Religion Clause

Tuesday, March 01, 2022

Air Force Reservist With Religious Objection To COVID Vaccine Wins Injunction

In Poffenbarger v. Kendall, (SD OH, Feb. 28, 2022), an Ohio federal district court issued a preliminary injunction barring the Air Force from taking further adverse action against an Air Force reservist who refuses for religious reasons to comply with the military's COVID vaccine mandate. The court concluded that plaintiff's rights under both RFRA and the free exercise clause were violated, saying in part:

Defendants have not shown that the Air Force’s action meets the least-restrictive-means test. The evidence indicates that the Air Force has granted virtually zero exemptions to the COVID-19 vaccine mandate on religious grounds.... At the same time, the Air Force has granted thousands of exemptions to the COVID-19 vaccine mandate on non-religious grounds.... This supports that less restrictive means of furthering the Air Force’s interests are being provided (even if only on a “temporary” basis) on non-religious grounds. And, the Defendants have not shown why such less restrictive means cannot likewise be provided to Poffenbarger.

Springfield News-Sun reports on the decision.

Monday, February 28, 2022

Cert. Denied In Ministerial Exception Case, With 4 Justices Expressing Concerns

The U.S. Supreme Court today denied review in Gordon College v. DeWeese-Boyd, (Docket No. 21-145, certiorari denied 2/28/2022) (Order List). In the case, the Massachusetts Supreme Judicial Court held that the ministerial exception does not apply in a suit by an associate professor of social work at a private Christian liberal arts college who claims her promotion to full professor was denied because of her vocal opposition to the school's policies on LGBTQ individuals. (See prior posting.) Justice Alito, joined by Justices Thomas, Kavanaugh and Barrett, filed an opinion (full text) concurring in the denial of certiorari, but expressing concern with the lower court's decision, saying in part:

The Supreme Judicial Court of Massachusetts held that this “ministerial exception” did not apply to a professor at a religious college who “did not teach religion or religious texts,” but who was still expected to “integrate her Christian faith into her teaching and scholarship.” ... Although the state court’s understanding of religious education is troubling, I concur in the denial of the petition for a writ of certiorari because the preliminary posture of the litigation would complicate our review. But in an appropriate future case, this Court may be required to resolve this important question of religious liberty....

What many faiths conceive of as “religious education” includes much more than instruction in explicitly religious doctrine or theology.... [M]any religious schools ask their teachers to “show students how to view the world through a faith-based lens,” even when teaching nominally secular subjects.

Sunday, February 27, 2022

Texas AG and Governor Say Gender Transition Of Minors Can Constitute Child Abuse

On Feb. 18, Texas Attorney General Ken Paxton in Attorney General Opinion No. KP-401 concluded that a number of procedures used to treat gender dysphoria, i.e. assist transgender individuals in their gender transitions, can amount to child abuse under Texas law. The 13-page Opinion states in part:

To the extent that these procedures and treatments could result in sterilization, they would deprive the child of the fundamental right to procreate, which supports a finding of child abuse under the Family Code....

Where, as a factual matter, one of these procedures or treatments cannot result in sterilization, a court would have to go through the process of evaluating, on a case-by-case basis, whether that procedure violates any of the provisions of the Family Code—and whether the procedure or treatment poses a similar threat or likelihood of substantial physical and emotional harm....

To the extent the specific procedures about which you ask may cause mental or emotional injury or physical injury within these provisions, they constitute abuse.

Further, the Legislature has explicitly defined “female genital mutilation” and made such act a state jail felony.... While the Legislature has not elsewhere defined the phrase “genital mutilation”, nor specifically for males of any age, the Legislature’s criminalization of a particular type of genital mutilation supports an argument that analogous procedures that include genital mutilation—potentially including gender reassignment surgeries—could constitute “abuse” under the Family Code’s broad and nonexhaustive examples of child abuse or neglect.

On Feb. 22, Texas Governor Greg Abbott sent a letter (full text) to the head of the Texas Department of Family and Protective Services, instructing them to promptly investigate cases covered by the Attorney General's Opinion. the Governor said in part:

Texas law imposes reporting requirements upon all licensed professionals who have direct contact with children who may be subject to such abuse, including doctors, nurses, and teachers, and provides criminal penalties for failure to report such child abuse.... There are similar reporting requirements and criminal penalties for members of the general public....

Texas law also imposes a duty on DFPS to investigate the parents of a child who is subjected to these abusive gender-transitioning procedures, and on other state agencies to investigate licensed facilities where such procedures may occur.

Washington Post and Axios report on these developments.

Suit Challenges Latest Application Of Vermont Town Tuition Program

Suit was filed last week in a Vermont federal district court challenging the manner in which the state administers its Town Tuition Program that provides tuition reimbursement for students from towns that do not have their own public high schools. Reimbursement is available for attendance at private or out-of-district public high schools. The complaint (full text) in Plaintiff E. W. v. French, (D VT, filed 2/24/2022), alleges that the state's current policy:

requires school districts to collect information on private religious schools' religious activity and to reduce or deny tuition benefits to account for religious schools' "religious worship" or "religious education."

The suit contends that this violates plaintiffs free exercise, free speech, Establishment Clause and due process rights, saying in part:

Defendants have no legitimate interest in enacting a greater separation of Church and State than is provided by the Establishment Clause of the First Amendment to the United States Constitution.

The Town Tuition Program has been the subject of extensive prior litigation. (See prior posting.) ADF issued a press release announcing the filing of the lawsuit.

9th Circuit: Qualified Immunity Requires Dismissal Of Inmate's Religious Meal Complaint

In Miller v. Acosta, (9th Cir., Feb. 25, 2022), a suit by an inmate, the U.S. 9th Circuit Court of Appeals held:

The district court properly determined that defendant Acosta was entitled to qualified immunity on Miller’s free exercise claim because Acosta’s conduct in refusing to provide Miller with his RMA [Religious Meat Alternative] meals when Miller did not show him a Religious Diet Card did not violate clearly established law.

Friday, February 25, 2022

Jackson Chosen By Biden For Supreme Court: Little Record On Religion Issues

President Biden has announced that he will nominate D.C. Circuit Judge Ketanji Brown Jackson to succeed Justice Breyer on the U.S. Supreme Court. She was a former clerk for Breyer. Jackson has very little public record on church-state and free exercise issues. I have been able to locate only one religion case (a Title VII case) in which she has written an opinion as either federal district or circuit court judge: Tyson v. Brennan, 306 F.Supp. 365) (D DC, Sept. 27, 2017). It appears that the most extensive indication of her views on the religion clauses are found in her Responses to Questions for the Record in connection with her nomination to the D.C. Circuit (at pages 16, 18, 26, 27, 28, 35, 41, 49, 58, 63, 73, 74). There appears to be no reliable information available about Jackson's own religious affiliation. Americans United for Separation of Church and State has issued a statement supporting her nomination.

Thursday, February 24, 2022

Sexual Assault Victim Sues Tennessee Catholic Diocese

Suit was filed this week in a Tennessee state trial court against the Catholic Diocese of Knoxville and its bishop. A press release from plaintiff's attorneys summarizes the complaint (full text) in John Doe v. Catholic Diocese of Knoxville, (TN Cir. Ct., filed 2/22/2022):

A lawsuit filed in the Circuit Court for Knox County, Tennessee alleges that the Catholic Diocese of Knoxville and its bishop, Richard Stika, negligently failed to stop a diocesan seminarian from raping and sexual harassing a fellow employee in 2019, then spread false and defamatory rumors about the employee to protect itself and the seminarian, a friend of the bishop.

Suit In Connecticut State Court Challenges Elimination Of Religious Exemptions To School Vaccine Requirements

Suit was filed earlier this month in a Connecticut state trial court challenging the Connecticut's elimination of religious exemptions to the requirement that school children receive vaccination against several diseases. In January, a Connecticut federal district court dismissed a similar challenge (We The Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (D CT, Jan. 11, 2022). The new state court complaint (full text) in We The Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (CT Super., Feb. 8, 2022), contends that requiring students who have religious objections to receive vaccines developed with fetal cells, or containing porcine gelatin, violates various provisions of the Connecticut state constitution and of state law protecting free exercise of religion, as well as equal protection, bodily self-determination, child-rearing, and public education rights. CT Insider reports on the lawsuit.

Settlement Reached In Dispute Over VA Hospital's Display Of Bible

AP reports that the parties have reached an agreement leading to a New Hampshire federal district court's dismissal of a suit against the Manchester VA Medical Center. The suit, filed in 2019, challenged a lobby "missing man" display that includes a Bible. (See prior posting.) Under the settlement agreement, the Military Religious Freedom Foundation will apply for permission to set up a second table that will feature an American flag and a published, generic Book of Faith, along with a granite stone engraved with "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Preacher Can Move Ahead With Selective Enforcement Challenge To U.S. Capitol Demonstration Limits

In Mahoney v. United States Capitol Police Board, (D DC, Feb. 22, 2022), a clergyman challenged traffic regulations that barred demonstrations by 20 or more people at various locations near the U.S. Capitol. Plaintiff claimed he felt "called by God" to hold a prayer vigil near the Capitol to mark the 20th anniversary of the 9-11 attacks. The court rejected plaintiff's facial free speech challenge to the regulation. However it permitted plaintiff to move ahead with his selective enforcement and free-association claims, saying in part:

Plaintiff has therefore alleged that the Board declined to enforce the Traffic Regulations against several large demonstrations that did not involve religious speech, while it enforced them against him because of the religious content of his speech. It is thus at least plausible that Defendants’ decision was based on the content of Mahoney’s speech, even if that is not the only plausible explanation.

The court rejected plaintiff's Free Exercise and RFRA challenges. It observed: "nowhere does he allege that having a large group present was essential to carrying out his sincerely held religious belief."

Wednesday, February 23, 2022

Putin's Grievances Include Split In Ukraine's Orthodox Churches

As the world's attention is focused on Russia's claims on Ukraine, there has been less reporting on the tensions between Russian and Ukrainian branches of the Orthodox Church. This AP background article by Prof. J. Eugene Clay points out:

Two different Orthodox churches claim to be the one true Ukrainian Orthodox Church for the Ukrainian people... The older and larger church is the Ukrainian Orthodox Church – Moscow Patriarchate.... A branch of the Russian Orthodox Church, it is under the spiritual authority of Patriarch Kirill of Moscow.....

By contrast, the second, newer church, the Orthodox Church of Ukraine, celebrates its independence from Moscow.... In January 2019, [Constantinople] Patriarch Bartholomew formally recognized the Orthodox Church of Ukraine as a separate, independent and equal member of the worldwide communion of Orthodox churches.

Vladimir Putin's widely reported Feb. 21 speech on the Ukraine (full text) included Russian grievances as to this religious split. Putin said in part:

Kiev continues to prepare the destruction of the Ukrainian Orthodox Church of the Moscow Patriarchate. This is not an emotional judgement; proof of this can be found in concrete decisions and documents. The Ukrainian authorities have cynically turned the tragedy of the schism into an instrument of state policy. The current authorities do not react to the Ukrainian people’s appeals to abolish the laws that are infringing on believers’ rights. Moreover, new draft laws directed against the clergy and millions of parishioners of the Ukrainian Orthodox Church of the Moscow Patriarchate have been registered in the Verkhovna Rada.

Christian Doctors Challenge California Assisted Suicide Provisions

An organization of Christian healthcare professionals and one of its members filed suit yesterday in a California federal district court challenging the current version of California's End of Life Options Act (EOLA) on free exercise, free speech, due process and equal protection grounds. The complaint (full text) in Christian Medical & Dental Associations v. Bonta, (CDCA, filed 2/22/2022), alleges that changes made to EOLA last year by SB 380 remove previous protections and now require doctors to participate in assisted suicide in violation of their religious beliefs. It contends that SB 380 requires objecting physicians to:

a. Document the date of a patient’s initial assisted-suicide request, which counts as the first of two required oral requests;
b. Transfer the records ... to a subsequent physician who may complete the assisted suicide;
c. Diagnose whether a patient has a terminal disease, inform the patient of the medical prognosis, and determine whether a patient has the capacity to make decisions, all of which are statutorily required steps toward assisted suicide;
d. Provide information to a patient about the End of Life Options Act;
e. Provide a requesting patient with a referral to another provider who may complete the assisted suicide.

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

Certiorari Denied In Challenge To Maine COVID Vaccine Mandate

Yesterday the U.S. Supreme Court denied review in Does 1-3 v. Mills, (Docket No. 21-717, certiorari denied, 2/22/2022) (Order List). At issue in the case is whether Maine's COVID vaccine mandate for healthcare workers, without the availability of religious exemptions, violates the Free Exercise clause. (See prior posting.) LifeNews reports on the denial of certiorarai.

Tuesday, February 22, 2022

Supreme Court Grants Review In Case Of Website Designer Who Refuses Same-Sex Wedding Customers

The U.S. Supreme Court today granted review in 303 Creative LLC v. Elenis, (certiorari granted, 2/22/2022) (order List). The grant of certiorari was limited to the question of "Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment." In the case, the U.S. 10th Circuit Court of Appeals upheld the application of Colorado's Anti-Discrimination Act to a wedding website design company whose owner for religious reasons refuses to create websites that celebrate same-sex marriages. It said that the 1st Amendment allows the state to ban speech that promotes unlawful conduct, including unlawful discrimination. (See prior posting.) Here is the SCOTUSblog case page with links to briefs in the case.

Colombia's Constitutional Court Legalizes Abortion Until 24 Weeks Of Pregnancy

Reuters reports that yesterday Colombia's Constitutional Court voted 5-4 to decriminalize abortion until 24 weeks of gestation. This adds to a 2006 ruling that legalized abortion without time limits in cases of rape, fatal fetal deformity and health of the woman. The announcement came through this Spanish language press release from the Court.

First Muslim Appointed To Permanent Seat On Israel's Supreme Court

According to the Jerusalem Post, in Israel yesterday the Judicial Selection Committee appointed four new justices to the Supreme Court, one of whom is the first Muslim to serve as a permanent Justice. The new Justice, Khaled Kabub, fills the "Arab-Israeli seat" on the court which previously has been held by Christian Arabs (except for a temporary 9-month appointment in 1999 of Abdel Rahman Zoabi). Since 2003, Kabub has served as a judge on the Tel Aviv District Court where he has handled primarily cases involving economic crimes.

Monday, February 21, 2022

Supreme Court Denies Injunction As School System Postpones Vaccine Mandate

In Doe v. San Diego School District, (Sup. Ct., Feb. 18, 2022), the U.S. Supreme Court issued an Order (full text) refusing to enjoin a school district's COVID vaccine mandate that does not provide for religious exemptions. The Court said in part:

Because respondents have delayed implementation of the challenged policy, and because they have not settled on the form any policy will now take, emergency relief is not warranted at this time. Applicants’ alternative request for a writ of certiorari before judgment and a stay pending resolution is denied for the same reason. The Court’s denial is without prejudice to applicants seeking a new injunction if circumstances warrant.

As a press release from the Thomas More Society relates, the suit was brought by a student athlete whose religious beliefs prevent her from taking the current vaccines because of the use of fetal cells in their development.

Satirical Videos Criticizing Jehovah's Witnesses Did Not Violate Copyrights

In In re: DMCA Section 512(h) Subpoena to YouTube (Google, Inc.), (SD NY, Jan. 18, 2022),a New York federal district court quashed a subpoena request under the Digital Millennium Copyright Act seeking the identity of an individual who allegedly infringed copyrights of the Watchtower Bible and Tract Society, the organization that publishes Jehovah's Witness literature. At issue were satirical YouTube videos posted by a lapsed Jehovah's Witness, described by the court in part as follows:

Under the pseudonym of “Kevin McFree,” Movant publishes videos on YouTube featuring stop-frame Lego animations set in a fictitious village called “Dubtown” that satirize and criticize the practices of Jehovah’s Witnesses.

The court concluded that because the YouTube postings amounted to fair use, there was no copyright infringement. The court said in part:

Movant’s other videos in his YouTube channel, like the Dubtown Video, all involve stop-frame Lego animations with titles that are derisive about the practices of Jehovah’s Witnesses.... It is well-established that “[a]mong the best recognized justifications for copying from another’s work is to provide comment on it or criticism of it.”

TorrentFreak reports at greater length on the case.