Religion Clause

Tuesday, June 07, 2022

NY School Districts Not Required To Provide Bussing For Religious Schools On Days Public Schools Are Closed

In In the Matter of United Jewish Community of Blooming Grove, Inc. v. Washingtonville Central School District, (NY App., June 2, 2022), a New York state appellate court held that under New York statutory law, school districts are not required (but are permitted) to provide bus transportation to non-public school students on days when those schools are in session but public schools are closed. The suit was brought seeking to require the school district to provide transportation to students in Jewish schools in Kiryas Joel on all days when those schools were open.

Monday, June 06, 2022

Certiorari Denied In Wisconsin Parochial School Bussing Case

The U.S. Supreme Court today denied review in St. Augustine School v. Underly, (Docket No. 21-1295, certiorari denied 6/6/2022). (Order List). In the case, the U.S. 7th Circuit Court of Appeals sent back to the district court a suit challenging Wisconsin's refusal to provide bus transportation to students at St. Augustine School. The decision was based on a Wisconsin statute that requires school districts to bus private school students, but limits the obligation to only one private school affiliated with the same religious denomination or sponsoring group in each attendance district. The case has a complicated litigation history. (See prior posting.)

Friday, June 03, 2022

Oversight Report Issued On Philadelphia Archdiocese Compensation Of Abuse Claimants

Yesterday, the Catholic Archdiocese of Philadelphia released the Final Report (full text) of the Oversight Committee monitoring the Archdiocese's Independent Reconciliation and Reparations Program. The Program was designed to to provide compensation and support to victims of childhood sexual abuse committed by clergy of the Archdiocese. The Report says in part:

Of the 623 claims filed, 619 received final determination letters. Three of the 623 claims filed remain "on hold" as a result of ongoing criminal investigations of these claims, and one claim was withdrawn by the Claimant prior to determination.

Of the 619 Claimants who received determination letters, 475 were determined to be eligible for compensation, while 144 were determined to be ineligible.

Of the 475 eligible claims, as of the writing of this report:

438 Claimants (more than 90% of those eligible) have accepted their offers and been paid a combined total of $78,465,000;
one claim was withdrawn after the determination was made;
fifteen claims missed the acceptance deadline....; and
twenty-one offers (totaling $2,040,000) were rejected by the Claimants....

...We also confirmed that the Archdiocese reports all allegations of criminal conduct to law enforcement regardless of when the conduct is alleged to have occurred or the status of the alleged perpetrator. The Archdiocese does not make a determination of an allegation's potential viability for prosecution, but rather leaves that determination to the law enforcement authorities with appropriate jurisdiction over the allegation.

Catholic Philly has additional details. The victim advocacy organization SNAP also issued a press release reacting to the Report.

High School Rules Barring Religious Requirements For Christian Student Organization Leaders Is Upheld

In Fellowship of Christian Athletes v. San Jose Unified School District Board of Education, (ND CA, June 1, 2022), a California federal district court upheld a high school's non-discrimination policy for recognized student groups that precluded Fellowship of Christian Athletes from requiring its leaders to agree with and live in accordance with the group's Christian beliefs. In rejecting challenges to the policy, the court said in part:

[P]olicies meant “to ensure that the school’s resources are open to all interested students without regard to special protected classifications” are similar to the antidiscrimination laws intended to ensure equal access that the Supreme Court has concluded are viewpoint and content neutral.... The fact that the Policy allows clubs to set “non-discriminatory criteria” but not criteria based on religion, sexual orientation, or other protected classifications does not mean the Policy aims at the suppression of speech....

Plaintiffs have not shown that the Policy, as written, clearly violates their right to free exercise of their religion. The District’s Policy applies to all ASB student clubs. It does not “impose special disabilities” on Plaintiffs or other religious groups, but instead affects those groups in ways incidental to the general application of the Policy....

COVID Testing Requirement Survives Free Exercise Challenge

In Villareal v. Rocky Knoll Health Care Center, (ED WI, June 1, 2022), a Wisconsin federal district court refused to allow a nurse who objected on religious grounds to a COVID testing requirement of a county-run nursing center to file an amended complaint. The nurse's employment had been terminated her for refusing to comply with the center's testing policy. The court said in part:

Rocky Knoll’s COVID-19 testing policy is neutral. It does not refer to a religious practice.... Nor is its purpose to suppress “religion or religious conduct.”...

It is also generally applicable: Rocky Knoll’s policy does not prohibit religious conduct while permitting other conduct that may undermine its interest in preventing the spread of COVID-19 in its facility and ensuring the safety of its residents and employees....

The court also held that plaintiff cannot recover damages or obtain injunctive relief in federal court for a claim under the right of conscience provisions of the Wisconsin constitution.

Thursday, June 02, 2022

Parents Can Move Ahead With Challenge To School's Transgender Transition Policy

In T.F. v. Kettle Moraine School District, (WI Cir. Ct., June 1, 2022), a Wisconsin state trial court held that parents could proceed with their action challenging a school district's policy to honor minor students’ requests to transition to a different gender identity at school without parental consent. One set of plaintiffs withdrew their child from the school after the school insisted on using the name and pronouns favored by the student. The court held that they could still proceed with a claim for nominal damages. As to other plaintiffs whose children were in the school but were not presently impacted by the policy, the court said in part:

[Parents] need not wait for potential harm from Kettle Moraine’s policy to occur for their children before they are entitled to seek declaratory relief on whether the policy violates their parental rights.

ADF issued a press release announcing the decision.

2nd Circuit: Rabbinical College's Zoning Challenge Is Not Ripe For Review

In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, New York, (2d Cir., May 27, 2022), the U.S. 2nd Circuit Court of Appeals affirmed the dismissal of a suit challenging two Village zoning laws that prevent plaintiffs from building a rabbinical college on its 100-acre property. The court held that the challenge to the laws fails on ripeness grounds. It concluded that the Village Board of Trustees' refusal to consider plaintiffs' petition to repeal completely the two laws cannot be considered to be the Board's final decision on the particular building plans, since the petition did not set out any details of the plans. It also concluded that the U.S. Supreme Court's decision last year in Pakdel v. City and County of San Francisco did not change the ripeness rules for challenging a zoning denial. (See prior related posting.) Rockland/Westchester Journal News reports on the 2nd Circuit's decision.

Louisiana Legislature Clarifies Child Sex-Abuse Look-Back Window

The Louisiana legislature yesterday gave final passage to HB402 (full text). The law clarifies that the 3-year look-back window to bring child sex abuse claims that was enacted last year applies to sex abuse claims, no matter how long ago they arose. As explained by Louisiana Illuminator:

[O]ver the past year, the Catholic Church has repeatedly argued in Louisiana courts that some of the claims being brought under the lookback window should be thrown out because the window only applies to abuse that has happened since 1993. Attorneys for the church said last year’s law is restrictive because it references an old statute regarding child abuse that wasn’t enacted until that year....

HB402 eliminates that ambiguity.

Wednesday, June 01, 2022

Suit Challenges California Group's Ethnic Studies Curriculum As Antisemitic

Last month, suit was filed in a California federal district court seeking to enjoin the Los Angeles public schools from using an ethnic studies curriculum which plaintiffs contend is antisemitic. The complaint (full text) in Concerned Jewish Parents and Teachers of Los Angeles v. Liberated Ethnic Studies Model Curriculum Consortium, (WD CA, filed 5/12/2022), alleges that defendants oppose the broad Ethnic Studies Curriculum approved by the state of California, and instead are attempting to convince schools to teach a curriculum that focuses only on Black Americans, Chicano/Latinos, Native Americans, and Asian American/Pacific Islanders. The complaint alleges in part:

This case is brought to compel public disclosure of, and to enjoin, Defendants’ efforts to insert into the Los Angeles public school curriculum, overtly racist as well as antisemitic teaching material which, as its authors intend, discriminates against a segment of California residents on the basis of their religious beliefs and their national origin—namely American and Middle Eastern-Americans Jews who embrace their religion’s foundational belief in Zionism....

The 55-page complaint alleges that use of the Liberated Ethnic Studies Model Curriculum violates plaintiffs' rights under the 1st and 14th Amendments, Title VI of the Civil Rights Act of 1964 and the California Education Code. Among other relief, it seeks an injunction barring the Los Angeles Unified School district from:

including any language, in any teaching materials, asserting that Zionism is not a Jewish belief; denouncing the Jewish belief in the land of Israel as the land promised by God to the Jewish people, or the Jewish belief in Zionism, or asserting that the State of Israel, as the Nation-State of the Jewish people, is illegitimate, or asserting as a fact that the Jewish State is guilty of committing such horrific crimes against others as ethnic cleansing, land theft, apartheid or genocide, or that the Jewish people are not indigenous to the land of Israel or to the Middle East, or denying the State of Israel the right to self-defense; and/or denying the historical or religious connection between the Jewish people and the land of Israel....

The Deborah Project's website has more on the lawsuit.

7th Circuit Hears Oral Arguments On Reinstatement Of Doctor Who Refuses Vaccination On Religious Grounds

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Halczenko v. Ascension Health, Inc., (Docket No. 22-1040, 5/31/2022). In the case, an Indiana federal district court last December (full text of district court opinion) denied a preliminary injunction to a pediatric intensive care doctor who was denied a religious exemption from a hospital's COVID vaccination requirement and was placed on unpaid leave. The court held that plaintiff had not shown irreparable injury necessary to obtain an injunction. Compensatory and other relief will be available if he ultimately prevails. Bloomberg Law reports on the oral arguments, saying in part:

One judge during oral argument ... homed in on the speculative nature of Paul Halczenko’s alleged irreparable harm from not getting rehired by Ascension St. Vincent Hospital right away—that not practicing medicine would cause his skills to atrophy and cost him his career.

Other members of the three-judge panel—all of whom were appointed by President Donald Trump—focused on apparent factual and legal shortcomings in the doctor’s bid for a preliminary injunction against Ascension Health Inc. and the hospital.

Tuesday, May 31, 2022

Certiorari Denied In Church's Challenge To Colorado COVID Restrictions

The U.S. Supreme Court today denied review in Community Baptist Church v. Polis, (Docket No. 21-1328, certiorari denied 5/31/2022). (Order List). In the case, the U.S. 10th Circuit Court of Appeals affirmed a district court's denial of a preliminary injunction in a free exercise challenge by two churches and one of their pastors to COVID restrictions imposed by the state of Colorado. It similarly affirmed the dismissal of a challenge to the federal government's award of COVID relief aid to the state. (See prior posting.)

Class Action Filed To Challenge Air Force Vaccine Mandate

Another lawsuit has been filed by religious objectors challenging the military's COVID vaccine mandate. Brought in a Texas federal district court by nine members of the Air Force as a class action on behalf of all Air Force members with religious objections to the COVID vaccine, the complaint (full text) in Spence v. Austin, (ND TX, filed 5/27/2022), alleges violations of plaintiffs' rights under the 1st Amendment and RFRA. It alleges in part:

Defendants have mandated that all members of the Air Force receive a COVID-19 vaccine, or be involuntarily separated. In theory, Defendants offer medical, administrative, and religious accommodations to that mandate. But in practice, only servicemembers with medical or administrative reasons for an exemption from the mandate are accommodated. Religious accommodation requests (“RARs”) are universally denied unless the requester is already imminently leaving the Air Force.

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

Monday, May 30, 2022

President's Memorial Day Proclamation

Today is Memorial Day. Last week, President Biden issued a Proclamation titled Prayer for Peace, Memorial Day 2022 (full text) which reads in part:

In honor and recognition of all of our fallen service members, the Congress, by a joint resolution approved May 11, 1950, as amended (36 U.S.C. 116), has requested that the President issue a proclamation calling on the people of the United States to observe each Memorial Day as a day of prayer for permanent peace and designating a period on that day when the people of the United States might unite in prayer and reflection. The Congress, by Public Law 106-579, has also designated 3:00 p.m. local time on that day as a time for all Americans to observe, in their own way, the National Moment of Remembrance.

Virginia Governor Signs Act Broadly Defining "Religion" In Civil Rights Laws

On Friday, Virginia Governor Glen Younkin signed House Bill 1063 (full text) which defines "religion" as used in the state's anti-discrimination laws as:

"Religion" means all aspects of religious observance, practice, or belief.

ADF issued a press release on the new law.

Washington's State Employee Vaccine Mandate Upheld

In Pilz v. Inslee, (WD WA, May 27, 2022), a Washington federal district court upheld a Proclamation by Washington's governor that requires health care, education, and state-agency workers to be vaccinated against COVID. Among other challenges in a suit brought by 100 state employees, plaintiffs claim the Proclamation infringes on religious beliefs that conflict with vaccination in violation of the Free Exercise clause. The court said in part:

[T]he Proclamation is in no way directed at any religious exercise and, at most, has an incidental impact on some state employees with particular religious beliefs. Therefore, the Court finds that the Proclamation is neutral and generally applicable. The Proclamation is accordingly subject to rational basis review and must be upheld if it is “rationally related to a legitimate governmental purpose.”

Sunday, May 29, 2022

6th Circuit: Suit Over Marriages By Clergy Ordained Online Can Move Ahead In Part

In Universal Life Church Monastery Storehouse v. Nabors, (6th Cir., May 27, 2022), the U.S. 6th Circuit Court of Appeals allowed claims against a portion of the original defendants to move ahead in the Universal Life Church's challenge to a Tennessee law that prohibits persons receiving online ordination from solemnizing marriages. Various defendants asserted standing and sovereign immunity defenses. Summarizing its holding, the court said in part:

No plaintiff has standing to seek relief against Governor Lee, Attorney General Slatery, District Attorney General Helper, or County Clerks Crowell, Anderson, and Knowles.... As a result, those portions of the district court’s preliminary injunction that purport to bind [them] ... are VACATED. By contrast, however, we AFFIRM the district court’s determination that plaintiffs have standing to sue District Attorneys General Dunaway, Pinkston, and Jones, along with County Clerk Nabors. We also AFFIRM the district court’s denial of these officials’ sovereign immunity at the motion-to-dismiss stage, and so we do not disturb those portions of the preliminary injunction binding [them].... Last, we REMAND what remains of this suit to the district court for further proceedings consistent with this opinion.

Friday, May 27, 2022

Ecclesiastical Abstention Doctrine Does Not Apply To Dispute Over Church's Form Of Governance

In Bogle v. Sewell, (MI App., May 26, 2022), a Michigan state appellate court held that the ecclesiastical abstention doctrine did not preclude the trial court from deciding whether 2011 and 2019 amendments to the bylaws of Evangel Echos Church of the Air validly changed the church from a membership-based to a directorship-based governance. The court said in part:

Whether the Church was organized on a membership basis or a directorship basis was not an ecclesiastical question—it was a corporate law question. To answer this question, the trial court needed to look no further than the Church’s Articles of Association and the MNCA. Resolving the parties’ dispute did not require the trial court to interpret any of the Church’s religious doctrine or to pass judgment on what it believed to be the form of corporate governance most in line with the Church’s discipline or values. It simply required the trial court to apply Michigan statutory law against the language of the Articles of Association

Michigan City Revises Policy On Hijab In Booking Photos

CAIR-Michigan announced yesterday that a settlement has been reached with the city of Ferndale in a suit charging the Ferndale police department with forcibly removing a Muslim woman's hijab for a booking photo after her arrest:

... Ferndale and Bowe have reached a full and satisfactory settlement of this matter that involved the city instituting new policies allowing Muslim women to maintain their hijab when a booking photo is taken and prohibiting cross-gender searches in the absence of an emergency as well as a monetary settlement.