Recent Articles of Interest

 From SSRN:

• Hiram Sasser & Lea Patterson, The Religious Liberty Solution to Big Tech Censorship: How the Religious Freedom Restoration Act Limits Section 230 , (26 Tex. Rev. L. & Pol. 607 (2022)).
• Elizabeth Sepper & James David Nelson, Adolf Berle's Corporate Conscience, (45 Seattle University Law Review 97 (2021)).
• Björn Hoops & Karlijn van der Voort, Demolitions of Homes and Seizures of Land of the Bahá’í Minority in Iran: A (Constitutional) Property Law and International Law Perspective, (August 25, 2022).
• Gibson Ikanone, The Pathway to Religious Tolerance in Nigeria  (August 4, 2022).
• Roger Paul Alford, On Foxes and Hedgehogs: John Nagle’s Many Means to One Great End, (97 Notre Dame L. Rev. Reflection 87 (2022)).
• Nausica Palazzo, Comprehensive Security and LGBTQ Rights,  (Review of Faith and International Affairs, Vol. 20, 2022, Forthcoming).
• Peter J. Oliver, What Fundamental Rights, if Any, Should Companies Enjoy? A Comparative Perspective, (Revue européenne du droit, Issue 4 • Summer 2022).
• Pnina Lifshitz Aviram & Yehezkel Margalit, From Roe v. Wade to Dobbs v. Jackson – Between Women's Rights Discourse and Obligations Discourse, (Forthcoming, Health Matrix: Journal of Law-Medicine, Vol. 33, 2023).
• Imran A. Nyazee, Corporate Personality in Fiqh (Islamic Law),  October 4, 2022).

From SmartCILP:

• Jennifer Allison & Jonathan S. Hack, Yehi Shalom Be'Heylekh Shalvah Be'Armenotayikh': Beit Din Arbitration as a Model for Wholistic Dispute Resolution, 51 Cumberland Law Review 395-418 (2021).
• Yanay Israeli, The Requerimiento in the Old World: Making Demands and Keeping Records in the Legal Culture of Late Medieval Castile, 40 Law & History Review 37-62 (2022).
• Justin Marceau, Book Review. God's Law and Order: The Politics of Punishment in Evangelical America, by Aaron Griffith, [Abstract], 40 Law & History Review 167-170 (2022).

City's Harassment Of Private Prayer Services In Rabbi's Home Violated 1st Amendment

In Congregation 3401 Prairie Bais Yeshaya D'Kerestir, Inc. v. City of Miami, (SD FL, Oct. 6, 2022), a Florida federal district court refused to dismiss claims that city officials' harassment of a rabbi's home that hosted daily minyans (prayer services) for invited guests violated the 1st Amendment.  Private groups worshiping in a person's home are permitted in residential areas under the city's zoning code. The court said in part:

Defendant, wielding the City Code "like a club" ... issued multiple erroneous citations against Plaintiff for zoning code violations...; sent City personnel to the Property a staggering 126 times...; installed a surveillance camera that monitors only the Property ...; conducted at least one warrantless search...; and otherwise singled Plaintiffs out for harassment.... These events have had "a chilling effect on Plaintiff[s'] First Amendment Rights."... . Defendant's conduct, at least as alleged, could certainly "chill a person of ordinary firmness from exercising his or her First Amendment rights."  [Quote updated.]

Physicians Ask Arizona Court To Reconcile Competing Abortion Laws

In Arizona, a physician and the Arizona Medical Association have filed a declaratory judgment action in an Arizona trial court asking the court to clarify which of two competing laws on abortion is in effect in the state. The complaint (full text) in Isaacson v. State of Arizona, (AZ Super. Ct., filed 10/3/2022), explains:

3. Most recently, the Legislature passed, and Governor Ducey signed, a law permitting physicians to provide abortions through 15 weeks of pregnancy.... 

4. Since the Dobbs decision was issued on June 24, overturning Roe v. Wade, ... there has been significant confusion around the status of Arizona’s abortion laws, and specifically whether a near total criminal ban on abortion, A.R.S. § 13-3603 (the “Territorial Law”), that was enacted in 1901 but can be traced back to 1864, preempts dozens of existing abortion laws, including the 15-Week Law, and criminalizes otherwise legal, physician-provided abortion care. State officials with enforcement power have either refused to state which abortion laws take precedence or have taken inconsistent positions on the matter.

5. On July 13, 2022, the Arizona Attorney General filed a Rule 60(b) motion in the Pima County Superior Court seeking to lift an injunction of the Territorial Law that had been in place since 1973. On September 23, 2022, the Pima County Superior Court granted the Attorney General’s motion solely based on the decision in Dobbs overruling Roe v. Wade. The court declined to reconcile how the Territorial Law is to operate in harmony with Arizona’s more recent and much more robust statutory scheme governing physician-provided abortion care....

[Thanks to Courthouse News Service for the lead.]

Texas Federal District Court Invalidates HHS and EEOC Guidance On Application Of Bostock Decision

In State of Texas v. EEOC, (ND TX, Oct. 1, 2022), a Texas federal district court held that Guidance documents issued by the EEOC and by the Department of Health and Human Services are unlawful. It vacated and set aside the Guidance documents. At issue are the HHS and EEOC applications of the Supreme Court's Bostock decision. Bostock held that sex discrimination in Title VII includes discrimination because of sexual orientation or gender identity. The HHS Guidance interprets the Affordable Care Act, the Rehabilitation Act and the ADA to prohibit denial of gender-affirming care by healthcare providers. The Texas federal district court says that Bostock  only bars discrimination based on sexual orientation or gender identity status, and does not extend to discrimination based on conduct related to those statuses. The court concluded that the HHS Guidance is arbitrary and capricious because it misstates the law (in part by suggesting that gender dysphoria is a disability under the ADA) and does not detail what went into the Department's decision making. The court held that the EEOC violated procedural rules in issuing its Guidance. Texas Attorney General Ken Paxton issued a press release reacting to the decision. Texas Tribune reports on the decision.

Alternatives For Employees With Religious Exemptions From Vaccination Are Not Discriminatory

In Dollar v. Goleta Water District, (CD CA, Oct. 3, 2022), a California federal district court held that the COVID vaccination policy for employees of the Goleta Water District did not discriminate on the basis of religion against employees who obtained a religious exemption. Plaintiffs contended that the District's policy is discriminatory because it imposes special mask and testing requirements and requires authorization to enter certain buildings for plaintiffs because they have a religious exemption. The court said in part:

[P]laintiffs have not alleged that employees who receive exemptions on religious grounds are treated any differently from employees who receive exemptions on non-religious grounds. Instead, plaintiffs have only alleged that the policy treats them differently from other employees because of their vaccination status, not because of their religion.

School Counselor's Employment Agreement Sufficient To Invoke Ministerial Exception Doctrine

In Fitzgerald v. Roncalli High School, Inc., (SD IN Sept. 30, 2022), an Indiana federal district court invoked the ministerial exception doctrine to dismiss a suit brought by Michelle Fitzgerald, a Catholic high school guidance counselor who was fired after the school and the church that oversaw it learned that she was in a same-sex marriage. The court said in part:

Fitzgerald argues that Roncalli never entrusted her with religious teaching duties by raising numerous genuine factual disputes over what exactly she did at the school. She contends the record demonstrates that Roncalli entrusted her in description alone. She never engaged in religious teaching, nor did Roncalli expect her to....

[However,] Fitzgerald's employment agreement and Roncalli's description of Fitzgerald's expected duties are, alone, sufficient to resolve this case because those documents make clear that Roncalli entrusted Fitzgerald to teach the Catholic faith and carry out Roncalli's religious mission....

All this indicates Roncalli entrusted guidance counselors like Fitzgerald to convey the Church's message in addition to their secular duties. And under Seventh Circuit precedent, Fitzgerald's non-performance of these entrusted duties makes her "an underperforming minister" who may be removed pursuant to the ministerial exception.

Washington Examiner reports on the decision.

5th Circuit Hears Oral Arguments On Alabama COVID Limits On Religious Gatherings

 On Oct. 3, the 5th Circuit U.S. Court of Appeals heard oral arguments (audio of full arguments) in Spell v. Edwards. Former Alabama Supreme Court Chief Justice and U.S. Senate candidate Roy Moore argued for appellant. In the case, a Louisiana federal district court dismissed a challenge to a now expired COVID Order limiting the size of religious gatherings. The district court dismissed because the challenged restrictions had already expired, and defendants had qualified immunity in the claim for damages. (See prior posting.) AP reports on the oral arguments.

5th Circuit: Confiscation Of Prisoner's Religious Material Upheld

 In DeMarco v. Bynum, (5th Cir., Oct. 4, 2022), the U.S. 5th Circuit Court of Appeals upheld the dismissal of a suit brought by an inmate who contended that confiscation of his religious material violated his First Amendment rights. The court said in part:

DeMarco concedes that he did not store his religious materials as required by AD-03.72. And this court has previously indicated that TDCJ policies regarding storage of personal property do not infringe on a prisoner’s right to free exercise of religion....

Bynum’s confiscation of DeMarco’s religious materials was reasonably related to a legitimate penological objective.... There is also an alternative way for DeMarco to exercise his First Amendment rights, by accessing religious reading materials through the prison chaplain. The impact of accommodating DeMarco’s constitutional rights on other prisoners, guards, and prison resources could be great, given the management and safety concerns underlying the policy....

Moreover, even if Bynum had violated DeMarco’s constitutional rights, the district court correctly found that Bynum was entitled to qualified immunity because his actions were objectively reasonable.

Court Rejects Religious Defense To Illegal Possession Of Firearm Charges

In United States v. Harper, (ND IA, Sept. 30, 2022), an Iowa federal district court refused to dismiss indictments charging defendant with  possession of a firearm by a felon and unlawful drug user.  Defendant argued that he is a Muslim who practices Sharia Law which calls for armed self-defense, including the possession of a firearm. The court, accepting the Report and Recommendation [Lexis link] of a magistrate judge, said in part:

There is no less restrictive means to achieve the Government’s compelling interest in uniformly applying gun laws for public safety than prosecuting Harper.

Michigan Ban On Use Of State Funds For Private And Religious Schools Upheld

In Hile v. State of Michigan, (WD MI, Sept. 30, 2022), a Michigan federal district court dismissed free exercise and equal protection challenges to a provision in the Michigan Constitution that prohibits the use of state funds, tax benefits or vouchers to aid "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school" or student attendance at such schools. Plaintiffs contend that the provision reflects an anti-religious and anti-Catholic sentiment. Plaintiffs base their challenge on the unavailability of Michigan's Section 529 savings plan for them to use to send their children to private religious schools. The state, however, argues that its Plan is not available for any private high school tuition. Plaintiffs argue that the state is misinterpreting its own legislation.  The court said in part:

The court is satisfied that principles of comity preclude merits consideration of plaintiffs’ First Amendment Challenges because they would require this court to disregard the State’s own interpretation and consistent application of its own tax law, neither of which raises First Amendment concerns. Plaintiffs can take the issue up with Michigan tax authorities in the ordinary administration of the Michigan income tax collection process. But unless and until Michigan changes the interpretation and application of its own tax law, and replaces it with the version Plaintiffs say it should have, there is no First Amendment issue.

The court also rejected plaintiffs' equal protection challenge, saying that it is unwilling to expand the "political process" doctrine. Plaintiffs had argued that by placing the limits on use of state funds in the state Constitution, the state had burdened their ability to seek changes in the law. Bridge Michigan reports on the decision.

Pastor's Defamation Suit Dismissed On Ecclesiastical Abstention Grounds

In Weems v. Celebration Church of Jacksonville, Inc., (FL Cir. Ct., Sept. 28, 2022), a Florida state trial court dismissed on ecclesiastical abstention grounds a defamation lawsuit by the former pastor of Celebration Church. At issue is a report growing out of an internal investigation of the pastor commissioned by church trustees.

Plaintiffs’ current pleading invites this Court’s entanglement into Celebration Church’s internal matters....

In order to determine whether Celebration Church defamed Pastor Weems as currently alleged, this Court would need look to the time Pastor Weems was employed by the Church to see whether he did or did not partake in the actions as alleged by the Church and whether those actions were forbidden by the Church's bylaws and other internal policies.

Florida Times-Union reports on the decision.

COVID Vaccine Mandate Without Religious Exemption Is Upheld

In Does v. Hochul, (ED NY, Sept. 30, 2022), a New York federal district court dismissed challenges to New York's COVID vaccine mandate for healthcare workers brought by five employees with religious objections to the vaccine. In evaluating plaintiffs' free exercise claims, the court concluded that the regulation, which contains no religious exemption, is subject only to rational basis review, saying in part:

The plaintiffs argue that the mandate is not neutral because it includes a medical exemption, and thus “treats religious exemptions less favorably than some nonreligious exemptions;” in the plaintiffs’ words, this “double standard is not a neutral standard.”... 

Section 2.61 is neutral on its face. It does not refer to religion at all, and applies to “all persons employed or affiliated with a covered entity” who could “potentially expose other covered personnel, patients or residents to” COVID-19; the only exception is for employees with medical conditions that qualify for a medical exemption...

The rule at issue in this case involves no “singling out” of religious employees. Indeed, Section 2.61 applies equally to all employees who can be vaccinated safely, regardless of their religious beliefs or practices, whether they have political objections to the vaccine, or question their efficacy or safety, or any of the many other reasons that people choose not to get vaccinated....

The court also rejected plaintiffs' Title VII challenge, saying in part:

The sole “accommodation” the plaintiffs seek—a religious exemption from the vaccine requirement— would impose an undue hardship on the Private Defendants because it would require them to violate state law.

Village Residents Lack Standing In Establishment Clause Challenge To Zoning Law

In Citizens United to Protect Our Neighborhoods v. Village of Chestnut Ridge, New York, (SD NY, Sept. 30, 2022), a New York federal district court dismissed for lack of standing a suit by a civic organization and Village residents alleging that the Village's new zoning code violated the Establishment Clause by favoring one religious group, Orthodox Jews.  The Code created new categories of religious uses and houses of worship, including "residential gathering places" so that single-family homes could be opened for religious activities, subject to additional parking requirements. This facilitated small-scale worship services often used by Orthodox Jews who for religious reasons cannot drive on the Sabbath and holidays. The court said in part:

Plaintiffs claim the new zoning amendments “target religious uses with special favorable treatment over secular uses.” (Id.) However, Plaintiffs have not identified any injury, nonetheless a particularized and concrete one. The law is clear that generalized grievance is insufficient to establish standing....

Individual Plaintiffs claim they have direct exposure standing because the New Zoning Law was rushed into law and gives preferential treatment to OJC and religious uses over secular uses, such that “the construction of an untold number of houses of worship” will serve as “constant reminders of the law and its endorsement of religion.” ... This is an insufficient basis ... for finding direct exposure standing....

11th Circuit: City Council Invocation Is Government Speech

In Gundy v. City of Jacksonville Florida, (11th Cir., Sept. 30, 2022), the U.S. 11th Circuit Court of appeals held that an invocation opening a city council meeting delivered by Reginald Gundy, a pastor invited by a member of Council, is government speech.  At issue is a suit by the pastor whose microphone was cut off in the middle of his invocation by the city council president who concluded that the invocation had crossed over into a political attack. The court concluded that the pastor's suit should be dismissed, saying in part:

Mr. Gundy's appeal centers on the fact that he brought counts against Mr. Bowman and the City based on alleged violations of his free speech and free exercise rights under the United States Constitution and the Florida Constitution.

As a threshold and dispositive matter, ... we hold that the district court erred in deeming the invocation private speech in a nonpublic forum instead of government speech. And since Mr. Gundy did not allege a violation of his rights under the Establishment Clause, which is the proper constitutional vehicle to attack the government speech at issue here, his appeal must fail.

Certiorari Denied In Scientology Arbitration Case and Falun Gong Leafleting Case

Today's 48-page Order List from the U.S. Supreme Court on its opening day of the term includes the denial of review in two cases of interest:

Church of Scientology v. Bixler (Docket No. 22-60, cert. denied 10/3/2022): In the case, a California state appellate court held that former Church of Scientology members were not bound by their agreement to submit all disputes with the Church to the Church's Religious Arbitration system when the dispute involves conduct that occurred after plaintiffs left the Church. (See prior posting.)

Zhang Jingrong v. Chinese Anti-Cult World Alliance, Inc. (Docket No. 21-1429, cert. denied 10/3/2022) and Chinese Anti-Cult World Alliance, Inc. v. Zhang Jinrong (Docket No. 21-1556, cert. denied 10/3/2022)- In the case the 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.” In addition, the cross-petition for review raised the issue of the validity of the statute under the commerce clause. (See prior posting.)

Special Permit Requirement Only For Houses Of Worship Violates 1st Amendment

In Omar Islamic Center Inc. v. City of Meriden, (D CT, Sept. 30, 2022), a Connecticut federal district court held that a zoning regulation that required places of worship to obtain a special permit to operate in areas zoned M-4 (Planned Industrial District) violates plaintiffs' 1st Amendment free exercise rights. Plaintiff sought to use a vacant commercial building as a mosque. The court said in part:

Regulations allowed hotels, motels, and convention centers, as well as numerous shops and stores including bakeries, restaurants, and theaters, to operate as of right in the M-4 district, without needing to apply for a special permit.... Places of worship, however, were required to obtain a special permit before opening their doors. It is clear to the Court that, under the test set forth by the Supreme Court in Tandon, at least some comparable secular activities were therefore treated more favorably than religious activities under the Regulations. Thus, the law is not neutral and generally applicable under free exercise principles, and it must be examined with strict scrutiny.

Defendants have not defended the law under either a rational basis or strict scrutiny standard. In fact, they have proffered no rationale underlying the law whatsoever.

The court also found that the regulation violated plaintiff's equal protection rights. The court refused to pass on plaintiff's RLUIPA claims because it was unclear whether or not plaintiff had an actual property interest in the building.

Qualified Immunity Protects Defendants Who Denied Religious Exemptions From COVID Vaccine Mandate

In Jane Does 1-11 v. Board of Regents of the University of Colorado, (D CO, Sept. 29, 2022), a Colorado federal district court dismissed a number of claims by current and former students and employees of the University of Colorado who were denied religious exemptions from the University's COVID vaccine mandate. Some of the claims were dismissed on mootness and sovereign immunity grounds. Other claims were dismissed on qualified immunity grounds, with the court saying in part:

Given the unprecedented nature and global scope of the Covid-19 pandemic as well as its devastating impacts, the Court finds the allegations in the Complaint do not establish that these Defendants acted unreasonably in light of existing precedent and in the specific context of this case. Therefore, at a minimum, they did not violate Plaintiffs’ clearly established rights.

Supreme Court Opens Its October 2022 Term Today

The Supreme Court opens its new term this morning.  Washington Times reports that the traditional Red Mass that precedes the Court's new term was held yesterday at Washington's Cathedral of St. Matthew the Apostle.  Chief Justice Roberts, Justice Barret and retired Justice Breyer attended. Among the cases already on the Court's docket for this term is 303 Creative LLC v. Elenis (SCOTUS blog case page). The date for its oral argument has not yet been set. In the case, the U.S. 10th Circuit Court of Appeals upheld the application of Colorado's Anti-Discrimination Act to a wedding website design company whose owner for religious reasons refuses to create websites that celebrate same-sex marriages. (See prior posting.) The Court granted review only on the free speech issue in the case. The Court will continue to broadcast live audio feed of oral arguments at this link. We can also expect the traditional First Monday long Order List to be released this morning.

Recent Articles of Interest

From SSRN:

• David Schorr, History, Theory, and Jewish Tort Law: Sinai and Shmueli's Maimonides and Contemporary Tort Theory, (Jewish Law Annual, Forthcoming).
• Nicholas McBride, The Nature of Evil, (September 10, 2022).
• Joshua Neoh, The Allah Case: What is the Name of God?, (Law and Religion in the Commonwealth (Hart, 2022)).
• Robert W. McGee, Serkan Benk & Bahadir Yuzbasi, Religious Attitudes Toward Bribery: A Comparative Study (Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, Chapter 7, Chapter 8, by McGee & Benk,  Chapter 38, Chapter 39, (in Robert W. McGee & Serkan Benk (Eds.), The Ethics of Bribery: Theoretical and Empirical Studies. Switzerland: Springer, Forthcoming).
• Wendy Bach & Nicolas P. Terry, HIPAA v. Dobbs, (September 15, 2022).
• Joseph Cyriac & Ashim Alex, An Outlook into Cultural Hypocrisy and Caste Transformation in India, (August 31, 2022).
• Mayowa Aroyewun, Challenges and Prospects of Cryptocurrency in Islamic Finance in Nigeria, (October 8, 2021).
• Nicholas McBride, The Nature of Evil, (September 10, 2022).
• Miranda Webster & Rosemary Teele Langford, An Analysis of the ACNC's Approach to Compliance and Enforcement, (September 13, 2022).

From SmartCILP:

• Russell K. Robinson, What Christianity Loses When Conservative Christians Win at the Supreme Court, [Abstract], 2021 Supreme Court Review 185-224 (2021).
• Lee Epstein & Eric A. Posner, The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait, 2021 Sup. Ct. Rev. 315-348 (2021).

6th Circuit Affirms That County Clerk Kim Davis Had No Qualified Immunity Defense

In Ermold v. Davis, (6th Cir., Sept. 29, 2022), the U.S. 6th Circuit Court of Appeals affirmed a Kentucky federal district court decision that Rowan County Clerk Kim Davis does not have qualified immunity in a suit against her for stopping the issuance of all marriage licenses to avoid issuing licenses to same-sex couples. The court said in part:

[P]laintiffs have not only “alleged” but also now “shown” that Davis violated their constitutional right to marry.... And, as we held three years ago, that right was “clearly established in Obergefell.”

The court held that insofar as Davis has raised a free exercise defense under the First Amendment, that issue should be resolved when the case goes to trial and not at the current motion-to-dismiss stage. [Thanks to Thomas Rutledge for the lead.]