11th Circuit Denies En Banc Review In Conversion Therapy Case

In Otto v. City of Boca Raton, Florida, (11th Cir., July 20, 2022), the U.S. 11th Circuit Court of Appeals, by a vote of 7-4,, denied an en banc rehearing in a case in which a panel decision of the court struck down a conversion therapy ban.  (See prior posting). Concurring and dissenting opinions spanning 110 pages accompanied the brief order denying review. Judge Grant, joined by Judges Branch and Lagoa filed an opinion concurring in the denial, saying in part:

The perspective enforced by these local policies is extremely popular in many communities. And the speech barred by these ordinances is rejected by many as wrong, and even dangerous. But the First Amendment applies even to—especially to—speech that is widely unpopular....

Today’s dissenters decry the result of the panel decision—namely, that speech they consider harmful is (or may be) constitutionally protected. But to reach their preferred outcomes, they ask us to ignore settled First Amendment law

Judge Jordan joined by Judge Wilson, and joined in part by Judges Rosenbaum and Pryor, said in part:

[T]he panel majority in this preliminary injunction appeal ignored the clear error standard of review—never acknowledging or applying it —and substituted its own factual findings for those of the district court on important issues.

Judge Rosenbaum joined by Judge Pryor filed a dissenting opinion, saying in part

By incorrectly labeling talk therapy mental-healthcare treatments as mere “conversation” and “not medical at all,” the panel opinion necessarily subjects to First Amendment strict scrutiny all government regulations that require licensed mental-healthcare professionals to comply with the governing substantive standard of care in administering talk therapy. And that scrutiny rings the death knell for any such regulation.

San Francisco Permit Requirement For Park Church Services Enjoined

In Stewart v. City and County of San Francisco, California, (ND CA, June 22, 2022), a California federal district court issued a preliminary injunction barring enforcement of a provision in the San Francisco Park Code requiring a permit for any religious event held in a public park involving 50 or more persons. The court found the provision to be a content-based restriction that triggers strict scrutiny, and concluded that it violates free speech and free exercise protections. However the court upheld a provision requiring a permit for events utilizing sound amplification equipment. Plaintiffs hold their weekly church services in public parks.

DOJ Sues City For Failure To Accommodate Seventh Day Adventist Employee

A Title VII lawsuit was filed last week by the Justice Department on behalf of a newly-hired Seventh Day Adventist detention officer against the city of Lansing, Michigan. The complaint (full text) in United States v. City of Lansing, Michigan, (WD MI, filed 7/15/2022) alleges that the city "failed to provide [the officer] with a reasonable accommodation or to show undue hardship and terminated her employment because she could not work from Friday sundown through Saturday sundown due to her religious observance of the Sabbath..." The Justice Department issued a press release announcing the filing of the lawsuit.

Non-Profits Are Seeking IRS Classification As "Churches"

Both Baptist News Global and ProPublica have recently published lengthy investigative articles on the growing number of non-profit entities that have sought classification by the IRS as a "church" or "association of churches" or an "integrated auxiliary of a church." this exempts them from filing the annual Form 990 required of other non-profits. Form 990 disclose income, expenditures and compensation of officers, directors and key employees.

Britain's Sexual Offenses Act Now Outlaws Child Sexual Abuse By Religious Instructors

Britain's Sexual Offenses Act 2003 (Secs. 16-19) criminalizes abuse of a position of trust by engaging in sexual activity with a child or causing a child to witness sexual activity.  As reported by Law & Religion UK, amendments to the Act which expand the definition of "position of trust" came into effect on June 28. The Act now defines "position of trust" to include any person who knowingly coaches, teaches, trains, supervises or instructs on a regular basis in a sport or a religion. Religion is defined to include

(a) a religion which involves belief in more than one god, and (b) a religion which does not involve belief in a god.

Southwest Flight Attendant Fired Over Anti-Abortion Social Media Posts Wins $5.1M Verdict

One Mile At A Time reports on a jury verdict handed down last Thursday:

After a roughly five year legal battle, a former Southwest flight attendant has been awarded damages over being fired from the airline. Southwest claims that the flight attendant violated the company’s social media policy with her public and offensive anti-abortion posts, and she was also accused of harassing the union president, after union dues were used to attend a rally in Washington DC.

The article explains: 

 A federal jury in Texas has sided with the former Southwest flight attendant, arguing that she was unlawfully discriminated against for her sincerely held religious beliefs. Furthermore, the jury found that the union did not fairly represent her and retaliated against her for expressing her views.

If this stands, Carter will be awarded $5.3 million, including $4.15 million from Southwest Airlines and $1.15 million from Transportation Workers Union of America (TWU) Local 556. This consists primarily of punitive damages, but also consists of some back pay from the airline.

Recent Articles of Interest

From SSRN:

• Adnan Zulfiqar, The Dominion of Rights, the Resistance of Duties, (Rutgers Journal of Law and Religion, Vol. 22, No. 3, 2022).
• Francis Beckwith, Separated at Baptism: What the Mortara Case Can Teach Us About the Rejection of Natural Justice by Integralists and Progressives, (Brigham Young University Law Review, Vol. 47, No. 4, 2022).
• Dov Fox, Medical Disobedience, (July 2, 2022).
• Cometan, Recognition of Religion or Belief (RoRB), (June 29, 2022).
• Intisar A. Rabb, Metacanons: Comparative Textualism, (May 2022).
• James Diamond, An Uncomfortable Truth: Law as a Weapon of Oppression of the Indigenous Peoples of Southern New England,(Roger Williams University Law Review, Vol. 27, No. 2, 2022).
• Rosemary Teele Langford & Malcolm Edward Anderson, Charity Trustees: Governance Duties and Conflicts of Interest, ((2022) 28 (7) Trusts and Trustees).

From SSRN (Islamic Law):

• Intisar A. Rabb, Legal Canons—In the Classroom and in the Courtroom or, Comparative Perspective on the Origins of Islamic Legal Canons, 1265–1519, (Villanova Law Review, Vol. 66, No. 831-63, 2021).
• Intisar A. Rabb, Enforcement and Punishment in Medieval Islamic Law, (in Cultural History of Crime and Punishment in the Medieval Age (Sarah McDougall, Karl Shoemaker eds., Bloomsbury 2022) [Forthcoming]).
• Sandra Antoniazzi, Islamic Banks and the European Banking System: Critical Profiles and Law, (European Banking Institute Working Paper Series No 125, 2022).
• Adnan Zulfiqar, The Immorality of Incarceration: Between Jāvēd Aḥmad Ghāmidī and Angela Y. Davis, (Journal of Islamic Law [Harvard] (2022)).

From SmartCILP:

• Christian Zendri, Book Review. Erasmo da Rotterdam, Prefazioni ai Vangeli, 1516–1522, edited by Silvana Seidel Menchi, [Abstract], 61 American Journal of Legal History 335-337 (2021).

Court Enjoins DOE and EEOC From Enforcing LGBT Anti-Discrimination Interpretations Because Of Procedural Issues

 In State of Tennessee v. U.S. Department of Education, (ED TN, July 15, 2022), a Tennessee federal district court enjoined the Department of Education and the EEOC from enforcing against 20 states that are plaintiffs in the case documents interpreting Title IX and Title VII as including prohibitions on discrimination on the basis of sexual orientation or gender identity. According to the court:

Plaintiffs have demonstrated that they are likely to succeed on their claim that Defendants’ guidance documents are legislative rules and that the guidance is invalid because Defendants failed to comply with the required notice and comment procedures under the APA.

CNN reports on the decision.

Texas Sues Feds Over Abortion Guidance Given To Hospital Emergency Rooms

On Thursday, the state of Texas filed suit against the Biden administration challenging HHS's guidance to hospitals that the Emergency Medical Treatment & Labor Act requires hospital emergency rooms to perform an abortions when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition. The complaint (full text) in State of Texas v. Becerra, (ND TX, filed 7/14/2022) alleges in part:

The Biden Administration’s response to Dobbs v. Jackson Women’s Health Org.... which ended the terrible regime of Roe v. Wade, is to attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic.

The suit contends that the guidance exceeds statutory authority and violates various constitutional provisions. The Texas attorney general issued a press release announcing the filing of the lawsuit.

Wire Fraud Indictment Did Not Violate RFRA

In United States v. Stevens, (SD FL, July 12, 2022), a Florida federal district court adopted the magistrate's lengthy opinion of (May 2, 2022) and refused to dismiss a money laundering and wire fraud indictment against a religious psychic. The fraud victim, Ilena Torruella, believed that she was cursed because she possessed millions of dollars of "dirty" family money. Defendant offered to break the curse by "cleansing" the money and showing God that the victim was not attached to it. According to the court:

The key point Defendant relies upon to seek dismissal of this indictment is that Stevens never expressly promised to return Torruella’s money and Torruella never directly asked whether it would be returned before turning over her funds to Stevens.... Without an express agreement or promise to return the money, Stevens concludes that Torruella received exactly what she bargained for. The money was cleansed when Torruella gave it away.

Defendant contends that the indictment infringes her free exercise rights under RFRA and the 1st Amendment. However the magistrate's opinion rejects that contention, saying in part:

[Stevens] does not allege that any religious belief or practice of hers requires her to convert other people’s money for her benefit on false pretenses.... She instead argues that in general terms her Roma beliefs are burdened by the prosecution of this case based on her inability to practice her spiritual healing practices without government intervention. But that is too attenuated under RFRA because there are plenty of alternatives for Stevens to practice her religion....

The court concluded:

The jury must, of course, determine that her conduct was carried out with fraudulent intent. Defendant may present a defense that she was simply pursuing her religious practices, which may be antithetical with criminal intent. If the jury finds her belief to be sincere, she may be acquitted. But that is a matter for trial, not for a motion to dismiss.

Volokh Conspiracy has additional excerpts from the decision.

National Class Action and TRO Approved For Air Force Members With Religious Objections To COVID Vaccine

In Doster v. Kendall, (SD OH, July 14, 2022), an Ohio federal district court certified a national class action on behalf of all active duty and active reserve members of the Air Force and Space Force who have submitted a request for a religious accommodation from the military's COVID vaccine requirement since September 1, 2021, who were confirmed as having had a sincerely held religious belief by Air Force Chaplains, and have had their request denied or have not had action on it. The court went on to issue a 14-day temporary restraining order against enforcing the vaccine mandate against any class member. According to the court

As of June 6, 2022, the Air Force had received 9,062 religious accommodation requests, granting 86 of those requests while denying 6,343 requests....  Following such denials, the Air Force had received 3,837 appeals from Airmen whose initial religious accommodation requests were denied.... As of June 6, 2022, the Air Force has granted only 23 of those appeals, denying 2,978....

Fox19 reports on the decision.

UPDATE: On July 27, the court issued a class-wide preliminary injunction. (Full text of order.) Fox19 reports on the decision.

House Hearing On Impact of Dobbs Decision

On July 13, the House Committee on Oversight and Reform held a hearing on The Impact of the Supreme Court’s Dobbs Decision on Abortion Rights and Access Across the United States. Video of the full hearing and written transcripts of the prepared testimony of six witnesses who appeared before the Committee are available here at the Committee's website.

Michigan Governor Will Refuse To Extradite For Abortion Charges

Michigan Governor Gretchen Whitmer yesterday signed an Executive Order (full text) which provides in part:

1. The Office of the Governor will decline to assist with or effectuate the extradition of persons to or from Michigan when the charged criminal conduct is the provision of, receipt of, securing of, or assistance with reproductive health-care services, including abortion.

2. Consistent with the requirements of Article IV, Section 2, Clause 2 of the U.S Constitution, paragraph 1 does not apply when the person who is the subject of the request for arrest or surrender was physically present in the requesting state at the time of the commission of the alleged offense and thereafter fled from that state.

A press release from the Governor's office explains the motivation for the Executive Order:

Today, Governor Gretchen Whitmer signed an executive order refusing to extradite women who come to Michigan seeking reproductive health care. It also protects providers of legal abortion in Michigan, who will not have to fear being extradited for prosecution in another state for offering reproductive health care.

Currently, there are laws and legislative proposals across the country supported by the GOP that would make it felony for a woman to seek abortion care, and for a doctor to provide it.... Proposals also exist to punish a woman who decides to cross state lines to obtain an abortion. 

Jewish School Lacks Standing In Suit Claiming Religious Discrimination

In Ateres Bais Yaakov Academy of Rockland v. Town of Clarkston, (SD NY, July 12, 2022), a New York federal district court dismissed for lack of standing a suit under RLUIPA and federal civil rights laws brought by an Orthodox Jewish school ("ABY") against a New York town and a citizens group.  The suit alleged that the defendants, motivated by discrimination against Orthodox Jews, prevented the school from closing the purchase of a building owned by Grace Baptist Church. The court said in part:

... ABY fails to sufficiently establish that its claims based on the denial of the building permit application are ripe such that it suffered an “actual, concrete injury” because the ZBA never issued a final decision on ABY’s appeal and variance application. In other words, the ZBA’s nonfinal decision here does not “give rise to an injury that is sufficiently concrete and particularized to satisfy Article III.”...

... ABY fails to sufficiently allege how the Town Defendants’ conduct “constrained or influenced” GBC’s decision to stop agreeing to amend the contract and to terminate it on May 16, 2019.... Accordingly, the Court concludes that ABY has failed to sufficiently establish standing for its second alleged injury in fact with respect to the Town Defendants’ conduct. Consequently, the Court dismisses all of ABY’s claims against the Town Defendants and its § 1985 conspiracy claim against all Defendants....

Minnesota Abortion Restrictions Struck Down Under State Constitution

In Doe v. State of Minnesota, (MN Dist. Ct., July 11, 2022), a Minnesota state trial court judge in a 140-page opinion held that a series of state abortion restrictions violate various provisions in the Minnesota state Constitution. The court summarized its conclusions:

[T]his court concludes that Minnesota abortion laws relating to mandated physician care, hospitalization, criminalization, parental notification, and informed consent are unconstitutional. 

These abortion laws violate the right to privacy because they infringe upon the fundamental right under the Minnesota Constitution to access abortion care and do not withstand strict scrutiny. The parental notification law violates the guarantee of equal protection for the same reasons. The informed consent law also violates the right to free speech under the Minnesota Constitution, because it is misleading and confusing, and does not withstand intermediate scrutiny. Accordingly, this court is declaring those laws unconstitutional and permanently enjoining their enforcement.

Courthouse News Service reports on the decision.

Arizona Law On Rights Of Unborn Is Unconstitutionally Vague

In Isaacson v. Brnovich, (D AZ, July 11, 2022), an Arizona federal district court issued a preliminary injunction barring the application of Arizona's "Interpretation Policy" to abortion care that is otherwise permissible under Arizona law.  At issue is an Arizona statute that provides:

The laws of this state shall be interpreted and construed to acknowledge, on behalf of an unborn child at every stage of development, all rights, privileges and immunities available to other persons, citizens and residents of this state....

The court said in part:

The Interpretation Policy is intolerably vague because it is entirely unclear what it means to construe and interpret Arizona law to “acknowledge” the equal rights of the unborn.....

Because of the indeterminate meaning and applicability of the Interpretation Policy, abortion providers do not have fair notice of whether, if they conform their conduct to these laws, they nonetheless may face criminal, civil, or professional liability under other statutes based solely on what licensing, law enforcement, or judicial officials think it means to “acknowledge” the equal rights of the unborn.

Courthouse News Service reports on the decision.

5th Circuit: Policy Change Did Not Moot Prisoner's Suit Seeking Congregate Services For NOGE

In Tucker v. Gaddis, (5th Cir., July 11, 2022), the U.S. 5th Circuit Court of Appeals held that a suit by Texas prison inmates seeking to hold religious gatherings for Nation of Gods and Earths adherents is not moot. The court, in a per curiam opinion, said in part:

The State now says that it has promulgated a new policy to govern congregation requests on behalf of the Nation’s adherents. As a result, the State contends that this suit is now moot.

We disagree. The new policy merely allows Tucker to apply for a congregation. It does not in fact allow the Nation to congregate. To the contrary, any such requests remain subject to “time, space, and safety concerns.” And to date, Texas has never permitted the Nation’s adherents to congregate. Nor is there any indication that Texas will allow them to do so anytime soon. So this case is not moot.

 Judges King and Ho each filed a concurring opinion.

Suit Over Content Of Subway Tuna Sandwiches Moves Forward

In a case that is important to those whose religious beliefs prohibit consumption of meat or pork products, a California federal district court in Amin v. Subway Restaurants, Inc., (ND CA, July 7, 2022), refused to dismiss a suit alleging that Subway's tuna sandwiches contain non-tuna products. As reported by Reuters, the suit, alleging fraud and violations of California's consumer protection statutes, contends that DNA analyses of tuna from Subway indicates it contains other fish species, chicken, pork and cattle. According to the court:

Subway argues that any non-tuna DNA discovered when testing its tuna products must come from the eggs in mayonnaise or from cross-contact with other Subway ingredients.... Although it is possible that Subway’s explanations are the correct ones, it is also possible that these allegations refer to ingredients that a reasonable consumer would not reasonably expect to find in a tuna product.

U.N. Appoints Oxford Prof As Special Rapporteur on Freedom of Religion or Belief

At the end of its 50th annual session on July 8, the United Nations Human Rights Council appointed Nazila Ghanea as Special Rapporteur on Freedom of Religion or Belief (press release). Ghanea is Professor of International Human Rights Law and Director of International Human Rights Programs at Britain's Oxford University (biography). Her research has included a focus on religious minorities in the Middle East, including Bahá'is in Iran. The United Nations press release announcing Ghanea's selection lists her nationality as Islamic Republic of Iran. 

President's Executive Order On Reproductive Health Care

Here is the full text of President Biden's Executive Order on Protecting Access to Reproductive Healthcare Services issued last Friday. It calls on the Secretary of Health and Human Services to submit a report to the President on ways to protect access to reproductive health care. It also calls for the Justice Department, the Federal Trade Commission and the Department of Homeland Security to consider or implement certain additional steps to protect access and protect privacy rights.