Posting Of National Motto In School Does Not Violate Establishment Clause

In JLF v. Tennessee State Board of Education, (MD TN, May 18, 2022), a Tennessee federal district court upheld Tennessee's statute that requires all public schools to post the national motto "In God We Trust" in a prominent location. The law was challenged under the Establishment Clause by the father of a kindergartener on behalf of his daughter whose school has posted the motto as part of a display in the entryway to the school.  The court said in part:

The court finds ... in light of the substantial body of law ... repeatedly concluding in a variety of contexts that the national motto has a secular purpose and that its display does not violate the Establishment Clause, that the Lemon test is of limited utility in this context.... The fact that the display is in a public school does not require enhanced scrutiny.... [T]he posting of the national motto in schools “involves no coercion,” “does not purport to compel belief or acquiescence,” “does not command participation in any form of religious exercise,” “does not assert a preference for one religious denomination or sect over others, and it does not involve the state in the governance of any church.”...

Oklahoma Legislature Bans Most Abortions From Time Of Fertilization

The Oklahoma legislature yesterday gave final passage to HB4327 (full text), a bill that bans abortions beginning at the time of fertilization.  However, it does not ban  Plan B, morning-after pills, or any other type of contraception or emergency contraception. It also contains exclusions for abortions to save the life of the mother in a medical emergency resulting from a physical condition, or in cases of rape, sexual assault or incest, and for procedures aimed at saving the life or health of the unborn child or removing a fetus in case of a miscarriage or ectopic pregnancy. 

Enforcement is solely by private lawsuits for injunctions or damages of not less than $10,000. Suit may be brought against anyone (other than the mother) who performs and abortion, or aids and abets procurement of an abortion, including anyone who reimburses the costs of an abortion through insurance or otherwise. State courts are deprived of jurisdiction over suits to prevent a private person from suing. Civil actions under the law are not covered by the Oklahoma Religious Freedom Act, but the Act should not be construed to authorize a government entity to substantially burden any religious belief. KJRH News reports on the bill.  Earlier this year, Oklahoma enacted a ban on abortions after six weeks of pregnancy. (See prior posting.)

Biden Issues Greetings To Buddhists Celebrating Vesak

Earlier this week, President Biden issued a Statement (full text) extending warm wishes to Buddhists in the United States and around the world celebrating Vesak. The Statement says in part:

This sacred day is a time to reflect on the Buddha’s teachings, including the need to work for peace and justice, recognize our common humanity, respect and preserve the nature that surrounds us, and cultivate humility and compassion.

Vesak was celebrated this year on May 16.

South Carolina Governor Signs Law On Transgender Students In Sports

On Monday, South Carolina Governor Henry McMaster signed  H4608, the Save Women's Sports Act (full text). The law requires school athletic teams to be designated based on biological sex at birth of team members, and provides in part:

(2)    Athletic teams or sports designated for males, men, or boys shall not be open to students of the female sex, unless no team designated for females in that sport is offered at the school in which the student is enrolled.

(3)    Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.

The law applies to interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by a public elementary or secondary school or public postsecondary institution, and to private school teams that compete against public schools. Washington Examiner reports on the new law.

In Israel, Jewish Group Sues Haredi News Site Over Policy On Photos Of Women

Times of Israel reported yesterday that the Israel Religious Action Center, a branch of the Judaism's Reform movement, is suing an ultra-Orthodox Jewish news website in Israel for $100,000(US) in damages because of its policy of digitally blurring faces of females in news photos it posts. Last year, the news site B'hadrei Haredim blurred the faces of female leaders of Jewish movements in a photo of their meeting with Israel's President Isaac Herzog. A number of Orthodox news sites follow this policy in order to observe religious doctrines regarding modesty.

State Court Enjoins Enforcement Of Michigan's Pre-Roe Abortion Ban

In Planned Parenthood of Michigan v. Attorney General of the State of Michigan, (MI Ct. Cl., May 17, 2022), the Michigan Court of Claims issued a preliminary injunction barring enforcement of the state's 1931 pre-Roe abortion ban while a challenge to that law under the Michigan state constitution is being litigated. The 1931 ban contains an exception only for preserving the life of the mother. The court said in part:

After 50 years of legal abortion in Michigan, there can be no doubt but that the right of personal autonomy and bodily integrity enjoyed by our citizens includes the right of a woman, in consultation with her physician, to terminate a pregnancy. From a constitutional standpoint, the right to obtain a safe medical treatment is indistinguishable from the right of a patient to refuse treatment. Based on the due process principles discussed above, the Court finds a substantial likelihood that MCL 750.14 violates the Due Process Clause of Michigan's Constitution.

ACLU of Michigan issued a press release announcing the decision.

U.S. Sanctions On Russia May Lead To Chabad Recovering Assets In Suit Over Return Of Jewish Library Collection

As previously reported, in 2013 the D.C. federal district court held the Russian government and three of its agencies in civil contempt for not complying with a 2010 default judgement ordering it to return two expropriated collections of valuable Jewish religious books and manuscripts to Chasidei Chabad of United States.  Despite objections by the United States government, the court imposed civil sanctions of $50,000 per day until defendants comply with the court's order. Chabad ever since has been seeking Russian assets to satisfy the continually accruing civil sanctions. 

This week, JTA published an interesting analysis suggesting that Ukraine-related U.S. sanctions on Russia may set the stage for Chabad to recover assets:

By late 2021, two entities had emerged as Chabad’s primary targets: Russia’s main development bank, VEB, and Tenex, a subsidiary of a Russian state-run company called Rosatom that sells uranium to nuclear power plants in the United States.

The United States announced sanctions on VEB on Feb. 22 in the lead-up to Russia’s invasion of Ukraine, freezing the bank’s U.S. assets. Its determination that VEB is effectively state wealth has given [Steven] Lieberman [Chabad's attorney] confidence that Chabad can eventually convince the U.S. Treasury Department to turn over VEB assets....

If VEB’s U.S. assets are all tied up in sanctions, Tenex remains entirely unrestricted. That’s because when the Biden administration imposed sanctions on Russia’s energy industry on March 8, it exempted nuclear power, allowing the continued import of Russian uranium. 

“If we’re allowed to seize the assets of Tenex, Chabad will be the only religious organization in the world that has its own nuclear power supply,” Lieberman said, half-jokingly.

City Council's Opening Of Meetings With Lord's Prayer Violates Establishment Clause

In Cobranchi v. City of Parkersburg, (D WV, May 17, 2022), a West Virginia federal district court held that Parkersburg's City Council violated the Establishment Clause by opening each of its meetings with The Lord's Prayer.  The court said in part:

The City Council’s prayer practice most clearly runs afoul of the Fourth Circuit’s concern with identifying the government with a single preferred religious sect. As noted, the Lord’s Prayer is sourced from a biblical translation of the gospel of Matthew, and the version utilized by the town council includes a concluding Christian doxology.... [I]t seems apparent that a reasonable observer to City Council meetings would be aware of the origin, or at the least Christian nature, of the prayer. By continually reciting, over a number of years, the same prayer clearly identifiable with a particular faith, without the opportunity for other faiths to be heard, the City Council impermissibly identified itself with a preferred religion.

FFRF issued a press release announcing the decision.

Christian Flight Attendants Sue After Being Fired For Their Posted Views On LGBTQ Rights

Suit was filed yesterday in a Washington federal district court by two Alaska Air flight attendants who allege, under Title VII and state anti-discrimination laws, illegal religious discrimination, hostile work environment, workplace harassment and retaliation.  The flight attendants were fired after they posted on an internal employee message board their opposition to the Airline's support for the federal Equality Act which would add sexual orientation and gender identity as groups protected against workplace discrimination. According to the complaint (full text) in Brown v. Alaska Airlines Inc., (WD WA., filed 5/17/2022):

3.... Marli and Lacey felt compelled by their Christian faith to post one comment each, asking about the impact of the Equality Act on civil rights for religion and women in the workplace.

4. Alaska Airlines responded to Marli and Lacey’s posts by immediately removing Marli and Lacey from their flight schedules, terminating their employment, and disparaging their religious expression and beliefs as “discriminatory,” “hateful,” and “offensive.”

5. When Marli and Lacey—both union members—faced termination because of their religious practices and beliefs, AFA failed to effectively represent them, ignoring civil rights laws prohibiting both employers and unions from discriminating on the basis of religion.

First Liberty issued a press release announcing the filing of the lawsuit. 

Court Enjoins Application To Christian Employers Of Protections For Gender Transition Services

In Christian Employers Alliance v. U.S. Equal Opportunity Commission, (D ND, May 16, 2022), a North Dakota federal district court, responding to a suit by an employers' organization challenging federal agency interpretations of anti-discrimination requirements, issued a preliminary injunction barring the EEOC from interpreting Title VII to require plaintiff's members to provide insurance coverage for gender transition services. It also enjoined HHS from using Section 1557 of the Affordable Care Act to impose on plaintiff's members who are health care providers an obligation to furnish or facilitate gender transition services or to restrict their speech on gender identity issues. The court said in part:

Defendants argue they will comply with RFRA but cannot predict ahead of time how RFRA will apply to the facts of a particular matter.... Religious freedom cannot be encumbered on a case-by-case basis.... The Alliance maintains if the government interest is to increase access to gender transition services, the government itself could assume the costs for those unable to afford them or obtain them under their employer’s religious objections in the health insurance policies. The Alliance reiterates the government could also provide subsidies, reimbursements, tax credits or deductions. Defendants must demonstrate a compelling interest to the Alliance’s substantial burden and have failed to do so. Determining on a case-by-case basis if a religious exemption should apply is certainly not the least restrictive means.

Bloomberg Law reports on the decision. (See prior related posting.)

Charity Fraud Claims May Proceed Against Christian Apologetics Ministry

In Carrier v. Ravi Zacharias International Ministries, Inc., (ND GA, May 13, 2022), a Georgia federal district court allowed plaintiffs to move ahead with some of their charity fraud claims against RZIM, a Christian apologetics ministry, and the estate of its founder Ravi Zacharias. Plaintiffs claims include ones of unjust enrichment and violation of the state's Fair Business Practice Act. The court describes plaintiffs' claims:

They allege that the Defendants “bilked hundreds of millions of dollars from well-meaning contributors who believed RZIM and Zacharias to be faith-filled Christian leaders,” when “[i]n fact, Zacharias was a prolific sexual predator who used his ministry and RZIM funds to perpetrate sexual and spiritual abuse against women.”... 

Responding to defendants' assertion of the ecclesiastical abstention doctrine as a defense, the court said in part:

The Court will exercise jurisdiction over the Plaintiffs’ claims to the extent they are predicated on misuse-of-funds allegations but not faith-based allegations. At bottom, the faith-based allegations ask the Court to examine the theology and customs of Christianity and Christian apologetics to determine whether Zacharias and RZIM fulfilled the religion’s (and the Plaintiffs’) moral standards. The Court would have to make inherently ecclesiastical determinations as part of this inquiry, such as what it means to be a “faith-filled, moral, and upstanding Christian leader” ..., and whether Zacharias’s alleged sexual misconduct is “diametrically opposed to the teachings of Christianity.”... It is not the role of federal courts to answer these kinds of questions “because that would require defining the very core of what the religious body as a whole believes.”... 

On the other hand, the Court believes that the Plaintiffs’ misuse-of funds allegations do not pose the same First Amendment concerns. Those allegations, and the claims associated with them, raise what amounts to a secular factual question: whether the Defendants solicited funds for one purpose (i.e., Christian evangelism) but instead used those funds for another purpose (i.e., to perpetrate and cover up sexual abuse). That dispute “concerns the [D]efendants’ actions, not their beliefs,” and can be decided according to state statutes and common law principles. 

7th Circuit Hears Oral Arguments In Ministerial Exception Case Involving Catholic School

Yesterday, the US. 7th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Starkey v. Roman Catholic Archdiocese of Indianapolis. In the case, an Indiana federal district court  held that the ministerial exception doctrine bars Title VII retaliation, discrimination and hostile work environment claims as well as state law claims of interference with contractual and employment relationships in a suit brought by the former Co-Director of Guidance at a private Catholic high school. The school refused to renew its contract with Lynn Starkey, who had been employed by the school for nearly forty years, after the school learned of Starkey's same-sex marriage. (See prior posting.)

Louisiana Supreme Court Quashes Charges Against Pastor Who Violated COVID Orders

In State of Louisiana v. Spell (Parish of East Baton Rouge), (LA Sup. Ct., May 13, 2022), the Louisiana Supreme Court quashed bills of information that had been issued against a pastor, charging him with violating the governor's COVID orders early in the pandemic.  The Orders limited gatherings and imposed stay-at-home mandates. The pastor continued to lead in-person worship services in violation of the Orders. The majority said in part:

Orders 30 and 33 contain exemptions allowing certain secular activities to proceed as normal without limiting the number of people permitted in a single space at the same time. In many of those gatherings, the risk of spreading the virus appears no  less prevalent than at a comparable gathering in a church. At the very least, the state offered no evidence proving otherwise. The executive orders grant preferential treatment only to secular conduct. This disparate treatment “strike[s] at the very heart of the First Amendment’s guarantee of religious liberty.”

Chief Justice Weimer, joined by Justice Griffin, dissented, saying in part:

In the absence of an evidentiary record, the majority opinion takes the position that if any exceptions whatsoever were carved out from the orders, then strict scrutiny is warranted, and it was the State’s burden to establish that the orders were narrowly tailored. However, this position ignores the circumstances under which the orders were issued and, instead, holds the emergency orders to a standard of scrutiny that has thus far only been applied by the Supreme Court at a much later stage in the pandemic and at a time with much greater evidentiary knowledge

Justice Crichton filed a concurring opinion.  KAKE News reports on the decision, [Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:

• Bruce P. Frohen, Common Good Constitutionalism and the Problem of Administrative Absolutism, (April 14, 2022).
• Jennifer Lee Koh, Race, Immigration Law, and Christianity: Reflections and Tensions Raised by United States v. Wong Kim Ark, (Political Theology (2022, Forthcoming).
• Kyle Velte, The Precarity of Justice Kennedy's Queer Canon, (13 ConLawNOW 75 (2022)).
• Beatrice Jessie Hill, Look Who's Talking: Conscience, Complicity, and Compelled Speech, (97 Indiana Law Journal 913 (2022)).
• Rachel Morrison, Gender Identity Policy Under the Biden Administration, (23 Federalist Society Review 85 (2022)).
• Ken Levy & Jody Lynee Madeira, Sophistry at the Supreme Court, (The Hill (May 6, 2022)).
• Gabriella Kamran, The Things We Bear: On Guns, Abortion, and Substantive Due Process, (Georgetown Journal of Gender and the Law, Vol. XXIV, 2022).
• Philip Hackney, Written Testimony for the Hearing on Laws and Enforcement Governing the Political Activity of Tax-Exempt Entities, (U.S. Senate Finance Committee Subcommittee on Taxation and IRS Oversight, May 4, 2022).

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

• Alba Ruibal, Using Constitutional Courts to Advance Abortion Rights in Latin America, (International Feminist Journal of Politics 2021).
• Holning Lau & Suzanne A. Kim, Nonmarriage and Choice in South Africa and the United States, (Washington University Law Review, Vol. 99, 2022).
• Mischa Gureghian-Hall, Abortion Rights in International Law: The Inter-American Human Rights System and a Post-Roe v. Wade America, (21 UCLA Undergraduate Law Journal 63 (2022)).

Alabama Enjoined From Enforcing Ban On Medical Treatments For Transgender Minors

In Eknes-Tucker v. Marshall, (MD AL, May 13, 2022), an Alabama federal district court issued an injunction pending trial of  the portion of the Alabama Vulnerable Child Compassion and Protection Act that restricts transgender minors from being treated with puberty blockers and hormone therapies. The court said in part:

Parent Plaintiffs have a fundamental right to direct the medical care of their children. This right includes the more specific right to treat their children with transitioning medications subject to medically accepted standards. The Act infringes on that right and, as such, is subject to strict scrutiny. At this stage of litigation, the Act falls short of that standard because it is not narrowly tailored to achieve a compelling government interest. Accordingly, Parent Plaintiffs are substantially likely to succeed on their Substantive Due Process claim,

The court also found that parents were substantially likely to succeed on their equal protection challenge because "discrimination based on gender-nonconformity equates to sex discrimination." GLAD and other advocacy groups representing plaintiffs issued a press release announcing the decision.

Space Force Captain With Religious Objections To Vaccine Mandate Is Denied Injunction

In Creghan v. Austin, (D DC, May 12, 2022), the D.C. federal district court refused to grant a preliminary injunction to a captain in the U.S. Space Force who has religious objections to the military's COVID vaccine mandate,  The military refused to grant her a religious accommodation, but has not taken steps to separate from the military. The court said in part:

As the Court explained in a similar case, requests for religious exemptions from military-mandated medical requirements “raise particularly difficult questions that implicate a storm of colliding constitutional interests.” Navy SEAL v. Austin, 2022 WL 1294486, at *1 (D.D.C. Apr. 29, 2022). Although this case is much closer than Navy SEAL, the Court remains concerned that it lacks the competence to “evaluate the merits of military [epidemiological and tactical] expertise” or to “weigh technical issues of public health and immunology” necessary to resolve the case. Id. at *5. Justiciability is all the more uncertain given the unfixed, evolving science on which this vaccination mandate is based. These concerns permeate the merits of Plaintiff’s claims as well.

Intervenors Say USAF Senior Leaders Told To Deny All Religious Exemptions To Vaccine Mandate

In a Memorandum In Support of a Preliminary Injunction (full text) filed on behalf of 230 intervening plaintiffs in Doster v. Kendall, (SD OH, filed 5/3/2022), plaintiffs allege:

The 2021 CORONA Conference was held at  the United States Air Force Academy. (Id.) Whistleblowers have reported that all Chaplains and all persons other than those MAJCOM commanders responsible for adjudicating accommodation requests to the Air Force’s vaccine mandate, were asked to leave the room, so that the Secretary of the Air Force’s expectations concerning religious accommodation requests could be communicated to Air Force senior leaders....  Upon information and belief, the Secretary of the Air Force and/or his designees, communicated that no religious accommodations could or should be approved for anyone who would be remaining in the Department of the Air Force....

As of the date of the Intervening Complaint, the Department of the Air Force has received thousands of requests for religious accommodation, has only approved 42 – all of them at the end of their careers, who were otherwise eligible for an administrative exemption, and has denied 5,129 initial requests; and 1,692 final appeals, for a total of 6, 821 denials. In the meantime, the Air Force currently has granted 1,013 medical exemptions, and 1,273 administrative exemptions....  As of April 12, the Air Force has administratively separated 261 active-duty Airmen.... The granting of more than two thousand medical and administrative exemptions belies any assertion that vaccination is mission-critical and that no exemptions can be granted....

(See prior related posting.) Coffee or Die Magazine reports on the filing.

Tribe Is Required Party In Challenge To Directive On Repatriation of Native American Remains

 In Weiss v. Perez, (ND CA, May 10, 2022), a California federal district court dismissed a suit brought by a San Jose State University anthropology professor who objects to the University president's directive that denied her access to Native American remains housed at the University. The directive was issued to prepare the remains for repatriation to the Muwekma Ohlone Tribe. Plaintiff, Prof. Elizabeth Weiss is an opponent of repatriation. The court held in part:

The Court finds that the Muwekma Ohlone Tribe is a required party under Rule 19 to adjudication of Professor Weiss’s claims about the Directive. Because the Tribe has sovereign immunity from suit and thus cannot be joined, Professor Weiss’s claims regarding the Directive must be dismissed with prejudice. The Court will, however, give Professor Weiss leave to amend her complaint as to her allegations about retaliation in the form of restricting access to and use of non-Native American remains and retaliation for her protected speech as it may pertain to her teaching and curational responsibilities.

Certiorari Filed On Whether Falun Gong Tables Are Protected Under FACEA

A petition for certiorari (full text) was filed yesterday in Zhang Jingrong v. Chinese Anti-Cult World Alliance, Inc., (Docket No. 21-1429, filed 5/10/2022). In the case, the U.S. 2nd Circuit Court of Appeals held that five tables on the sidewalk in Flushing, Queens, New York where Falun Gong adherents passed out flyers and displayed posters were not a "place of religious worship" under the Freedom of Access To Clinics Entrances Act that prohibits intentionally injuring, intimidating, or interfering with anyone who is exercising 1st Amendment religious freedom rights “at a place of religious worship.” (See prior posting.) [Thanks to James A. Sonne for the lead.]

Court Enjoins Part Of School's Policy On Transgender Students' Preferred Names

Ricard v. USD 475 Geary County, KS School Board, (D KS, May 9, 2022), is a suit brought by a Christian middle school math teacher who objects on religious grounds the school's policy of requiring teachers to refer to transgender students by their preferred names and pronouns, and requiring teachers not to disclose those names and pronouns to parents without the student's consent. A Kansas federal district court enjoined the school district from from disciplining the teacher for referring to a student by the student’s preferred name and pronouns in communications with the student’s parents in the regular course of the teacher's duties. The parties reached an agreement on the other aspect of the school's policy. The teacher would use students' preferred names, but not their preferred pronouns.