Lipstadt Finally Gets Hearing On Her Nomination As Anti-Semitism Monitor

Yesterday, the U.S. Senate Foreign Relations Committee held a hearing on the nomination of Emory Prof. Deborah Lipstadt to be Special Envoy to Monitor and Combat Anti-Semitism, with the rank of Ambassador.  (Video of full hearing.) (Transcript of Prof. Lipstadt's prepared statement.) Lipstadt is a widely-known scholar of the Holocaust. A hearing on Lipstadt's nomination has been delayed for months by Republicans, particularly Foreign Relations Committee member Sen. Ron Johnson, because of a Tweet last March by Lipstadt characterizing a statement by Johnson as white supremacy.  Politico reports on this aspect of the Lipstadt hearing. Washington Post reports more generally on the hearing.

Suit Challenging Jehovah's Witness Beliefs Dismissed

In Gasparoff v. Watch Tower Bible & Tract Society of Pennsylvania, (D AZ, Feb. 4, 2022), an Arizona federal district court dismissed a pro se complaint which attacked the beliefs of Jehovah's Witnesses regarding blood transfusions and asked the court "to determine if it is constitutional to use Amendment I in order to propagandize suicidal ideology under the guise of peaceful religious practice." The court said in part:

Plaintiff has no viable legal grounds to advance this case.... Federal Courts can not be arbiters of scriptural interpretation; controversies over religious principles fall outside this Court’s jurisdiction....  Furthermore, the Amended Complaint reflects that Plaintiff has no personal stake in this action, and therefore has no standing to litigate this case.

Arrest Of Parishioners For Wrongful Eviction Did Not Violate RLUIPA

In Colorado Springs Fellowship Church v. City of Colorado Springs,  (D CO, Feb. 4, 2022), a Colorado federal district court dismissed  RLUIPA as well as 1st and 14th Amendment claims against the city and various law enforcement officials brought by a church and eight of its parishioners.  The church leased an apartment that was to be for the use of members who were in need of housing but could not afford to rent a habitable dwelling.  Amisha and Nicholas Gainer were identified as occupants of the Apartment in the lease. The church found that the Gainers had been acting in violation of the lease. Instead of following a formal eviction route, church members merely showed up at the apartment to move the Gainers out.  The Gainers threatened the parishioners with a gun and baseball bat.  The parishioners then retreated and called the police. When the police arrived, they arrested the parishioners, who now are suing. Dismissing plaintiffs' RLUIPA claim, the court said in part:

Defendants argue ... that their conduct ... has no relation to land use regulations and consequently does not fall within the scope of the statute....  Plaintiffs argue that the actions of the DAO and the CSPD were premised on the Plaintiffs’ failure to secure an eviction proceeding within the land use laws of the City..... Further, Plaintiffs argue that “leasing [the Apartment] (and all actions attendant thereto) were as much a part of its religious actions as a Sunday Service.”...

The Court finds that the Plaintiffs’ allegations do not implicate any land use regulations, as defined by the statute.

Georgia Legislature Passes Revised Anti-Boycott of Israel Bill

On January 27, the Georgia legislature gave final passage to House Bill 383 (full text). The bill enacts a revised version of the state's law on participation in boycotts of Israel in reaction to a federal district court's decision last year holding the prior version unconstitutional on free speech grounds. (See prior posting). Like the original version, the new bill requires companies contracting with the state to certify that they are not currently engaged in a boycott of Israel and will not do so during the contract.  The new bill, however, applies only to companies and not to individuals, and applies only to state contracts of $100,000 or more. In a Jan. 31 press release, CAIR said that if the bill is signed by the governor, it will again challenge it in court.

Recent Articles of Interest

From SSRN:

• Farrah Ahmed, Secularism and Human Rights as Subterfuge: In Defence of a Hindu Nationalist Citizenship Regime (January 31, 2022).
• Sakin Tanvir, Hate Speech vs Free Speech: The Ongoing Debate and Challenges in the Globalized World, (December 31, 2021).
• Allen R. Kamp, The Jurisprudence of Bostock, (January 27, 2022).
• Justin Driver & Emma Kaufman, The Incoherence of Prison Law, (Harvard Law Review, Vol. 135, No. 2, p. 515, 2021).
• Beatrice Jessie Hill & Mae Kuykendall, Uprooting Roe, (12 Houston Law Review Online 50 (2022)).
• Michal Shur-Ofry & Noy Lion, Copyright Neutrality? Lessons from Mein Kampf, (Cardozo Arts & Entertainment Law Journal, Vol. 40 (Forthcoming)).

From SmartCILP and elsewhere:

• Martha Minow, Not in the Room Where It Happens: Adversariness, Politicization, and Little Sisters of the Poor, [Abstract], 2020 Supreme Court Review 35-82 (2020).
• Journal of Law and Religion, Volume 36, Issue 3, December 2021.

South Dakota Governor Signs Bill Barring Transgender Women On Women's Sports Teams

Yesterday, South Dakota Governor Kristi Noem signed Senate Bill 46 (full text) which prohibits transgender women from participating in women's sports teams or events in South Dakota schools and colleges.  The ban includes intramural and club events as well as inter-school competitions. It also extends to any accredited school, not just to public schools; to events sponsored by any activities association or organization; and to colleges under control of the Board of Regents or Board of Technical Education. NBC News reports on the governor's action.

National Prayer Breakfast Held Yesterday

President Biden spoke yesterday at the National Prayer Breakfast (full text of remarks) which, this year was held at the U.S. Capitol Visitor Center. Vice-President Harris also delivered remarks.  C-Span has video and a transcript of the full breakfast. A day before the Breakfast, Sen. Chris Coons, one of the Breakfast organizers, told Religion News Service that this year's Breakfast is intended to be a "positive reset" of the 70-year old event which, in recent years, has become controversial.  This year's breakfast attendees were limited to members of Congress, speakers and spouses.  The keynote speaker this year was Bryan Stevenson, founder of the Equal Justice Initiative and author  of the book “Just Mercy.”

Ohio Law On Disposal Of Tissue After Abortion Is Enjoined

In Planned Parenthood Southwest Ohio Region v. Ohio Department of Health, (OH Com. Pl, Jan. 31, 2022), an Ohio state trial court issued a preliminary injunction barring enforcement of an Ohio law (SB27) that was to take effect next week which requires embryonic and fetal tissue after a surgical abortion to be cremated or interred. The court held that reproductive autonomy and freedom of choice in health care are fundamental rights under the Ohio Constitution. It also pointed out that the effect of the law is to prevent surgical abortions before 13 weeks of pregnancy. Before that time, embryonic and fetal tissue cannot be separated from other pregnancy tissue which is required to be disposed of as infectious waste and cannot be interred or cremated. The court concluded that there is a substantial likelihood that plaintiffs will succeed on their claims that the law violates the due process and equal protection provisions of the state Constitution, and that it is unconstitutionally vague. Christian Post reports on the decision.

TRO Granted To 2 Military Members Denied Religious Exemptions From Vaccine Mandate

In Navy Seal I v. Biden, (MD FL, Feb. 2, 2022), a Florida federal district court issued a temporary restraining order enjoining the military from enforcing its COVID vaccination mandate against two individual service members until Feb. 11 in order to maintain the status quo until a hearing on a preliminary injunction is held.  The service members faced imminent removal from command positions for refusing vaccination. The court said in part:

The record in this action establishes that the two service members are very likely to prevail on their claim that their respective branch of the military has wrongfully denied a religious exemption from COVID-19 vaccination. The record creates a strong inference that the services are discriminatorily and systematically denying religious exemptions without a meaningful and fair hearing and without the showing required under RFRA (while simultaneously granting medical exemptions and permitting unvaccinated persons to continue in service without adverse consequence).

Liberty Counsel issued a press release announcing the decision. (See prior related posting.)

Health Care Company Will Pay $75,000 To Settle Christian Nurse's Religious Accommodation Claim

The EEOC announced yesterday that Wellpath, a provider of health services in correctional institutions, has agreed to settle a religious discrimination claim brought by the EEOC on behalf an Apostolic Pentecostal Christian nurse who was hired for a Texas jail.  According to the EEOC:

Before reporting to work, the nurse told a Wellpath human resources employee that her religious beliefs require her to dress modestly and to wear a scrub skirt instead of scrub pants while at work. In response, Wellpath denied the request for her religion-based accommodation and rescinded the nurse’s job offer.

Under the settlement agreement, Wellpath will pay the nurse $75,000 in back pay and damages, and will provide anti-discrimination training and notice of rights to employees.

Ashram Loses RLUIPA "Equal Terms" Challenge

In Divine Grace Yoga Ashram Inc. v. County of Yavapai, (D AZ, Jan. 31, 2022), an Arizona federal district court rejected a RLUIPA claim by an Ashram that objects to the county's insistence it obtain a Conditional Use Permit to continue to operate its retreats and daily meditations on a 12.6 acre ranch property next to the Coconino National Forest.  Plaintiff contends that the Permit requirement violates the "equal terms" provision of RLUIPA because public and charter schools in the same area zoned Residential Single Family are exempt from the requirement.  The court concluded however that public and charter schools are not similarly situated to plaintiff.  State law prohibits localities from imposing zoning restrictions on such schools. That makes them different.

Court Rejects Religious and Other Challenges To Takeover Of Abandoned Homes

Honkala v. U.S. Department of Housing and Urban Development,  (ED PA, Jan. 31, 2022) involves an unsuccessful challenge to the Philadelphia Housing Authority's (PHA) attempted eviction of homeless families who took over abandoned vacant housing owned by PHA.  A community activist and the Poor People’s Economic Human Rights Campaign staged a series of such takeovers.  Among the challenges raised by plaintiffs were religious freedom claims under RFRA and RLUIPA. The court explains:

[Plaintiffs assert] they are “currently possessed of ethical, moral, humanitarian and/or religious belief(s) and action(s), including but not limited to those rooted in a Judeo-Christian tradition of caring for the least and most needy amongst us, which federal law therefore respects and identifies as a ‘religious belief’ pursuant to the definition thereof as set forth in 42 U.S.C. §2000cc-5.”... Plaintiffs allege that their work “building and/or repairing and/or converting real property, such as the public housing property at issue…is therefore considered a ‘religious exercise,’ and Defendants are unable to satisfy their “burden of proving that eviction is the least restrictive means of fostering any compelling interest it may otherwise invoke.....

The Pennsylvania federal district court rejected plaintiffs' RFRA claim because RFRA applies only to actions of the federal government and not to that of states and municipalities.  While PHA holds the property in trust for HUD, HUD did not cause their injuries.  The court also rejected plaintiffs" RLUIPA claim because the claim does not involve a zoning issue and because plaintiffs have no property interest in the house.  The court additionally rejected several other legal theories put forward by plaintiffs, but said in part:

As a means of focusing attention on governmental failure to make effective use of assets available to reduce homelessness, this action succeeds. And if principles of natural law provided the controlling standard, Plaintiffs would have a compelling moral argument: “In cases of need, all things are common property, so there would seem to be no sin in taking another’s property, for need has made it common.” Thomas Aquinas, Summa Theologica 2.2, Question 66, Article 7. But civil law is not designed to answer such ultimate moral questions.

Cert. Filed In Synagogue Picketing Case While Plaintiffs Are Ordered To Pay $158K Attorneys' Fees Of Picketers

A petition for certiorari (full text) was filed recently in Brysk v. Herskovitz, (Sup. Ct., filed Jan. 19, 2022). In the case, the U.S. 6th Circuit Court of Appeals dismissed a suit by synagogue members against anti-Israel pickets who have picketed services at the Beth Israel Synagogue in Ann Arbor, Michigan every week since 2003.  A majority held that the picketers were protected by the First Amendment. (See prior posting.)

Meanwhile, a Michigan federal district court ordered plaintiffs in the case to pay defendants' attorneys' fees of $158,721.75. Gerber v. Herskovitz, (ED MI, Jan. 25, 2022). The court said in part:

The Court is aware that awarding attorney fees to defendants under §1988 may have a chilling effect on the willingness to bring legitimate civil rights claims, and it acknowledges that “awarding attorney fees against a nonprevailing plaintiff in a civil rights action is ‘an extreme sanction, and must be limited to truly egregious cases of misconduct.’” ... However, this is that rare case where such an award is appropriate and warranted. Plaintiffs failed to allege a basic element for each of their claims; their claims were groundless from the outset. As Judge Clay observed, it is “clear that [Plaintiffs brought] this suit to ‘silence a speaker with whom [they] disagree,’” which the First Amendment does not permit....

MLive and JTA report on the decision.

Church Challenges City's Limits On Its Offering Meals To Homeless

Suit was filed last week in an Oregon federal district court by a church challenging a city's ordinance that limits it from offering free meals to the needy more than two days per week.  The complaint (full text) in  St. Timothy’s Episcopal Church v. City of Brookings, (D OR, filed 1/28/2022), says that the new limits were imposed after city residents complained of the homeless gathering around the church. It contends that the restrictions violate RLUIPA as well as the 1st and 14th Amendments, saying in part:

Plaintiffs believe that God and scripture have directed them to continue serving their community by offering St. Timothy’s meal program more than two days per week to ensure that people in need can have access to at least one hot, nutritious meal every day of the week.

... The City’s land use and zoning regulations ... deny and restrict, and will deny and restrict, Plaintiffs’ religious use of St. Timothy’s’ property, is not supported by a compelling government interest, and is not the least restrictive means of furthering any compelling governmental interest.

Reason reports on the lawsuit.

High Schooler Sues Over Suspension For Religiously Motivated Anti-Gay Remarks

 A Michigan high school student sued this week for injunctive and declaratory relief as well as damages contending that his 3-day suspension violated his free speech rights as well as various other rights under state law and the Michigan and U.S. constitutions.  The school contended that the student had violated the school's Bullying/ Cyberbullying/ Harassment policy.  The complaint (full text) in Stout v. Plainwell Community Schools, (WD MI, filed 1/27/2022), alleges that:

Plaintiff is a Christian, who adheres to the historic and traditional Christian doctrine contained in the Bible regarding all life issues, including homosexual conduct....

According to the complaint, school officials told plaintiff's parents that their student:

was accused of “laughing” at some racial and homophobic “jokes” that other kids had told during the summer band camp months ago; that he had participated in an off campus, private group chat/text session during which he texted that God would not accept homosexual conduct because it is a sin; and that he had private, on campus conversations regarding religious beliefs with friends in the band that, while not directed towards any particular person, was overheard by another student.

MLive reports on the lawsuit.

Part Of Texas Anti-BDS Law Held Unconstitutional

In A & R Engineering and Testing, Inc. v. City of Houston, (SD TX, Jan. 28, 2022), a Texas federal district court held unconstitutional a portion of the Texas statute requiring companies entering contracts with governmental entities to certify that they do not, and will not during the term of the contract, boycott Israel. The court said in part:

[Plaintiff] denies any anti-Jewish motivation and testified that his desire to boycott has nothing to do with Jewish people (American or Israeli) but is focused on the acts of the Israeli government.... Nevertheless, the legislation at issue did not originate in an historical vacuum.... [A]nyone with a basic knowledge of modern history knows that one of the first anti-Jewish acts taken by the Nazis after they took power in Germany was the boycott of Jewish businesses in 1933.

The court found a portion of the law unobjectionable:

[T]he court agrees that the mere refusal to engage in a commercial/ economic relationship with Israel or entities doing business in Israel is not "inherently expressive" and therefore does not find shelter under the protections of the First Amendment.

However the court went on to find a First Amendment problem with the provision in the statute that requires businesses also to refrain from "otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations" with Israel or Israeli entities.  The court said in part:

[A]ctions intended to penalize or inflict economic harm on Israel could include conduct protected by the First Amendment, such as giving speeches, nonviolent picketing outside Israeli businesses, posting flyers, encouraging others to refuse to deal with Israel or Israeli entities, or sponsoring a protest which encourages local businesses to terminate business activities with Israel.

The court issued a preliminary injunction limited to this plaintiff, refusing a state-wide injunction or one covering other businesses.  Arab News reports on the decision.

Recent Articles of Interest

From SSRN:

• Michael J. Broyde & Shlomo Pill, Building the Set Table: An Introduction to the Jurisprudence of Rabbi Yehiel Mikhel Epstein’s Arukh ha-Shulhan in Contrast to the Mishnah Berurah, (33 Dine Israel 1 (2020)).
• Sofia Dash, Decoding Female Genital Mutilation through A Sociological Lens, (January 17, 2022).
• Chad G. Marzen, The Gospels and American Jurisprudence,       (January 20, 2022).
• Barbara P. Billauer, JOB and Justice: The Tortious Liability of God for Wrongful Interference, (December 5, 2021).
  Antony Kolenc, Religious Liberty in the Age of COVID, (UNT Dallas College of Law, Accessible Law 2021).
• Pritam Baruah, Human Dignity in Indian Constitutional  Adjudication, (Jimmy Chia-Shin Hsu (ed.) Human Dignity in Asia: A Dialogue Between Law and Culture (Cambridge University Press, Forthcoming 2023)).
• Richard W. Garnett, et. al., Roe and Casey Were Grievously Wrong and Should Be Overruled, (Harvard Journal of Law and Public Policy, Vol. 17, 2021).
• Guha Krishnamurthi & Peter Salib, Bostock and Conceptual Causation, (Yale J. Reg. Notice & Comment (July 22, 2020)).
• Raphaela Andres & Olga Slivko, Combating Online Hate Speech: The Impact of Legislation on Twitter, (ZEW - Centre for European Economic Research Discussion Paper No. 21-103 (2021)).
• Zahra Takhshid, Kidney, Money, and the Shī‘ah Implementation of the Rule of Necessity, (UCLA Journal of Islamic and Near Eastern Law, Vol. 19, No. 1, 2021).

Court Refuses To Enjoin Medical Campus' Vaccination Mandate

In Jane Does 1-11 v. Board of Regents of the University of Colorado, (D CO, Jan. 27, 2022), a Colorado federal district court refused to grant a preliminary injunction against the COVID vaccination requirements of the University of Colorado's Medical Campus.  Under a revised policy, employees are entitled to a religious accommodation if the accommodation would not unduly burden the health and safety of others.  Medical students are not entitled to religious accommodations.  The court found the policy neutral and generally applicable, and so subject only to rational basis review.  The court said in part:

[T]he Court does not see how offering employees the opportunity to request a religious accommodation could amount to treating comparable secular activity more favorably than religious exercise. For one thing, Plaintiffs have not shown that employees and students are comparable in this context....

[A]lthough the University has determined it can accommodate some employees by allowing them to work remotely, Plaintiffs have made no showing that a similar accommodation for students is practicable.  And ... the ... Policy treats employees and students differently because of Title VII of the Civil Rights Act of 1964, which protects the former but not the latter....

The court also concluded that the presence of medical exemptions does not prevent the Policy from being generally applicable.

Michigan Settles Suit Over Placement Policy Of Catholic Adoption Agency

 A Michigan federal district court this week in Buck v. Hertel,(WD MI, Jan. 26, 2022), issued an Order implementing a settlement agreement between the state of Michigan and St. Vincent Catholic Charities which is a licensed child placement agency placing children for foster care and adoption. The Order provides in part:

MDHHS shall not take any action against St. Vincent’s CPA license or terminate or not renew the Contracts because St. Vincent does not: i. certify or approve a same-sex or unmarried couple as a foster parent or adoptive parent, or ii. conduct a home evaluation for a same-sex or unmarried couple, or iii. place a foster child with a same-sex or unmarried couple for foster care or adoption.

Under the settlement, the state also agreed to pay St. Vincent's attorneys' fees of $550,000. As reported by Fox 47 News, the state agreed to the settlement after the U.S. Supreme Court's decision in Fulton v. City of Philadelphia

Delivery Service Settles EEOC Suit Charging Failure To Accommodate Church Attendance

The EEOC announced yesterday that Tampa Bay Delivery Service, an Amazon delivery provider, has settled a religious discrimination suit brought by the EEOC on behalf of a driver who was fired for refusing Sunday shifts in order to attend church services. The company will pay $50,000 in damages, will provide training on religious discrimination to managers and dispatchers, and will designate a religious accommodation coordinator.