Certiorari Denied In Synagogue Picketing Case

Last week, the U.S. Supreme Court denied review in Brysk v. Herskovitz, (Docket No. 21-1024, certiorari denied 3/21/2022). (Order List). 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).

Recent Articles Of Interest

From SSRN:

• Michael Heise & Gregory C. Sisk, Approaching Equilibrium in Free Exercise of Religion Cases? Empirical Evidence from the Federal Courts, (Cornell Legal Studies Research Paper Forthcoming).
• Adam McDuffie, The Problem with the Peace Cross: American Legion v American Humanist Association and the Power of Courts to Shape Societal Memory, (Religio et Lex 4:1 (Summer 2021): 5-18).
• Sahar F. Aziz, Different Name, Same Aim: Targeting Muslims in 'Soft Counterterrorism', (March 25, 2022).
• Steven J. Heyman, Transforming Natural Religion: An Essay on Religious Liberty and the Constitution, (Brigham Young University Law Review, Vol. 48, No. 4, Forthcoming 2023).
• Shiv Narayan Persaud, The American Constitution in the Cycle of Kali Yuga: Eastern Philosophy Greets Western Democracy, (Seattle Journal for Social Justice: Vol. 20 : Iss. 1 , Article 16 (2021).
• Bryan Lammon, Reforming Qualified-Immunity Appeals, (87 Missouri Law Review (Forthcoming 2023)).
• Kimberley Harris, How Do You Solve a Problem Like S.B. 8? Flagrantly Unconstitutional Laws, Procedural Scheming, and the Need for Pre-Enforcement Offensive Litigation, (Tennessee Law Review, Forthcoming).
• Priya Kamath, Outcast(e): The Case for Recognizing Caste Under U.S. Anti-Discrimination Law, (September 20, 2021).
• Dr. Sulaiman Lebbe Rifai, Islam and the West in Ali al- Namlah’s Reconciliatory Thought, (February 5, 2022).
• Peter Molk, Where Nonprofits Incorporate and Why It Matters,  (Iowa Law Review, Forthcoming 2023).

From SmartCILP:

• Cochav Elkayam-Levy, The Diversity of Womanhood and All of God's Creatures: Addressing Challenges in the Protection of Women's Religious Freedoms Using a Novel Classification, 53 Cornell International Law Journal 595-642 (2020).
• Emily Prifogle, Rural Social Safety Nets for Migrant Farmworkers in Michigan, 1942–1971, 46 Law & Social Inquiry 1022-1061 (2021).
• Lisa Harms, Claiming Religious Freedom at the European Court of Human Rights: Socio-Legal Field Effects on Legal Mobilization, [Abstract], 46 Law & Social Inquiry 1206-1235 (2021).
• Nurfadzilah Yahaya, Book Review. Gramophones, Paper Money, and Brimmed Hats: Sharia under Colonial Rule. Modern Things on Trial: Islam's Global and Material Reformation in the Age of Rida, 1865–1935, by Leor Halevi, [Abstract], 46 Law & Social Inquiry 1275-1280 (2021).
• Robin Knauer Maril, Religiously Motivated Conduct and the Reasonable Accommodation Requirement under Title VII: A New Framework for Analysis, 66 Villanova Law Review 731-764 (2021).

11th Circuit Rejects Preacher's Challenge To Campus Permit Requirement

In Keister v. Bell, (11th Cir., March 25, 2022), the U.S. 11th Circuit Court of Appeals rejected a challenge to the University of Alabama's policy that requires a permit in order for a speaker to participate in expressive conduct on University grounds, with an exception for “casual recreational or social activities.” The challenge was brought by a traveling evangelical preacher who, with a friend, set up a banner, passed out religious literature and preached through a megaphone on a campus sidewalk. The court concluded that the sidewalk was a limited public forum, even if it was technically owned by the city rather than the University. Thus the University could impose reasonable, viewpoint neutral restrictions. It also concluded that the exception for "casual ... activities" was not unconstitutionally vague and that the University's advance notice requirement was constitutional.

Iowa Adopts IHRA Definition Of Antisemitism

On March 23, Iowa Governor Kim Reynolds signed HF 2220 (full text) which provides that in the enforcement of state anti-discrimination laws, in determining whether an act was undertaken with antisemitic intent, the state shall take into consideration the definition of antisemitism adopted in 2016 by the International Holocaust Remembrance Alliance.

Governor Reynolds also signed HF2373 (full text) which expanded the definition of "company" in the state's Israel Anti-boycott law.

KCRG News reported on the governor's actions.

No Qualified Immunity For Requiring Patient To Attend Religious Service

In Erie v. Hunter, (MD LA, March 23, 2022), a Louisiana federal district court rejected a qualified immunity defense raised by a psychiatric aide employed by a state mental health facility.  Plaintiff, who had been civilly committed to the facility, contended that he was forced to attend a Christian religious service. He sued for damages, alleging an Establishment Clause violation. Defendant argued that she was the only aide on the ward and could not leave any patient in their room with no one on duty.  Therefore she was faced with the choice of requiring plaintiff to attend or prohibiting all patients on the ward from attending. The court said in part:

Defendant contends that she exercised "fair and reasonable judgment in ensuring the safety and security of the residents under her care while also allowing those residents who wish to attend the service to do so."...

This argument fails on multiple levels. First, the "clearly established" prong of the qualified immunity analysis does not measure the reasonableness of a defendant's actions against the circumstances presented; rather, it measures the reasonableness of the defendant's actions against the "state of the law" at the time the defendant acted....

Second, assuming for present purposes that Defendant only had two options available to her, she nonetheless chose the option that favored religion.... Ultimately, whether Defendant's choice to force Plaintiffs attendance at the religious service violated the Establishment Clause's guarantee of religious neutrality will turn on whether she acted with the ostensible and predominant purpose of advancing religion." ...

[W]hile Defendant's motive/intent may ultimately bear on the outcome of Plaintiffs Establishment Clause claims—particularly if those motives are consistent with the state's interest in maintaining safety of all ELMHS residents—such issues cannot be determined from the allegations of Plaintiffs complaint and require factual development through discovery.

[Thanks to Glenn Katon for the lead.]

Supreme Court Stays District Court's Ban On Navy Applying Vaccine Mandate To SEALs With Religious Objections

Yesterday in Austin v. U.S. Navy Seals 1-26, (Sup.Ct., March 25, 2022), in a case on its shadow docket, the U.S. Supreme Court by a vote of 6-3 stayed a Texas district court's order that barred the Navy from considering the COVID vaccination status of 35 service members in making deployment, assignment and operational decisions. The service members all have religious objections to the vaccines. The Court's stay remains in effect while appeals to the 5th Circuit and, subsequently if necessary, to the Supreme Court are pending. The stay was granted through an unsigned one-paragraph order.  However, Justice Kavanaugh filed a concurring opinion, saying in part:

[T]he District Court, while no doubt well-intentioned, in effect inserted itself into the Navy’s chain of command, overriding military commanders’ professional military judgments. The Court relied on the Religious Freedom Restoration Act... But even accepting that RFRA applies in this particular military context, RFRA does not justify judicial intrusion into military affairs in this case. That is because the Navy has an extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all Special Warfare personnel—including control over decisions about military readiness. And no less restrictive means would satisfy that interest in this context.

Justice Thomas dissented without opinion.  Justice Alito, joined by Justice Gorsuch, filed a dissenting opinion, which concluded that the Navy had not satisfied the requirements of RFRA or the 1st Amendment.  However, the opinion would grant limited relief to the Navy while appeals are pending.  The opinion said in part:

While I am not sure that the Navy is entitled to any relief at this stage, I am also wary, as was the District Court, about judicial interference with sensitive military decision making. Granting a substantial measure of deference to the Navy, I would limit the [district court's] order to the selection of the Special Warfare service members who are sent on missions where there is a special need to minimize the risk that the illness of a member due to COVID–19 might jeopardize the success of the mission or the safety of the team members.

NBC News reports on the decision. [Thanks to Joshua Sarnoff via Religionlaw for the lead.]

Michigan City Violated RLUIPA In Applying Special Requirements On Places Of Worship

In United States v. City of Troy, (ED MI, March 18, 2022), a Michigan federal district court enjoined the city of Troy, Michigan from enforcing its zoning ordinance that imposes stricter setback and parking standards on places of worship than it does on non-religious uses in the same zoning district. The Zoning Board of Appeal refused to grant a variance from these requirements to the Islamic Adam Community Center. The court held that the city had violated the "equal terms" provisions of RLUIPA, saying in part:

While it may be true that places of worship do cause some of the negative impacts to which Troy refers—a high number of visitors, traffic influxes during short periods of time, safety considerations due to increased traffic, and nuisances such as increased noise, light, or exhaust fumes—Troy fails to provide evidence as to how exactly these concerns are unique with respect to places of worship and not similar institutions such as schools or banquet halls.

The court also concluded that the city had violated the "substantial burden" provisions of RLUIPA.  [Thanks to John Kulesz for the lead.]

DHS Issues New Interim Final Rule On Asylum Application Procedures

Yesterday, in a 512-page Release (full text), the Department of Homeland Security adopted an Interim Final Rule (IFR) on procedures for deciding on applications for asylum. It summarized the new rule in part as follows:

The principal purpose of this IFR is to simultaneously increase the promptness, efficiency, and fairness of the process by which noncitizens who cross the border without appropriate documentation are either removed or, if eligible, granted protection. The IFR accomplishes this purpose both by instituting a new process for resolving the cases of noncitizens who have been found to have a credible fear of persecution or torture and by facilitating the use of expedited removal for more of those who are eligible, and especially for populations whose detention presents particular challenges.

Suit Says Border Agents Questioned Muslims About Their Religious Practices

Suit was filed yesterday in a California federal district court by three Muslim Americans who claim that they were asked religiously intrusive questions by U.S. Customs and Border Protection agents upon their return from international travel. Among the questions were: “How often do you pray?” “Do you attend mosque?” “Which mosque do you attend?” “Are you Sunni or Shi’a?”  The complaint (full text) in Kariye v. Mayorkas, (CD CA, filed 3/24/2022), contends in part:

Religious questioning such as this violates the U.S. Constitution. It furthers no valid—let alone compelling—government interest, and it is an affront to the First Amendment freedoms of religion and association. Moreover, because Defendants specifically target Muslim Americans for such questioning, they also violate the First and Fifth Amendments’ protections against unequal treatment on the basis of religion. Just as border officers may not single out Christian Americans to ask what denomination they are, which church they attend, and how regularly they pray, singling out Muslim Americans for similar questions is unconstitutional....

 This practice also violates the Religious Freedom Restoration Act.

 Wall Street Journal reports on the lawsuit.

Supreme Court Says Pastor Should Be Allowed To Pray Audibly And Lay Hands On Prisoner Being Executed

In Ramirez v. Collier, (Sup.Ct., March 24, 2022), the U.S. Supreme court in n 8-1 decision held that a death row prisoner was likely to succeed in his RLUIPA lawsuit challenging limits on his pastor's activities in the execution chamber.  The Court held that petitioner is entitled to a preliminary injunction barring Texas from proceeding with his execution without permitting his pastor, during the execution, to lay hands on the prisoner and audibly pray with him. Chief Justice Roberts majority opinion said in part:

First, prison officials say that absolute silence is necessary in the execution chamber so they can monitor the inmate’s condition through a microphone suspended overhead. They say that audible prayer might impede their ability to hear subtle signs of trouble or prove distracting during an emergency.... But respondents fail to show that a categorical ban on all audible prayer is the least restrictive means of furthering their compelling interests....

Second, prison officials say that if they allow spiritual advisors to pray aloud during executions, the opportunity “could be exploited to make a statement to the witnesses or officials, rather than the inmate.” ... But there is no indication in the record that Pastor Moore would cause the sorts of disruptions that respondents fear...

Respondents’ categorical ban on religious touch in the execution chamber fares no better.... Under Texas’s current protocol, spiritual advisors stand just three feet from the gurney in the execution chamber.... A security escort is posted nearby, ready to intervene if anything goes awry.... We do not see how letting the spiritual advisor stand slightly closer, reach out his arm, and touch a part of the prisoner’s body well away from the site of any IV line would meaningfully increase risk.

Justices Sotomayor and Kavanaugh each filed a concurring opinion.  Justice Thomas filed a 23-page dissent, saying in part:

Petitioner John Henry Ramirez stabbed Pablo Castro 29 times during a robbery that netted $1.25. Castro bled to death in a parking lot. Since that day, Ramirez has manufactured more than a decade of delay to evade the capital sentence lawfully imposed by the State of Texas. This Court now affords yet another chance for him to delay his execution. Because I think Ramirez’s claims either do not warrant equitable relief or are procedurally barred, I respectfully dissent.

CNN reports on the decision.

Idaho Governor Signs A Heartbeat Abortion Ban

Yesterday, Idaho Governor Brad Little signed Senate Bill 1309, the Fetal Heartbeat Preborn Child Protection Act (full text). While news media report that the law is modeled on Texas SB8, there are differences between the two laws. Like the Texas law, SB 1309 prohibits abortions after a fetal heartbeat can be detected-- generally 6 weeks, and provides for private enforcement. However the Idaho law has an exception for rape or incest (if reported to law enforcement authorities) or for medical emergencies. The Texas law only excepts medical emergency. Under the Idaho law, a private enforcement action may be brought only by the father, grandparent, sibling, aunt or uncle of the pre-born child. They may sue for actual damages plus statutory damages of $20,000. Under the Texas law, anyone (other than a state or local official) may sue. Under the Idaho law, criminal penalties and license suspensions for health care professionals who violate the law are triggered "thirty (30) days following the issuance of the judgment in any United States appellate court case in which the appellate court upholds a restriction or ban on abortion for a pre-born child because a detectable heartbeat is present on the grounds that such restriction or ban does not violate the United States constitution."

Mandatory LGBTQ Anti-Discrimination Training Did Not Violate Title VII

In Zdunski v. Erie 2-Chautauqua-Cattaraugus BOCES, (WD NY, Feb. 16, 2022), a New York federal district court dismissed Title VII and state law religious discrimination claims brought by Raymond Zdunski, an account clerk at the Board of Cooperative Educational Services.  BOCES required all of its employees to attend LGBTQ anti-discrimination training after one of its employees requested accommodation for gender transition.  Zdunski refused, contending that the training was aimed at changing his religious beliefs on gender and sexuality and that attending would violate his religious beliefs. He was fired for insubordination. The court said in part:

Mr. Zdunski has not presented any evidence that the trainings were directed toward him or other Christian employees in a discriminatory manner....

Here, Mr. Zdunski's proposed accommodation—that he be excused from the mandatory LGBTQ anti-discrimination training—amounts to more than a de minimis cost to his employer's business operations. BOCES is bound by New York State law to provide annual anti-discrimination trainings for all employees and to maintain "an environment free of discrimination and harassment." See N.Y. Educ. Law Tit. 1 Art. 2 §§ 10, 13. Allowing Mr. Zdunski's requested accommodation to forego anti-discrimination trainings would have put his employer in the position of violating the training requirements set forth in DASA. An accommodation that would require an employer to run afoul of state law constitutes a substantial hardship and would be more than a de minimis cost to the employer.

No RLUIPA Or Free Exercise Violation In Denying Sewer Service To Proposed Church Building

In Canaan Christian Church v. Montgomery County Maryland, (4th Cir., March 22, 2022), the U.S. 4th Circuit Court of Appeals held that Montgomery County did not violate a church's rights under RLUIPA or the 1st Amendment when it refused to extend public sewer lines to properties on which the church proposed to construct a new larger building for its congregation. The land use and water plans covering the properties provided that no public sewer service would be permitted (except for public health requirements). The church's purchase contracts for the properties were contingent on the county's approval of sewer service. The court said in part:

Because Appellants were well aware of the difficulties in development of the Property when they entered into the contract to purchase the Property, they could not have a reasonable expectation of religious land use. Further, the land use restrictions are rationally related to the government’s interest in protecting the region’s watershed.

A concurring opinion by Judge Richardson took issue with some of the analysis in the majority opinion.

U.S. Imposes New Sanctions On China For Repression Of Ethnic And Religious Minorities

On Monday, Secretary of State Anthony Blinken announced (full text of press statement) that the U.S. is imposing new sanctions on Chinese officials for human rights violations. He said in part:

The Department of State is taking action against PRC officials for their involvement in repressive acts against members of ethnic and religious minority groups and religious and spiritual practitioners inside and outside of China’s borders, including within the United States....

Today’s action imposes visa restrictions on PRC officials who are believed to be responsible for, or complicit in, policies or actions aimed at repressing religious and spiritual practitioners, members of ethnic minority groups, dissidents, human rights defenders, journalists, labor organizers, civil society organizers, and peaceful protestors in China and beyond....

We call on the PRC government to end its ongoing genocide and crimes against humanity in Xinjiang, repressive policies in Tibet, crackdown on fundamental freedoms in Hong Kong, and human rights violations and abuses, including violations of religious freedom, elsewhere in the country.

CBS News reports on the State Department's action.

Indiana and Utah Governors Veto Bans Of Transgender Females On Sports Teams

Indiana Governor Eric Holcomb on Monday vetoed HEA 1041 (full text) which bans transgender females from competing on female interscholastic athletic teams.  In his veto letter (full text), the Governor said in part:

[T]he presumption of the policy laid out in HEA 1041 is that there is an existing problem in K-12 sports in Indiana that requires further state government intervention. It implies that the goals of consistency and fairness in competitive female sports are not currently being met. After thorough review, I find no evidence to support either claim even if I support the overall goal.

AP reports on the governor's action.

Meanwhile, yesterday Utah Governor Spencer Cox vetoed H.B.11 (full text) which similarly prohibited transgender females from competing on female interscholastic athletic teams. The bill provided that if this ban was struck down by the courts, a School Activity Eligibility Commission would be created to determine the eligibility for gender-specific teams of students who are undergoing gender transition. The Commission would establish a baseline range of physical characteristics for different sports and ages to use in making its determinations.

Governor Cox issued a lengthy and detailed veto letter (full text), which reads in part:

Because the bill was substantially changed in the final hours of the legislative session with no public input and in a way that will likely bankrupt the Utah High School Athletic Association and result in millions of dollars in legal fees for local school districts with no state protection, and for several other reasons below, I have chosen to veto this bill....

Four kids and only one of them playing girls sports. That’s what all of this is about. Four kids who aren’t dominating or winning trophies or taking scholarships. Four kids who are just trying to find some friends and feel like they are a part of something. Four kids trying to get through each day. Rarely has so much fear and anger been directed at so few. I don’t understand what they are going through or why they feel the way they do. But I want them to live. And all the research shows that even a little acceptance and connection can reduce suicidality significantly. For that reason, as much as any other, I have taken this action in the hope that we can continue to work together and find a better way. If a veto override occurs, I hope we can work to find ways to show these four kids that we love them and they have a place in our state.

AP reports on the governor's action, and reports that legislative leaders plan to reconvene on Friday to consider a veto override.  The Governor has issued a Proclamation calling a special session of the legislature for Friday to consider an indemnification provision for the Utah High School Athletic Association and local school districts that will be sued.

UPDATE: As reported by AP, on March 25, the Utah legislature overrode the governor's veto.

UPDATE: As reported by WYFI, on May 24 the Indiana legislature overrode the governor's veto. The ACLU has filed suit challenging the law.

U.S. Labels Burmese Military's Treatment Of Rohingya As Genocide

In a speech (full text) yesterday at the United States Holocaust Memorial Museum, Secretary of State Anthony Blinken announced that the United States has concluded that Burma's actions against the Rohingya constitute genocide.  He said in part:

One of my responsibilities as Secretary is determining, on behalf of the United States, whether atrocities have been committed.  It’s an immense responsibility that I take very seriously, particularly given my family’s history.

Beyond the Holocaust, the United States has concluded that genocide was committed seven times.  Today marks the eighth, as I have determined that members of the Burmese military committed genocide and crimes against humanity against Rohingya.

In Settlement, Michigan Allows Catholic Charities To Refuse Child Placements With Same-Sex Or Unmarried Couples

In Catholic Charities West Michigan v. Michigan Department of Health and Human Services, (ED MI, March 21, 2022), a Michigan federal district court approved a settlement agreement under which the state of Michigan will allow Catholic Charities, operating under contracts with the state, to refuse to place children for adoption or foster care with same-sex or unmarried couples and refuse to conduct home evaluations for same-sex or unmarried couples. The parties' Agreement says in part:

[A]s a result of the Supreme Court’s decision in Fulton v. City of Philadelphia, 593 U.S. ___ (2021), the Parties agree that Plaintiff would likely prevail on Count V (Free Exercise) of the Complaint.

The state also agreed to pay plaintiffs' attorneys' fees in the amount of $250,000. ADF issued a press release announcing the settlement.

Mahr Did Not Set Upper Limit Of Amounts Awardable To Wife In Divorce

In Parbeen v. Bari, (FL App., March 16, 2022), a Florida state appellate court held that a traditional Islamic prenuptial agreement-- a Mahr-- in setting an amount payable upon divorce did not eliminate the wife's right to temporary support, alimony, equitable distribution of property and attorneys' fees under Florida law. While the Mahr's secular terms are enforceable under Florida contract law, the Mahr did not set the maximum amount payable to the wife. [Thanks to Volokh Conspiracy via Steven H. Sholk for the lead.]

DC Minor Consent Law Violates Parents' Free Exercise Rights

In Booth v. Bowser, (D DC, March 18, 2022), a D.C. federal district court granted a preliminary injunction on free exercise grounds against the Minor Consent for Vaccinations Act Amendment of 2020 which allows minors who are at least 11 years old to consent to vaccinations without parental approval. The court concluded that the Act burdens religious practice, explaining:

If a minor’s parent has filed a religious exemption for the child and the child elects to get a vaccine anyway, a healthcare provider must leave blank part 3 of the Certificate. Id. Part 3 is the child’s immunization record. This serves to obfuscate the child’s vaccination from his parents. But the MCA does not require providers to leave blank part 3 of the Certificate for students whose parents filed a medical exemption.

Washington Post reports on the decision.

Supreme Court GVR's Title VII Reasonable Accommodation Appeal

Yesterday in Hedican v. Walmart Stores East, (Docket No. 21-648, gvr'd 3/21/2022), (Order List), the U.S. Supreme Court granted certiorari, summarily vacated the judgment below and remanded the case to the Seventh Circuit for further consideration in light of Cameron v. EMW Women’s Surgical Center. In the Walmart case, the 7th Circuit held that accommodating the scheduling need of a Seventh Day Adventist would impose an undue burden on Walmart. After that decision, Edward Hedican, on whose behalf the EEOC had sued, sought to intervene in order to file a petition for certiorari. The Seventh Circuit held that the motion to intervene was untimely. Hedican's petition for certiorari said that it presents identical questions to Cameron.