U.N. Adopts Resolution Condemning Holocaust Denial

The United Nations General Assembly yesterday adopted by consensus a Resolution (full text) that condemns Holocaust denial or distortion. The Resolution, among other things, calls attention to the role of social media in spreading disinformation and misinformation. A United Nations press release announcing the Resolution points out:

The vote comes on the same day, 80 years ago, during the Wansee Conference, when top Nazi officials discussed and coordinated the genocide of the Jewish people, establishing the system of Nazi death camps.

According to The Hill, Iran "disassociated" from the Resolution.

Faculty Seek To Sever Ties With Their Union Because Of Its Anti-Semitic Positions

Suit was filed last week in a New York federal district court by six faculty members at City University of New York who are seeking to sever all ties with the faculty union known as the Professional Staff Congress. They contend that they are required to use PSC as their exclusive bargaining agent. The complaint (full text) in Goldstein v. Professional Staff Congress/CUNY, (SD NY, files 1/12/2022), alleges in part:

3. All but one of the plaintiffs are Jewish, and several of them resigned from PSC following its adoption in June 2021 of a “Resolution in Support of the Palestinian People” ... that Plaintiffs view as anti-Semitic, anti-Jewish, and anti-Israel. Since the Resolution, PSC has continued to advocate positions and take actions that Plaintiffs believe to be anti-Semitic, anti-Jewish, and anti-Israel, in a manner that harms the Jewish plaintiffs and singles them out for opprobrium, hatred, and harassment based on their religious, ethnic, and/or moral beliefs and identity....

JNS reports on the lawsuit.

Jewish Couple Challenge Denial Of Services By Christian Foster Care Placement Agency

Suit was filed yesterday in a Tennessee state trial court challenging the state's contracting with a Christian child placement agency that refuses to provide foster parent training to those who do not share its Christian beliefs.  A Jewish couple who were denied services sued, along with several other plaintiffs.  A Tennessee statute enacted in 2020 specifically allows faith-based adoption and foster care agencies to refuse to provide services that violate their religious convictions. The complaint (full text) in Rutan-Ram v. Tennessee Department of Children's Services, (TN Chanc. Ct., filed 1/19/2022), alleges that this religious discrimination violates several provisions of the Tennessee state constitution.  Americans United issued a press release announcing the filing of the lawsuit.

5th Circuit Certifies Texas Heartbeat Abortion Case To Texas Supreme Court

In Whole Woman's Health v. Jackson, (5th Cir., Jan. 17, 2022), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, certified to the Texas Supreme Court the question of whether under Texas law, any state officials have authority to take disciplinary action against doctors who violate Texas' Heartbeat Act.  The Act bans abortions if the physician has detected a fetal heartbeat-- usually at around 6 weeks of a pregnancy. The case is on remand from the U.S. Supreme Court (see prior posting), which has previously refused to enjoin enforcement of the Texas law while appeals are under way. (See prior posting.) The ability of Texas state officials to enforce the law in some way was crucial to the Supreme Court's decision that abortion providers could sue the state in a challenge to the law. (See prior posting.)  Judge Higginson dissented from the 5th Circuit's decision to certify the question to the Texas Supreme Court, saying in part:

By granting the defendants’ certification motion, we contravene the Supreme Court’s mandate, effectively telling the Court that its opinion was advisory.

Yahoo News reports on the 5th Circuit's decision.

Certiorari Denied In Virginia Ministerial Residence Tax Exemption Dispute

The U.S. Supreme Court today denied review in Trustees of New Life In Christ Church v. City of Fredericksburg, Virginia,  (certiorari  denied, 1/18/2022), over the dissenting opinion of Justice Gorsuch. In the case, a Virginia state court denied the state's "ministerial residence" tax exemption to a local Presbyterian church because the Youth Ministers living in the home at issue were not ordained clergy and were not listed by the church as one of its primary pastors. (See prior related posting.) The city claimed that this meant they did not qualify as "ministers" under the Presbyterian Church's Book of Church Order, despite the local church's insistence that they do qualify.  Justice Gorsuch, in his opinion dissenting from the denial of certiorari, said in part:

[T]he City continues to insist that a church’s religious rules are “subject to verification” by government officials....

I would grant the petition and summarily reverse. The First Amendment does not permit bureaucrats or judges to “subject” religious beliefs “to verification.”...

This case may be a small one, and one can hope that the error here is so obvious it is unlikely to be repeated anytime soon. But I would correct it....

Courthouse News Service reports on the case.

Court Will Hear Arguments Today In "Christian Flag" Case

The U.S. Supreme Court this morning will hear oral arguments in Shurtleff v. City of Boston. In the case, the U.S. 1st Circuit Court of Appeals, applying the "government speech" doctrine, upheld Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. (See prior posting.) (The flag features a red Latin Cross on a blue background in the upper left portion of an otherwise blank white flag.)  The SCOTUSblog case page has links to amicus briefs, briefs of the parties and other filings in the case. The oral arguments, which begin at 10:00 am EST, will be broadcast live at this link.  When the transcript and recording of the arguments become available later today, I will update this post to link to them.

UPDATE: Here are links to the transcript and audio of today's arguments.

Religious Freedom Day, January 16, 2022

Largely lost in a flood of other developments, yesterday (January 16) was Religious Freedom Day, the anniversary of the adoption of the Virginia Statute for Religious Freedom by the Virginia General Assembly in 1786. President Biden last week issued a Proclamation (full text) officially marking the day.

Virginia Governor Creates Commission To Combat Antisemitism

Virginia's newly-inaugurated Governor Glenn Youngkin has issued an Executive Order (full text) creating a Commission to Combat Antisemitism. According to the Executive Order:

The purpose of this Commission is to study antisemitism in the Commonwealth, propose actions to combat antisemitism and reduce the number of antisemitic incidents, as well as compile materials and provide assistance to Virginia’s public school system and state institutions of higher education in relation to antisemitism and its connection to the Holocaust.

The Commission shall make recommendations to the Governor and General Assembly with the goal of identifying ways to reverse increasing antisemitic incidents in the Commonwealth.

According to a press release from the Governor's office, the Order was one of nine Executive Orders and two Executive Actions taken by Youngkin on Saturday, the day on which he was inaugurated.

California Settles Suit Over Aztec Prayer In Ethnic Studies Curriculum

A Settlement Agreement (full text) was reached last week (Jan. 13) with the California Department of Education in a suit that had been filed (see prior posting) challenging a prayer to Aztec gods that was in included in the state's Ethnic Studies Model Curriculum. According to an announcement of the agreement by the Thomas More Society:

As a result of the settlement, that the California Department of Education will promptly remove prayers (also labeled as chants or affirmations) from the Aztec and Yoruba (or Ashe) religions from the state-approved curriculum and will issue a public notice of such to all California school districts, charter schools and county offices of education. The department, along with the State Board of Education, also agreed not to encourage the use of the two challenged chants in California public schools.

NY City Council Member Loses Claim This His Expulsion Was Because Of Hostility To His Christian Anti-LGBT Views

In King v. City of New York, (SD NY, Jan. 14, 2022), a New York federal district court rejected a group of 1st and 14th Amendment, as well as state law, challenges by former New York City Council member Andy King to his expulsion from City Council.  He was removed from Council because of alleged ethical misconduct. However King claims that the true motivation of the Council members who voted to expel him was their dissatisfaction with his routine opposition to pro-LGBT issues stemming from his Christian beliefs that sex between members of the same sex is a sin. The court rejected both his free speech and free exercise claims.  Discussing King's free exercise claims, the court said in part:

In support of his Free Exercise claim, King relies on the same factual allegations as those that buttress his Free Speech claim-- namely, Defendants' hostility toward his political views on LGBT issues. But these allegations do not raise the plausible inference that Defendants acted out of hostility against King on the basis of his Christian faith.

Recent Articles of Interest

 From SSRN:

• Cyra Akila Choudhury, Racecraft and Idntity in the Emergence of Islam as Race, (January 6, 2022).
• Vivencio Ballano, Law, Morality, and Catholic Social Teaching on Family Living Wage: Analyzing the Adequacy and Morality of the Minimum Wage in the Philippines, (Cogent Social Sciences, 8:1 (2022).
• Noah Kane, Treat Thy Neighbor as Thyself? Equal Protection and the Scope of RLUIPA's Equal Terms Clause, (Cardozo Law Review, Vol. 43, No. 2, 2022).
• Shlomo Pill, Freedom to Sin: A Jewish Jurisprudence of Religious Free Exercise, (Regent University Law Review, Vol. 34, No. 1, 2021-2022).
• David Abraham, Group Rights and Individual Minority Rights in Immigrant Societies, then and Now, (November 15, 2021).
• Justin Aimonetti, Derivative Immunity as Savior from State Actor Status, (34 Regent University Law Review 107 (2021)).

From SmartCILP:

• Matthew J. Stanford, Practical Piety: Divining Religion's Role in Reproductive Policymaking, [Abstract], 39 Boston University International Law Journal 1-40 (2021)).
• Symposium: Jewish Law in Comparative Context, Touro Law Review, Vol. 36, Issue 4 (2021).
• Adena Berkowitz, My Body, My Choice: Biblical, Rabbinic, and Contemporary Halakhic Responses to Abortion, 37 Touro Law Review 1133 (2021).
• Yehiel Kaplan, Mercy in American Law: The Promise of the Adoption of the Outlook of Jewish Law, 37 Touro Law Review 1193 (2021).

Split En Banc 9th Circuit Denies Review of Refusal To Enjoin School Vaccine Mandate that Lacks Religious Exemption

The U.S. 9th Circuit Court of Appeals has denied en banc  reconsideration of the refusal to enjoin, pending appeal, a school district's COVID vaccine mandate that does not provide for religious exemptions. In Doe v. San Diego Unified School District, (9th Cir., Jan. 14, 2022), the court denied en banc review of the panel's decision, with various judges filing opinions dissenting from, or concurring with, the denial. Judge Bumatay, in a 21-page opinion joined by six other judges (and concurred in by one judge with senior status), dissented, saying in part:

Simply put, the District can’t have it both ways by allowing secular exemptions but prohibiting religious ones. If the District offers any secular vaccine exemption with a similar risk profile to a religious exemption, it must satisfy strict scrutiny to exclude a religious exemption. The Constitution forbids the District from picking and choosing its preferred secular exemptions while disfavoring religious exemptions. And this remains true in times of crisis.

Judges Berzon and Bennett filed an opinion concurring in the denial of reconsideration which offered rebuttals to each point made by Judge Bumatay in his dissent. Judge Bress, joined by Judge Bade, and Judge Forrest filed a briefer dissenting opinions as well.

Ecclesiastical Abstention Doctrine Bars Adjudication Of Some Claims In Dispute Between Church Factions

In In re Thomas, (TX App., Jan.14, 2022), Jan. 14, 2022), a Texas state appellate court ruled on the extent to which the ecclesiastical abstention doctrine bars various claims in a dispute between two factions in a Baptist church over who should be its pastor and which faction controls its large bank account. The court held that the ecclesiastical abstention doctrine bars civil courts from ruling on the deacons' authority to terminate the church's pastor and on whether one group is obligated to relinquish control over the church's financial records and bank account. However, the ecclesiastical abstention doctrine did not necessarily bar adjudication of claims for breach of fiduciary duty, conversion of church funds and access to the church's books, records and bank statements.

Supreme Court Grants Review In Case Of Football Coach's Praying At 50-Yard Line

Yesterday the U.S. Supreme Court granted certiorari in Kennedy v. Bremerton School District, (Docket No. 21-418, cert. granted, 1/14/2022). (Order List.)  In the widely followed case, the U.S. 9th Circuit Court of Appeals upheld a high school's actions against a football coach who insisted on prominently praying at the 50-yard line immediately after football games. The coach was placed on paid administrative leave and given negative performance reviews. He did not reapply to coach the following year. A divided 9th Circuit denied en banc review. (See prior posting.) SCOTUS blog reports on the Supreme Court's grant of review. [Corrected. An earlier version of this post inaccurately stated that the coach was "fired".]

Air Force Officer Sues After Accommodation For Religious Objection To COVID Vaccine Is Denied

Suit was filed last week in a Georgia federal district court by a female Air Force officer who has served in the military for 25 years and who was forced into retirement when she refused for religious reasons to take any of the current COVID vaccines.  Her request for a religious accommodation was denied.  The complaint (full text) in Air Force Officer v. Austin, (MD GA, filed 1/6/2022), alleges in part:

52. As a Christian, Plaintiff believes that abortion is a grave evil and contrary to her faith.

53. Plaintiff sincerely believes that receiving a vaccine that was derived from or tested on aborted fetal tissue in its development would violate her conscience and is contrary to her faith....

55. In addition, in accordance with her faith, Plaintiff believes that her “body is the temple of the Holy Spirit” (1 Cor. 6:19-20), and that injection with a novel substance of unknown long-term effects would violate this belief.

Plaintiff claims that the Air Force's actions violate RFRA and the 1st Amendment. Thomas More Society issued a press release announcing the filing of the lawsuit. 

Challenge to Louisiana COVID Worship Restrictions Dismissed As Moot

In Spell v. Edwards, (MD LA, Jan. 12, 2022), a Louisiana federal district court, on remand from the 5th Circuit, again dismissed a challenge to a now expired COVID Order limiting the size of religious gatherings. The court explained:

On July 6, 2021, the U.S. Court of Appeals for the Fifth Circuit vacated this Court’s November 10 dismissal order, and remanded with instructions to reconsider Plaintiffs’ First Amendment Free Exercise Clause claim in light of new guidance from the U.S. Supreme Court, specifically, Roman Catholic Diocese of Brooklyn v. Cuomo, ... South Bay United Pentecostal Church v. Newsom, ... and Tandon v. Newsom....

Now, with the benefit of the Supreme Court’s guidance, the Court reaches the same result as before: Plaintiffs’ consolidated actions will, again, be dismissed. In short, the Supreme Court’s most recent jurisprudence cannot save Plaintiffs’ claims for injunctive relief because the challenged restrictions have expired on their own terms and there is no indication whatsoever that crowd-size limits on indoor assembly will be reinstated. Thus, an injunction is a moot point. Further, Plaintiffs’ demand for damages fails because there is not now, and never has been, a “clearly established” right to unrestricted religious assembly.... Thus, Defendants are shielded from liability by qualified immunity.

RNS reports on the decision.

California Sues Health Care Sharing Ministry For Fraud

California's Attorney General announced yesterday that the state has filed a false statements and fraudulent business practices civil lawsuit against a company purporting to operate as a Health Care Sharing Ministry. The complaint (full text) in State of California v. Aliera Companies, Inc., (CA Super., filed 1/12/2022), alleges in part:

Aliera created and marketed its health insurance products as “health care sharing ministry” (HCSM) plans. HCSMs are nonprofit corporations historically comprised of members of a particular religious community, who contribute money to a shared pool with the understanding that the money would pay for catastrophic or surprise healthcare costs pursuant to the members’ shared religious tenets....

... Aliera ...  advertised that members’ monthly payments would go towards the healthcare costs of other members. To the contrary, Aliera retained as much as 84% of every member payment, leaving around 16 cents of every dollar for member expenses. Aliera arbitrarily rejected member requests for payment of healthcare costs in order to continue retaining these member payments for itself and the individual defendants.

Fourteen states and the District of Columbia, have initiated actions against Aliera for its sale and operation of its purported HCSM plans. This includes the California Department of Insurance, which issued a cease and desist order on or about March 8, 2020.

7th Circuit: Church's Suit Against Rescinded COVID Order Is Moot

In Elim Romanian Pentecostal Church v. Pritzker, (7th Cir., Jan. 11, 2022), the U.S. 7th Circuit Court of Appeals affirmed an Illinois federal district court's denial of an injunction against a now-rescinded COVID order by the Governor of Illinois limiting the number of people who could attend a religious service. The district court based its decision on mootness grounds, even though the 7th Circuit had previously held the case was not moot. The 7th Circuit now said however:

More than 19 months have passed since they were last subject to an attendance limit, and the Governor has not suggested that another is likely.  A legal conclusion that a rescinded order violated the Constitution would not entitle anyone to an injunction....

Connecticut Elimination Of Religious Exemption From School Vaccination Requirement Is Upheld

 In We the Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (D CT, Jan. 11, 2022), a Connecticut federal district court upheld a Connecticut statute that eliminates the religious exemption from the state requirement for vaccinations for school children. Medical exemptions remain in the statute, and students with previous religious exemptions are allowed to retain them. The court summarized its conclusions in part as follows:

Count One, alleging a violation of the Free Exercise Clause, is dismissed because mandatory vaccination as a condition to school enrollment does not violate the Free Exercise Clause. However, even if P.A. 21-6 was not foreclosed by Supreme Court and Second Circuit precedent, it is constitutional because it is a neutral law of general applicability which is rationally related to a legitimate state purpose.

CT Insider reports on the decision.

6th Circuit Tells District Court To Reconsider Injunction Denial Against School Mask Order

In Resurrection School v. Hertel, (6th Cir., Jan, 12, 2022), the U.S. 6th Circuit Court of Appeals vacated a Michigan federal district court's denial of a preliminary injunction against Ingham County, Michigan's COVID order requiring elementary school students, including those in religious schools, to wear masks in the classroom. It sent the case back to the district court for it to reconsider  the question of whether parents of religious school students are entitled to an injunction pending appeal. The court based its order on the fact that the district court relied on a 6th Circuit decision that was subsequently vacated by an en banc order.