11th Circuit Hears Oral Arguments In City Prayer Vigil Case

 Yesterday, the U.S. 11th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Rojas v. City of Ocala, Florida. In the case, , a Florida federal district court held that the City of Ocala, Florida and its police chief violated the Establishment Clause when they organized and promoted a prayer vigil in response to a shooting spree plaguing the city. (See prior posting.) Fox35 reports on the case ahead of the oral arguments.

Free Exercise Challenge To Washington Vaccine Mandate Is Dismissed

 In Wise v. Inslee, (ED WA, April 27, 2022), a Washington federal district court dismissed various challenges to Washington state's vaccine mandate for certain state employees, including free exercise, Title VII religious discrimination, and Establishment Clause claims. The court said in part:

... [T]he State clearly has a legitimate government interest in preventing the spread of COVID-19, an interest that has been endorsed by the Ninth Circuit.... Additionally, the Proclamation is rationally related to that interest because it is based on overwhelming evidence that the vaccines are safe and effective, and increasing vaccination rates among those employees who come into regular contact with vulnerable populations is a rational action to reduce the spread of COVID-19. Accordingly, the Proclamation easily survives federal constitutional scrutiny....

More Context Needed In Student's Suit Over Right To Wear Shirt With Anti-Gay Bible Verse

In B.A.P. v. Overton County Board of Education, (MD TN, April 27, 2022), a Tennessee federal district court refused to dismiss a suit challenging on free exercise and free speech grounds a school's disciplining of a student who refused to take off a shirt that read: "homosexuality is a sin - 1 Corinthians 6:9-10." The court said in part:

 "[T]o justify prohibition of a particular expression of opinion" under Tinker, a school must show that it acted out of '"more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,' but rather, 'that the school authorities had reason to anticipate that the [student’s expression] would substantially interfere with the work of the school or would impinge upon the rights of other students.'"...

Here, an adequate analysis of B.A.P.’s First Amendment claims ... requires a more developed record than is available on a motion to dismiss. ....

Plaintiffs allege that Henson removed B.A.P. from class due to the message on her shirt, Melton did not allow her to return to class because of this message, and both Melton and Henson told B.A.P. she could not wear the shirt to school going forward. The Amended Complaint does not, however, supply specific facts and context about Livingston Academy and the surrounding community at the time Melton and Henson took these actions. Without this context, the Court cannot determine whether Melton and Henson reasonably forecasted that the message on B.A.P.’s shirt would cause substantial disruption or interference with the rights of other students. Accordingly, B.A.P.’s First Amendment claims against Melton and Henson will not be dismissed for failure to state a claim.

Parents Sue Over School's Nondisclosure Of Children's Gender Identity Issues

Suit was filed in a Massachusetts federal district court earlier this month by four parents challenging a school policy to not notify parents of their child’s gender nonconformity or transgender status unless the child consents. The complaint in Foote v. Ludlow School Committee, (D MA, filed 4/12/2022), (full text) alleges that the policy violates parental rights of all the plaintiffs, as well as the free exercise rights of certain of the plaintiffs. It alleges in part:

158. Plaintiffs have sincerely held religious beliefs that all people are to be treated with respect and compassion, and that respect and compassion do not include misrepresenting an individual’s natural created identity as either a male or a female.

159. Plaintiffs have sincerely held religious beliefs that individuals are to speak the truth, including speaking the truth regarding matters of sexual identity as a male or female.

160. Defendants’ actions in excluding Plaintiffs Feliciano and Salmeron from decision making regarding their children’s sexual and gender identity target the Plaintiffs’ beliefs regarding the created order, human nature, sexuality, gender, ethics, and morality which constitute central components of their sincerely held religious beliefs.

Christian Post reports on the lawsuit.

Suit Challenges Maine's Ban On Sunday Hunting

Suit was filed yesterday in a Maine state trial court challenging Maine's ban on Sunday hunting. The complaint (full text) in Parker v. Camuso, (ME Super. Ct., filed 4/27/2022),  contends that the Right To Food Amendment to Maine's constitution (Art. I, Sec. 25) adopted in 2021 invalidates the state's ban on Sunday hunting as applied to individuals who hunt on Sundays to harvest food for themselves and their families. The complaint calls the Sunday hunting ban "a historical and religious anachronism."  Portland Press Herald reports on the lawsuit.

1st Circuit: Employees With Religious Objection To Vaccine Mandate Not Entitled To Injunction

In Together Employees v. Mass General Brigham, Inc., (1st Cir., April 27, 2022), the U.S. 1st Circuit Court of Appeals denied a preliminary injunction to hospital employees who were denied religious exemptions from the hospital's COVID vaccine mandate. The court held that the employees failed to show the irreparable injury necessary to obtain injunctive relief, saying in part:

It is black-letter law that "money damages ordinarily provide an appropriate remedy" for unlawful termination of employment.

European Court Says Switzerland Wrongly Denied Asylum To Pakistani Convert To Christianity

In M.A.M. v. Suisse, (ECHR, April 26, 2022) [decision in French], the European Court of Human Rights ruled in favor of a Pakistani asylee in Switzerland.  The Court's English language press release summarizes the case and its holding:

M.A.M. is a Pakistani national who had converted from Islam to Christianity while in Switzerland, where he had arrived in 2015 and where his asylum request had been rejected.

[T]he ... Court ... held, unanimously, that if the decision to expel the applicant to Pakistan were to be executed there would be a violation of Article 2 (right to life) and Article 3 (prohibition of torture, inhuman or degrading treatment) of the European Convention on Human Rights, in the absence of an assessment of the risk to which the applicant was exposed on account of the overall situation of Christian converts in Pakistan and of his own personal situation. The Court ruled that the assessment by the Swiss authorities of the risk facing the applicant on account of his conversion to Christianity if he were expelled to Pakistan had been insufficient to uphold the rejection of his asylum request....

[Thanks to @sacrareleges for the lead.]

California Court Says "Get" Denial Can Be Basis For Denying Husband Child Custody

The Forward last week reported on a February 7 decision by a California trial court which interpreted 2020 amendments to the state's Family Code (Senate Bill 1141) as allowing a family court to use a husband's refusal to give his wife a Jewish bill of divorce (a "get") as the basis for awarding the wife child custody. Senate Bill 1141 adds "coercive control", defined as "a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty," as the basis for ex parte orders.  That, in turn, creates a rebuttable presumption that awarding child custody to the person exerting coercive control is not in the best interests of the child. The court ruled that denial of a get amounted to coercive control. The full text of the court's decision does not appear to be available online.

CAIR Issues Report On Structural Islamophobia

Yesterday, the Council on American-Islamic Relations (CAIR) released a report titled Still Suspect: The Impact of Structural Islamophobia (full text).The Executive Summary says in part:

The title of this report is Still Suspect: The Impact of Structural Islamophobia. The word structural is significant in the understanding that Islamophobia has seeped into every part of our society. It has made its way into government institutions and the public sphere through laws and policies, political rhetoric, and other manifestations.  For example, in 2021, CAIR received a total of 6,720 complaints nationwide involving a range of issues including immigration and travel, discrimination, law enforcement and government overreach, hate and bias incidents, incarceree rights, school incidents, and anti-BDS/free speech. These complaints clearly indicate that government discrimination and bias continue to have a disproportionate effect on American Muslims and further demonstrate that our communities continue to be viewed with suspicion.

CLS Members Sue University Of Idaho Over No-Contact Orders

Three members of the Christian Legal Society at the University of Idaho filed suit against University administrators on Monday contending that the University's Title IX Policy and Conduct and Discipline Policies, facially and as applied to them violate their free speech, free exercise and due process rights.  The complaint (full text) in Perlot v. Green, (D ID, filed 4/25/2022) alleges that the University's Office of Civil Rights and Investigations issued "no contact" orders against the three students barring the from having contact with another student with whom they had had a discussion about Christian views on sexuality and marriage. ADF issued a press release announcing the filing of the lawsuit.

Reports On 2021 Antisemitic Incidents Released

 The ADL yesterday released its annual Audit of Antisemitic Incidents 2021 (full text). According to the report's Executive Summary:

In 2021, ADL tabulated 2,717 antisemitic incidents throughout the United States. This is a 34% increase from the 2,026 incidents tabulated in 2020 and the highest number on record since ADL began tracking antisemitic incidents in 1979.

Of the 2,717 incidents recorded in 2021, 1,776 were cases of harassment, a 43% increase from 1,242 in 2020, and 853 incidents were cases of vandalism, a 14% increase from 751 in 2020. The 88 incidents of antisemitic assault (a 167% increase from 33 in 2020), involved 131 victims; none of the assaults were deadly.

Meanwhile, last week B'nai B'rith Canada released its 2021 Audit of Antisemitic Incidents in Canada (full text). According to the report:

The 2021 numbers show an increase in antisemitic incidents, with an overall jump of 7.2% in comparison to 2020.

There were some changes in patterns. Covid quarantine restrictions including lockdowns appear to have caused the number of cases of in-person harassment to decline significantly. These cases dropped from 620 in 2020 to 367 in 2021 or a 40.8% decline. However, that lack of direct contact may have been a factor in the jump in cases of online hate.

In fact, online hate has become the preferred method of targeting Jews. B’nai Brith logged 2,093 incidents of online hate, or an increase of 12.3% over the 2020 figures of 1,863 cases....

According to the report, there were 75 incidents of antisemitic violence in 2021, compared to only 9 in 2020. Jewish News Syndicate reports on the Canadian audit. 

New Arizona Law Protects Right To Clergy Visits In Health Care Institutions

Arizona Governor Doug Ducey yesterday signed HB 2449 (full text) which protects the right of residents of assisted living, nursing and hospice facilities to receive visits by clergy even during states of emergency, as well as when a resident's death is imminent. ADF issued a press release on the bill.

USCIRF Issues 2022 Annual Report

Yesterday, the U.S. Commission on International Religious Freedom released its 2022 Annual Report (full text) which documents developments during 2021.  USCIRF issued a press release summarizing the 100-page report, saying in part:

USCIRF recommends 15 countries to the State Department for designation as “countries of particular concern” (CPCs) because their governments engage in or tolerate “systematic, ongoing, and egregious violations.” These include 10 that the State Department designated as CPCs in November 2021: Burma, China, Eritrea, Iran, North Korea, Pakistan, Russia, Saudi Arabia, Tajikistan, and Turkmenistan—as well as five others: Afghanistan, India, Nigeria, Syria, and Vietnam. For the first time ever, the State Department designated Russia as a CPC in 2021, which USCIRF had been recommending since 2017. Regrettably, the State Department removed Nigeria as a CPC....

The ... Report also recommends 12 countries for placement on the State Department’s Special Watch List (SWL) based on their governments’ perpetration or toleration of severe violations. These include three that the State Department placed on that list in November 2021: Algeria, Cuba, and Nicaragua—as well as nine others: Azerbaijan, CAR [Central African Republic], Egypt, Indonesia, Iraq, Kazakhstan, Malaysia, Turkey, and Uzbekistan....

The 2022 Annual Report further recommends to the State Department seven non-state actors for redesignation as “entities of particular concern” ... for systematic, ongoing, egregious violations...: al-Shabaab, Boko Haram, the Houthis, Hay’at Tahrir al-Sham ..., Islamic State in the Greater Sahara ..., Islamic State in West Africa Province ..., and Jamaat Nasr al-Islam wal Muslimin....

... The report also highlights [other] important global developments and trends related to religious freedom.... These include: the COVID-19 pandemic and religious freedom, blasphemy and hate speech law enforcement, transnational repression, religious intolerance in Europe, deteriorating religious freedom conditions in South Asia, and political upheaval that raises religious freedom concerns.

Waiver In Plea Agreement Precludes Appeal Of Ban On Possessing Antisemitic Material

In United States v. Holzer, (10th Cir., April 25, 2022), the U.S. 10th Circuit Court of Appeals held that the appellate waiver provision in defendant's plea agreement precludes him from appealing Special Condition Nine of his supervised release which he contends infringes his freedom of religion, thought and expression. The court explains:

Defendant Richard Holzer was arrested and criminally charged after federal undercover agents determined that Holzer had taken substantial steps towards bombing a synagogue in Pueblo, Colorado. Holzer subsequently pleaded guilty, pursuant to a written plea agreement, to one count of intentionally attempting to obstruct persons in the enjoyment of their free exercise of religious beliefs through force, in violation of 18 U.S.C. §§ 247(a)(2) and (d)(3), and one count of maliciously attempting to damage and destroy, by means of fire and explosives, a synagogue, in violation of 18 U.S.C. § 844(i). The district court sentenced Holzer to a term of imprisonment of 235 months, to be followed by a fifteen-year term of supervised release. The district court also ordered Holzer to comply with eleven special conditions of supervised release, including Special Condition Nine, that prohibits him from acquiring, possessing, or using any material depicting support for or association with antisemitism or white supremacy.

Marine With Religious Objections To COVID Vaccine Is Denied Preliminary Injunction

In Short v. Berger, (D AZ, April 22, 2022), an Arizona federal district court refused to grant a preliminary injunction to a Marine Corps major who was denied a religious exemption from the military's COVID vaccine mandate.  Plaintiff is serving as a staff judge advocate.  According to the court:

To date, the USMC has received over 3,600 requests for a religious exemption from the vaccine requirement but has approved only seven of those requests. It appears that, in all seven cases, the applicant was already in the process of separating from the Marines at the time the request was granted. In contrast, the USMC has approved over 900 medical exemptions, including at least 20 permanent medical exemptions.

The court went on:

In his motion for preliminary injunction, Major Short conspicuously does not assert that separation, loss of training and promotion opportunities, loss of pay, and/or a less-than-honorable discharge constitute irreparable injuries.... Instead, the sole theory of irreparable harm articulated in Major Short’s motion is that “being forced to choose between receiving the injection contrary to his religious beliefs, or defying an order, is itself a denial of free exercise, and directly causes irreparable harm.” ... [T]he tangible employment-related harms that Major Short may suffer ... do not qualify as irreparable under Ninth Circuit law because they can be remedied through retrospective relief....  

As for Major Short’s coercion theory, the Court acknowledges that, in many of the recent military vaccine challenges arising outside the Ninth Circuit, courts have suggested that a service member suffers an irreparable injury the moment he is forced to choose between following his religious beliefs and following an order to be vaccinated.... But however persuasive those cases might otherwise be, this Court must follow Ninth Circuit law and the Ninth Circuit has not adopted—and, indeed, appears to have rejected—this theory of irreparable harm....

The court also concluded that beyond the irreparable injury issue, there was uncertainty as to whether Plaintiff would succeed on his RFRA claim.

Prayer At The 50-Yard Line: SCOTUS Hears Football Coach's Case This Morning

This morning, the U.S. Supreme Court will hear oral arguments in Kennedy v. Bremerton School District. In the case, the U.S. 9th Circuit Court of Appeals upheld a high school's actions against a football coach who insisted on 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.) Amy Howe at SCOTUSblog previews the case, saying in part:

... Kennedy and the school district disagree not only about the legal issues and their implications, but also about many of the facts, including exactly why Kennedy lost his job. Kennedy says he was fired for briefly and privately praying at midfield; Laser and the school district counter that he was suspended for “refusing to stop holding public prayers at the 50-yard line,” which created both pressure for students to join him and “genuine safety concerns for students on the fields because of the spectacle that ensued from his media outreach on praying.”

The SCOTUSblog case page has links to the filings in the case, including the dozens of amicus briefs that have been submitted. Live audio of the oral arguments, which begin at 10:00 AM, will be available at this link. When the transcript and recording of the oral arguments become available later today, I will update this post with links to them.

UPDATE Here are links to the transcript and audio of the oral arguments.

Recent Articles of Interest

From SSRN:

• Nelson Tebbe & Micah Schwartzman, The Politics of Proportionality,  (120 Michigan Law Review 1307 (2022)).
• Guy Baldwin, The Coronavirus Pandemic and Religious Freedom: Judicial Decisions in the United States and United Kingdom, ((2022) Judicial Review).
• Christopher Mills, Blake Davis & Richard Osborne, Is Viability Dicta?, (Regent University Law Review Pro Tempore (2022)).
• John Fee, The Freedom of Speech-Conduct, (109 Kentucky Law Journal 81 (2020-2021)).
• Aaron Tang, Consequences and the Supreme Court, (Northwestern University Law Review, Forthcoming).
• Rachel Rein, Justice Breyer’s Principled Pragmatism and Kagan’s New Living Constitutionalism and Lite Textualism, (Trento Student Law Review (Forthcoming Spring 2022)).

From SSRN (Non-U.S. Law):

• Ruji Auethavornpipat, Hate Speech and Incitement in Malaysia, (in Preventing Hate Speech, Incitement, and Discrimination: Lessons on Promoting Tolerance and Respect for Diversity in the Asia Pacific, 119-158 (2021)).
• Modh Imran, Nikah-Halala in India: Practice, Precept, and Perception, (April 15, 2022).
• John Picton, Lehtimäki v Cooper: Duty and Jurisdiction in Charity Law, ((2021) 84 Modern Law Review 383-393).
• Abdulla Galadari, Ijtihād Holds Supremacy in Islamic Law: Muslim Communities and the Evolution of Law, (Religions 13: 369 (2022)).

Plaintiff In Abuse Case May Discover Psychological Report In Priest's Personnel File

In Harmon v. Diocese of Albany, (NY App. Div., April 21, 2022), a New York state appellate court upheld a trial court's discovery order in a case alleging sexual abuse of  plaintiff by a Catholic priest in the 1980's.  The trial court ordered the Diocese to turn over to plaintiff a memo, a report and correspondence in the priest's personnel file from a psychologist who had been retained by the the Bishop to determine whether it would be appropriate for the priest to resume his ministry and the risk of recidivism. The court also upheld the trial court's order requiring disclosure to plaintiff of the personnel files of 48 former priests whose names are on the Diocese's list of credibly accused clergy. Albany Times-Union reports on the decision.

Denial Of Permission To Build Buddhist Meditation Center Did Not Violate RLUIPA

In Thai Meditation Association of Alabama, Inc. v. City of Mobile, Alabama, an Alabama federal district court dismissed a RLUIPA and 1st Amendment challenge to the city's denial of permission to build a meditation center and related structures in an area zoned residential. Plaintiff is a Buddhist religious organization.  The court said in part:

The Court finds Plaintiffs have shown, for the purposes of summary judgment, the City’s decision effectively deprives them of any viable means by which to engage in protected religious exercise, but the application of the City’s Zoning Ordinance generally does not since the meditation center could be located at a commercially zoned property as of right.... 

... Plaintiffs have not demonstrated the City’s zoning decisions substantially burdened their religious exercise, and even if Plaintiffs’ religious exercise was substantially burdened by the denial of their Applications, the Court finds the decision was the least restrictive means to further the City’s compelling interest in its Zoning Ordinance...

Company Is Not "State Actor" When It Complies With Federal Vaccine Mandate

In Ciraci v. J. M. Smucker Co., (ND OH, April 20, 2022), an Ohio federal district court dismissed a suit by employees of a food manufacturer who claim that their 1st Amendment free exercise rights were infringed when their employer denied them religious exemptions and required them to comply with the Presidential Executive Order mandating COVID vaccinations for employees of federal contractors. The court said in part:

For Plaintiffs to succeed on their Free Exercise Clause ... claim, they need to establish first that Smucker is a state actor.... 

A private entity is not subject to constitutional constraints except in a few limited circumstances, for example: (1) “when the private entity performs a traditional, exclusive public function;” (2) “when the government compels the private entity to take a particular action;” (3) “when the government acts jointly with the private entity.”...

Here, Plaintiffs allege that Defendant is a federal actor because it acted pursuant to “policies, practices, customs, and procedures created, adopted, and enforced under color of federal law.” Without more facts, this allegation is conclusory and does not plead enough facts to place it in any of the exceptions listed above.