflect Biblical stories or lessons...., but this was not, apparently, the norm....

Outside of class, Palmer did not significantly participate in her students' spiritual lives. She did not bring her students to church services.... She occasionally counseled them on personal matters outside the immediate scope of her teaching duties, and would have periodic conversations about spirituality with students, but she never led them in Bible study, guided them in scripture, or gave them sermons.

European Court Dismisses Challenge To Baker's Refusal To Supply Cake With Pro-Gay Marriage Inscription

In a much-awaited decision, the European Court of Human Rights managed to avoid dealing directly with the central question in a case pitting LGBTQ rights against religious freedom rights of owners of commercial establishments. In Lee v. United Kingdom, (ECHR, Jan. 6, 2022), Gareth Lee, a gay man, ordered a cake from a bakery in Belfast. He asked for the cake to be decorated with the slogan "Support Gay Marriage."  He planned to take it to a private event being held to mark the end of Northern Ireland Anti-Homophobia and Transphobia Week and being held to gather political support for pending legislation to legalize same-sex marriage. The bakery, Ashers Baking Company, rejected the order because the company owners' Christian religious beliefs were opposed to same-sex marriage.

Lee filed suit in a county court in Northern Ireland claiming a violation of Northern Ireland's Equality Act and its Fair Employment and Treatment Order, which, among other things, bar sexual orientation discrimination in the provision of goods or services and discrimination on the basis of religious belief or political opinion. The case wound its way up to the U.K.'s Supreme Court which concluded that there was no sexual orientation discrimination because the bakery would have refused to supply the cake with that inscription to anyone. It also rejected the political opinion discrimination claim.

Lee appealed to the European Court of Human Rights. In yesterday's decision, the court dismissed the appeal, finding that Lee "did not invoke his Convention rights expressly at any point in the domestic proceedings.  Instead he formulated his claim by reference to [Northern Ireland's domestic law]." By failing to assert his rights under the European Convention in the courts of Northern Ireland, Lee failed to exhaust his domestic remedies.  The court said in part:

75.  ... As the Supreme Court of the United States pointed out in Masterpiece Cakeshop Ltd, these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.... This is particularly so in Northern Ireland, where there is a large and strong faith community, where the LGBTIQ community has endured a history of considerable discrimination and intimidation, and where conflict between the rights of these two communities has long been a feature of public debate....

Reuters reports on the decision. [Thanks to several readers for alerting me to the decision.]

Biden Resubmits Lipstadt's Nomination As Special Envoy to Monitor Antisemitism

With Congress beginning a new session, the nominations which the President sent to the Senate last year need to be resubmitted if the Senate has failed to act on them. On Tuesday, President Biden resubmitted a large number of nominations. Among them was the nomination of Deborah Lipstadt to be Special Envoy to Monitor and Combat Anti-Semitism, with the rank of Ambassador. Lipstadt's nomination was originally sent to the Senate last July. (See prior posting.) According to a CNN report, Senate Democrats accuse Republicans of stalling the nomination.  Republicans on the Senate Foreign Relations Committee have refused so far to agree to hold hearings on her nomination. This is variously attributed to a broad effort to stall President Biden's nominees, or more narrowly to concerns by Foreign Relations Committee member Ron Johnson about tweets from Lipstadt last March critical of him. Lipstadt is a professor of Modern Jewish History and Holocaust Studies at Emory University.

Poway Synagogue Rabbi Sentenced To 14 Months In Custody For Fraud

The U.S. Attorney's Office for the Southern District of California announced that yesterday a California federal district judge sentenced Rabbi Yisroel Goldstein -- rabbi of Chabad of Poway during a much-publicized shooting in 2019-- to 14 months in custody for his part in a multi-million dollar fraud scheme.  Goldstein plead guilty to fraud charges in 2019. (See prior posting.) He was also ordered to pay $2.8 million in restitution.  According to the U.S. Attorney's Office:

[W]hile Rabbi Goldstein was director of the Poway synagogue, he received at least $6.2 million in phony contributions to the Chabad and affiliated charities and secretly refunded up to 90 percent of the donations to the “donors.” After Rabbi Goldstein provided these donors with fake receipts, they illegally claimed huge tax deductions for these nonexistent donations, and the rabbi kept about 10 percent ... for himself....

Rabbi Goldstein also admitted that he defrauded three different Fortune 500 companies by tricking them into matching supposed charitable donations of their employees....

Rabbi Goldstein ... also helped his brother ... conceal approximately $700,000 in income by allowing him to use Chabad bank accounts to deposit his income, thereby hiding it from the IRS.  As his cut, Rabbi Goldstein kept 10 percent.... 

... Goldstein and another defendant ... used false information and fabricated invoices and other records to pretend to be eligible for emergency funds, grants or donations, and private loans [from FEMA and the state of California].

According to The Forward's report on the sentencing, prosecutors had recommended a much more lenient sentence-- 8 months of home confinement and 4 years probation.

Public School Districts Challenge Expansion Of Ohio's Voucher Program

Suit was filed yesterday in an Ohio state trial court by five school districts and an organization comprised of dozens more, as well as by parents of school students, challenging the Ohio legislature's recent expansion of the EdChoice voucher program. The complaint (full text) in Columbus City School District v. State of Ohio, (OH Com. Pl., filed 1/4/2022), alleges that the expanded program violates Article VI, Sec. 2 of the Ohio Constitution which calls for creation of "a thorough and efficient system of common schools throughout the State" and provides that "no religious or other sect, or sects, shall ever have any exclusive rights to, or control of, any part of the school funds of this state." The complaint alleges in part:

148. The General Assembly’s continuing efforts to expand the EdChoice Program have been undertaken with full knowledge that these state funds would overwhelmingly benefit parochial schools, at the expense of Ohio’s public school students.

149. These private sectarian institutions will receive exclusive and unfettered control of approximately $250 million of Ohio’s school funding in Fiscal Year 2022....

150. Diverting almost a quarter of a billion dollars of taxpayer funding to the exclusive control of parochial schools violates the framers’ intent in retaining the full text of Article VI, Section 2 to ensure that public education funds would not be used to support religious sects, including parochial schools.

Columbus Dispatch reports on the lawsuit.

Consent Decree Entered In Suit Claiming Religious Discrimination In Action Against Mosque Construction

 A consent decree (full text) was entered yesterday in a Mississippi federal district court in Abraham House of God and Cemetery, Inc. v. City of Horn Lake, (ND MS, Jan. 3, 2022). The suit alleged that the City of Horn Lake denied approval of the site plan for a proposed mosque because of religious animus. (See prior posting.) The consent decree requires the city to approve the site plan within two weeks, and to act promptly on future applications for permits relating to construction of the mosque.  ACLU issued a press release announcing the filing of the consent decree.

11th Circuit: Punitive Damages For Non-Physical Injuries Are Available To Inmate Under RLUIPA

In Mays v. Joseph, (11th Cir., Jan. 3, 2022), the U.S. 11th Circuit Court of Appeals held that a prisoner may recover punitive damages for violation of his religious exercise rights under RLUIPA in a suit against a prison warden in the warden's individual capacity.  In the case, plaintiff claimed that the Georgia Department of Corrections' grooming policy that barred him from growing his hair or a goatee longer than three inches violated his rights to express his religion. The court held that while an incarcerated plaintiff may not recover compensatory damages for mental or emotional injuries absent physical injury, he can recover punitive damages and nominal damages. Here plaintiff had waived his nominal damage claim.

Maneuvering Continues In Challenge To Texas Heartbeat Abortion Law

Procedural maneuvering continues in the challenge by abortion providers to the Texas "heartbeat" abortion law. The courts have kept the Texas law in effect while the maneuvering goes on, with Texas seeking to delay proceedings as long as possible and plaintiff abortion providers seeking to speed them forward.  

The U.S. Supreme Court held that the law could be challenged despite the state's attempt to draft the law to prevent anyone from being able to do so because there were still some state officials involved in enforcing the law. The Supreme Court then remanded the case to the 5th Circuit (which had previously allowed the law to remain in effect), instead of to the district court (which had previously enjoined the law while appeals were pending). In the 5th Circuit, Texas is seeking to have the question of whether state officials are in fact still involved in enforcing the law certified to the Texas Supreme Court for resolution, while the abortion providers challenging the law contend that the U.S. Supreme Court has already decided that issue. The 5th Circuit has scheduled oral arguments for Friday on the appropriateness of certifying the case, as well as on other jurisdictional questions.

 So yesterday, in In re Whole Woman's Health, (U.S. Sup. Ct., filed 1/3/2022), the plaintiffs in the case filed a petition (full text) with the U.S. Supreme Court asking it to issue a writ of mandamus directing the Court of Appeals to remand the case immediately to the district court. Texas Tribune reports on these developments.

Navy Enjoined From Applying Vaccine Mandate To Plaintiff Religious Objectors

 In U.S. Navy SEALs 1-26 v. Biden, (ND TX, Jan. 3, 2022), a Texas federal district court issued a preliminary injunction barring the U.S. Navy from imposing its COVID-19 vaccine mandate on 35 Navy service members who are plaintiffs in the case.  The court held that plaintiffs need not exhaust their military remedies before suing because, while the Navy's policy provides for religious exemptions, the denial of each exemption request is predetermined.  Also, even if a religious exemption is granted, the service member is then permanently barred from deployment.

The court concluded that applying the vaccine mandate to plaintiffs violates the Religious Freedom Restoration Act, saying in part:

Because the Plaintiffs have demonstrated a substantial burden, Defendants must show that this burden furthers a compelling interest using the least restrictive means....

Even if Defendants have a broad compelling interest in widespread vaccination of its force, they have achieved this goal without the participation of the thirty-five Plaintiffs here. At least 99.4% of all active-duty Navy servicemembers have been vaccinated.... The remaining 0.6% is unlikely to undermine the Navy’s efforts.... With a 99.4% vaccination rate, the Navy’s herd immunity is at an all-time high. COVID-19 treatments are becoming increasingly effective at reducing hospitalization and death....

Moreover, the Navy is willing to grant exemptions for non-religious reasons. Its mandate includes carveouts for those participating in clinical trials and those with medical contraindications and allergies to vaccines.... Because these categories of exempt servicemembers are still deployable, a clinical trial participant who receives a placebo may find himself ill in the high-stakes situation that Defendants fear.... As a result, the mandate is underinclusive.

The court also concluded that applying the mandate to plaintiffs violates the 1st Amendment's free exercise clause because the mandate is not neutral and generally applicable.

First Liberty issued a press release announcing the decision.

Australian Court Holds Diocese Vicariously Liable For Abuse By Priest

In the Australian state of Victoria, a trial court has held a Catholic Diocese vicariously liable for sexual abuse of a five-year old in 1971 by Bryan Coffee, an assistant parish priest. In DP (a pseudonym) v. Bird, (Sup. Ct. Victoria, Dec. 22, 2021), the court, in a very lengthy opinion, said in part:

278 By reason of —(a) the close nature of the relationship between the Bishop, the Diocese and the Catholic community in Port Fairy; (b) the Diocese’s general control over Coffey’s role and duties within St Patrick’s parish; (c) Coffey’s pastoral role in the Port Fairy Catholic community; and (d) the relationship between DP, his family, Coffey and the Diocese, which was one of intimacy and imported trust in the authority of Christ’s representative, personified by Coffey — the Diocese is vicariously liable for his conduct....

280 I am also satisfied that Coffey’s role as a priest under the direction of the Diocese placed him in a position of power and intimacy vis-à-vis DP that enabled him to take advantage of DP when alone — just as he did with other boys. This position significantly increased the risk of harm to DP....

However the court refused to hold the Diocese liable on a direct negligence claim, concluding that Coffee's actions were not a foreseeable risk.  Law and Religion Australia and ABC Australia News reports at length on the decision, saying that this is the first time that an Australian court has found a diocese vicariously liable for actions of a priest.  [Thanks to Law & Religion UK for the lead.]

Recent Articles of Interest

From SSRN:

• John Witte, 'Foreword,' to Norman Doe, ed., Church Laws and Ecumenism: A New Path for Christian Unity, (London: Routledge, 2020, vii-ix).
• John Witte, “Foreword,” to Robert F. Cochran, Jr., and Michael P. Moreland, eds., Christianity and Private Law (London: Routledge, 2021, viii-x).
• John Witte, The Right of Freedom of Religion: An Historical Perspective from the West, (in Silvio Ferrari, et al., eds., Routledge Handbook on Freedom of Religion and Belief (London: Routledge, 2020, 9-24).
• John Witte & Andrea Pin, Faith in Strasbourg and Luxembourg: The Fresh Rise of Religious Freedom Litigation in the Pan-European Courts , (Emory Law Journal 70 (2021): 587-661).
• John Witte, 'Introduction,' to John Witte, Jr., et al., eds., The Impact of the Law on Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies,  (Leipzig: Evangelische Verlagsanstalt GmbH, 2021), 15-30).
• John Witte, 'Foreword,' to Paul Valliere and Randall Poole, eds., Law and the Christian Tradition in Modern Russia, (London: Routledge, 2021, ix-xi).
• John Hasnas, Free Speech on Campus: Countering the Climate of Fear, (Georgetown Journal of Law & Public Policy, Forthcoming).
• David A. Kaye, The Troubled World of Hate Speech Regulation,  (Journal of Human Rights, 2022, forthcoming).
• Teresa D. Harrison & Jeremy P. Thornton, Further Evidence on Competition in Nonprofit Donor Market, (Nonprofit and Voluntary Sector Quarterly 2021).

Happy New Year 2022!

Dear Religion Clause Readers:

Happy New Year 2022! I hope that you continue to find Religion Clause a valuable source of information on the intersection of law, religion and public policy.  This past year, we saw a continuation of the trend to convert cultural and political disagreements with legislative or executive decisions into religious freedom or church-state claims that can be asserted before the courts.  Faced with this deluge, the Supreme Court's increased use of its "shadow docket" to decide important free exercise cases without full briefing and argument has become the subject of controversy.

In reporting on these and other developments, I have attempted to retain Religion Clause's objectivity and its policy of linking to extensive primary source material. I hope that the blog continues to have a reputation for reliability at a time when the objectivity of social media is increasingly called into question.  

Religion Clause is a niche blog whose readership includes lawyers at advocacy organizations, law school faculty, journalists, clergy, governmental agency personnel, students and others working professionally dealing with church-state relations and religious liberty concerns in the U.S. and around the world. I attempt to avoid excessive technical matters in my posts in order to make the blog accessible as well to non-lawyers with a general interest in the area.

2022 promises to be another year of interesting and important developments. I hope you will continue to follow them on Religion Clause.  In addition to accessing the blog directly, links to Religion Clause postings are available on Twitter, Facebook and through e-mail alerts from services listed near the bottom of the blog's sidebar.

Thanks again to all of you who are loyal readers-- both those who have followed Religion Clause for years and those of you who have only recently discovered the blog.  A special thanks to readers who have quickly sent me leads on recent developments, and to those who have alerted me to mistakes. I encourage you to recommend Religion Clause to colleagues, students and friends who might find it of interest.

Best wishes as we all face the challenges that 2022 brings to us.  I hope that we are able to deal with these challenges by respecting divergent viewpoints and supporting the foundational institutions of American democracy.

Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions. Best wishes for 2022.

Howard Friedman

Hebrew Israelite Student Seeks $4M In Damages For Coach's Punishment That Violated His Religious Dietary Requirements

Suit was filed yesterday in an Ohio federal district court by a Hebrew-Israelite high school football team member who was told to eat a pepperoni pizza as discipline for missing a mandatory weight class. When the student objected that eating pork was a violation of his religious beliefs, he was allowed to remove the pepperoni, but still was forced to eat the pizza with pork residue on it. The complaint (full text) in K.W. (Junior) v. Canton City School District, (ND OH, filed 12/29/2021) alleges 1st and 14th Amendment, as well as other, claims saying in part:

All Defendants were fully aware of Junior’s religious beliefs; however, Defendants established practices and implemented actions that were antisemitic and/or in direct violation of Plaintiffs’sincere religious beliefs. therefore violating 42 U.S.C. § 1983.

WHEREFORE, Plaintiffs demand compensatory damages of $3,000,000.00 and punitive damages of $1,000,000.00.... [as well as] injunctive relief....

Other dollar amounts are sought for other causes of action set out in the complaint.  WKYC News reports on the lawsuit.

Church Dispute Dismissed On Ecclesiastical Abstention Grounds

In Iglesia Pentecostal Filadelfia, Inc. v. Rodriguez, (TX App., Dec. 29, 2021), a Texas state appellate court affirmed a trial court's dismissal of an internal church dispute on ecclesiastical abstention grounds. Jose  Rodriguez, Jr. took over as pastor of the church when his mother passed away. Plaintiffs sued on behalf of the church challenging Rodriguez's actions in that role. The court said in part:

Here, the trial court found that neither side complied with the Church’s organizational and governing documents, including the Bylaws, a decision we find support for in the record .... Therefore, we find that a determination of the Church’s claims at issue would impermissibly embroil the trial court in a religious controversary to include choosing its church leaders....

Further, the Church’s second declaration is clearly a matter of church authority or governance as opposed to substantively and effectively a property dispute as it asks the trial court to declare that “[Jose Jr.] has no right or authority to act on the behalf of [the Church] and its congregation.”

Moreover, to develop the Church’s conversion claim would impermissibly force the trial court to decide the Church’s corporate governance because to do so would require it to determine which board to inquire of for the reason behind the alleged unlawful use of funds.

India Refuses To Allow Mother Theresa's Charity To Receive Further Funds From Abroad

The Guardian reports that on Christmas Day, India's Ministry of Home Affairs refused to renew the license allowing Missionaries of Charity to continue to receive financial support from abroad.  Missionaries of Charity, which runs a network of charities across India, was founded by Mother Theresa in 1950. Accusations, denied by the Charity, are that it lures poor young Hindu women into becoming Christians by forcing them to read the Bible, recite Christian prayers and wear a cross around their neck. Hardline Hindus say that the Charity is intentionally hurting the religious sentiments of Hindus.

Muslim Woman Sues Gun Range For Religious Discrimination

A religious discrimination suit was filed yesterday in a Missouri federal district court against a "faith, family and freedom" based indoor gun range that refuses admission to Muslim women wearing hijabs. The complaint (full text) in Barakat v. Brown, (WD MO, filed 12/28/2021) alleges that this policy of the Frontier Justice gun range, owned by a Christian family, violates the public accommodation anti-discrimination provisions in Title II of the 1964 Civil Rights Act.  CAIR issued a press release announcing the filing of the lawsuit.