Religion Clause

Friday, February 03, 2023

20 State AG's Warn Pharmacies Against Mailing Abortion Pills

Missouri Attorney General Andrew Bailey announced on Tuesday that 20 state attorneys general have sent letters to Walgreen's and CVS pharmacies warning that their plan to distribute the abortion pills mifepristone and misoprostol using the mails violates both state and federal law. (Full text of letters to Walgreen's and CVS). The letters contend that distribution of the pills by mail violates 18 USC §1461 and reject an Opinion of the Justice Department's Office of Legal Counsel (full text) to the contrary.

Satanic Temple Opens Reproductive Health Clinic Offering Its Abortion Ritual

In a press release issued this week, The Satanic Temple ("TST") announced that it has set up its first Reproductive Health Clinic in New Mexico. TST has developed an abortion ritual that it claims is protected by the First Amendment. According to the press release:

[A]nyone in New Mexico seeking to perform The Satanic Temple’s abortion ritual will be able to receive free online medical services. Patients undergo a confidential screening and virtual appointment before having their prescriptions sent to the clinic’s pharmacy partner, who will mail the medications in a discreet package. The pharmacy’s fees will fall around $90 USD in order to keep prices at a minimum. TST Health’s licensed medical staff will be available for patient questions and concerns and will initiate follow-up communications with patients. In addition, the clinic has a dedicated patient hotline that is on call 24/7.

The Satanic Temple hopes to expand operations into other states, including those that do not allow clinicians to perform abortions.

TST's press release added that it has named the facility "The Samuel Alito’s Mom's Satanic Abortion Clinic," and went on to elaborate on that choice. Christian Post reports on TST's actions.

Faith-Based Resource Center for Homeless Sues Over Right to Serve Snacks to Its Clients

Suit was filed this week in a California federal district court by a Resource Cener for impoverished and disabled individuals alleging that the city of Santa Ana has violated its rights under RLUIPA and the First Amendment by insisting that it stop serving snacks to its clients in order to receive a Certificate of Occupancy, even though it had been operating without one for 15 years. The complaint (full text) in Micha's Way v. City of Santa Ana, (CD CA, filed 1/30/2023), asks for an injunction and declaratory relief. Voice of OC, reporting on the lawsuit, summarizes the allegations in the 44-page complaint:

For years, homeless people would come by the red roof house on 4th Street in Santa Ana for help with the basics: Personal documents, mail collection, maybe motel vouchers on a good day.

And on their way back out the door, they’d likely take a pastry from the faith-based center called Micah’s Way — a small parting token in the service of Christian ministry, but an unpermitted property use in the eyes of Santa Ana city officials....

On Monday, Micah’s Way attorney Edmond Connor filed a lawsuit against the city, citing federal protections for religious exercises like feeding and sheltering the homeless.

It accuses city officials of scapegoating Micah’s Way for neighborhood impacts from a nearby needle exchange program.

Chabad's Long-Running Suit Over Land Use Dismissed In Part

In Lubavitch of Old Westbury, Inc. v. Incorporated Village of Old Westbury, New York, (ED NY, Jan. 31, 2023), a New York federal magistrate judge recommended that the district court dismiss on various procedural and jurisdictional grounds (including statute of limitations) a number of the claims in a long-running suit by an Orthodox Jewish Chabad organization that has been unable to obtain permission to use some seven acres of property for religious education, worship and related activities. The magistrate judge began his lengthy Report and Recommendation as follows:

Presently before the Court is a motion to partially dismiss this action, which has been pending for more than fourteen years and involves factual allegations going back to 1994. In the years since the initial complaint was filed on December 17, 2008, this case has been assigned (and then reassigned) to four District Judges ... and four Magistrate Judges.... Furthermore, numerous law firms and attorneys have come and gone on behalf of the parties over this lengthy time span. As a reminder to the parties, they have an affirmative obligation under Federal Rule of Civil Procedure ("Rule") 1 "to secure the just, speedy, and inexpensive determination of every action and proceeding."...

A 237-page Second Amended Complaint in the case asserted 17 causes of action under the 1st, 4th, 5th and 14th Amendments, RLUIPA and the state Constitution.

National Prayer Breakfast Held Yesterday

As reported by AP, the National Prayer Breakfast, attended by 450 invitees, was held yesterday in the Capitol's Visitor Center. As reported in an earlier AP article:

The National Prayer Breakfast, one of the most visible and long-standing events that brings religion and politics together in Washington, is splitting from the private religious group that had overseen it for decades, due to concerns the gathering had become too divisive.

The organizer and host for this year’s breakfast ... [was] the National Prayer Breakfast Foundation, headed by former Sen. Mark Pryor, D-Ark.

Sen. Chris Coons, a regular participant and chairman of the Senate ethics committee, said the move was prompted in part by concerns in recent years that members of Congress did not know important details about the larger multiday gathering.

President Biden spoke at this year's Breakfast. (Full text of remarks.) The prior sponsor of Prayer Breakfasts, the International Foundation, held its own gathering at the nearby Washington Hilton hotel at which attendees watched the President's remarks. Some 1300 people attended that event.

Thursday, February 02, 2023

At Religious Freedom Summit, Ambassador Calls for Crimes Against Humanity Statute

The International Religious Freedom Summit was held on Tuesday and Wednesday in Washington, D.C. Among the numerous speakers and panelists was Beth Van Schaack, U.S. Ambassador-at-Large for Global Criminal Justice. In her remarks (full text), she said in part:

Today, several million Muslims are the victims of two contemporary genocides. One such genocide is being committed by authorities of the People’s Republic of China against predominantly Muslim Uyghurs, ethnic Kazakhs, ethnic Kyrgyz, and members of other ethnic and religious minority groups in Xinjiang. The other is being committed by members of the Burmese military against predominantly Muslim Rohingya. The Secretary of State has made a public genocide determination in both cases....

Although victim and survivor groups tend to gravitate toward the genocide label, ... [w]e do a great disservice to victims when crimes against humanity are omitted from our condemnation....

Crimes against humanity encompass a range of acts made criminal under international law when committed as part of a widespread or systematic attack directed against a civilian population. Prohibited acts include murder, torture, sexual violence, and persecution....

This is a crime that can be prosecuted before many national and international tribunals, including the International Criminal Court. The international community is in the process of drafting a crimes against humanity statute—an effort in which my office is actively involved. Unfortunately, however, the United States does not have a crimes against humanity statute, so this is not a crime that we can prosecute domestically. Senator Durbin has worked for years on getting such a statute enacted and we are hopeful that he can build the congressional consensus he needs around this effort this congressional term.

Wednesday, February 01, 2023

Australia Proposes New Antidiscrimination Requirements For Religious Educational Institutions

On January 27, the Australian Law Reform Commission released a 54-page Consultation Paper on Religious Educational Institutions and Anti-Discrimination Laws (full text). The Commission summarized the Paper in a press release:

The Australian Law Reform Commission seeks stakeholder submissions on proposals to change the way Commonwealth anti-discrimination law applies to religious schools and other educational institutions.

The Consultation Paper sets out four general propositions supported by 14 technical proposals for reform. If adopted, these would:

make discrimination against students on the grounds of sexual orientation, gender identity, marital or relationship status, or pregnancy in schools and other religious educational institutions unlawful, by removing exceptions currently available under federal law,

protect teachers and other school staff from discrimination on the grounds of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy, by removing similar exceptions, and

allow religious schools to maintain their religious character by permitting them to:

give preference to prospective staff on religious grounds where the teaching, observance, or practice of religion is a part of their role (and it is not discriminatory on other grounds); and

require all staff to respect the educational institution’s religious ethos.

Law and Religion Australia has more extensive reporting on the proposal.

4th Circuit: Church Loses Challenges to Zoning Restrictions

In Alive Church of the Nazarene, Inc. v. Prince William County, Virginia, (4th Cir., Jan. 31, 2023), the U.S. 4th Circuit Court of Appeals rejected a church's challenges to zoning restrictions that prevented it from using property it purchased for religious services. The church purchased 17 acres of land zoned for agricultural use. The church originally planned to comply with the agricultural use requirements by making non-alcoholic cider from fruit trees on the property. It would then be classified as a farm winery or limited-license brewery, could build any buildings it wished on the property and could hold events in them. However, the church discovered that in order to qualify, it also was required to obtain a license from the state Alcoholic Beverage Control Board. It concluded that doing this would violate its religious beliefs against the promotion of alcohol. Its only other route was to comply with provisions of a Special Use Permit which required construction that it could not afford. The court rejected the church's equal terms, non-discrimination and substantial burden challenges under RLUIPA, as well as its constitutional Equal Protection, Free Exercise and Peaceable Assembly challenges to the restrictions imposed on it. Courthouse News Service reports on the decision.

Tuesday, January 31, 2023

European Court Says Russia Violated Rights of Same Sex Couples Who Were Denied Marriage Registration

In Fedotova and Others v. Russia, (ECHR, Jan. 17, 2023), the Grand Chamber of the European Court of Human Rights held that Russia violated the rights of three same-sex couples when it refused to permit them to marry. The court said in part:

206. The Government argued, firstly, that it was necessary to preserve the traditional institutions of marriage and the family, these being fundamental values of Russian society that were protected by the Constitution....

209. Given that the Convention is a living instrument which must be interpreted in the light of present-day conditions, the State, in its choice of means designed to protect the family and secure respect for family life as required by Article 8, must necessarily take into account developments in society and changes in the perception of social and civil-status issues and relationships, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life....

212. In the present case, there is no basis for considering that affording legal recognition and protection to same-sex couples in a stable and committed relationship could in itself harm families constituted in the traditional way or compromise their future or integrity..... Indeed, the recognition of same-sex couples does not in any way prevent different-sex couples from marrying or founding a family corresponding to their conception of that term. More broadly, securing rights to same-sex couples does not in itself entail weakening the rights secured to other people or other couples. The Government have been unable to prove the contrary.

213. Having regard to the foregoing, the Court considers that the protection of the traditional family cannot justify the absence of any form of legal recognition and protection for same-sex couples in the present case....

219. ... [T]he allegedly negative, or even hostile, attitude on the part of the heterosexual majority in Russia cannot be set against the applicants’ interest in having their respective relationships adequately recognised and protected by law....

Law & Religion UK reports in greater detail on the decision.

HHS Proposes Repeal of Exemption from Contraceptive Mandate for Entities with Nonreligious Moral Objections

Yesterday, the Department of Health and Human Services along with several other federal agencies filed a 147-page release (full text) proposing rule changes to the Trump Administration's exemptive rules under the Affordable Care Act for employers and universities with objections to furnishing employees and students coverage for contraceptive services. The proposed rule changes would eliminate the current exemption for employers and schools that have moral, as opposed to religious objections. The new rules would retain the exemption for employers and universities with religious objections. However, under new arrangements, their employees and students could, in addition to existing options, obtain contraceptive services through an individual contraceptive arrangement with another provider, and without any involvement on the part of the employer or university with religious objections. The Center for Medicare and Medicaid Services issued a press release explaining the proposed rules, and CNN reports on the proposals.

5th Circuit: FFRF's Suit Against Texas Governor Is Moot

In Freedom From Religion Foundation, Inc. v. Abbott, (5th Cir., Jan. 27, 2023), the U.S. 5th Circuit Court of Appeals held that FFRF's suit against the Governor of Texas for wrongfully removing its display from the state Capitol became moot when the Texas State Preservation Board repealed the rule that had allowed private displays in the Capitol. The court said in part:

It is not seriously disputed that the Foundation’s exhibit satisfied the requirements for display or that the Board’s removal of the exhibit violated the First Amendment restrictions concerning speech communicated in a limited public forum. ...

Because the Foundation’s injury is premised on exclusion from expressing its message in a public forum, and because the public forum no longer exists, the permanent injunctive relief ordered by the district court cannot remain.

The court, however, refused to vacate the trial court's order and declaratory judgment, saying that "they might provide important guidance to future disputes." (See prior related posting.)

Monday, January 30, 2023

Sunday, January 29, 2023

Minnesota Passes Law Guaranteeing Right To Abortions

The Minnesota legislature yesterday gave final passage to HF1, the Protect Reproductive Options Act (full text). It provides in part:

Every individual who becomes pregnant has a fundamental right to continue the pregnancy and give birth, or obtain an abortion, and to make autonomous decisions about how to exercise this fundamental right.

According to a CBS News report on the bill:

Abortion rights in Minnesota are already protected because a Doe v. Gomez, a 1995 Minnesota Supreme Court decision. Democrats frame the bill as a "secondary" line of defense to that ruling.

The bill now goes to Gov. Tim Walz for his signature. According to MPR News, Gov. Walz has said he will sign the bill into law. [Thanks to Scott Mange for the lead.]

Friday, January 27, 2023

Today Is International Holocaust Remembrance Day

Today is International Holocaust Remembrance Day marking the 78th anniversary of the liberation of the Auschwitz-Birkenau Nazi concentration camp. The commemorative day was established by United Nations General Assembly Resolution 60/7, adopted by the General Assembly in 2005. A European Union press release describes the EU's commemoration activities. U.S. President Joe Biden issued a Statement (full text) marking the day. He said in part:

Sadly, we have seen over and over again that hate never goes away. It only hides—waiting to reemerge whenever it is given just a little bit of oxygen. And today, across our country, we are seeing swastikas on cars, antisemitic banners on bridges, verbal and physical attacks against Jewish businesses and Jewish Americans – even Holocaust denialism. It’s vile. It goes against everything we value as Americans. And each of us must speak out against this poison. Together, we must affirm, over and over, that hate has no safe harbor in America.

Baker Cannot Refuse to Provide Non-expressive Cake to Transgender Customer

In Scardina v. Masterpiece Cakeshop, Inc., (CO Ct. App., Jan. 26, 2023), a Colorado state appellate court held that Masterpiece Cakeshop and its co-owner Jack Phillips violated the Colorado Anti-Discrimination Act when they refused a transgender woman's order for a pink cake with blue frosting. The woman sought the cake to celebrate her birthday and her gender transition. The court said in part:

[A] proprietor may not refuse to sell a nonexpressive product to a protected person based on that person’s intent to use the product as part of a celebration that the producer considers offensive....

We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker. Thus, CADA does not compel Masterpiece and Phillips to speak through the creation and sale of such a cake to Scardina....

Masterpiece and Phillips argue, requiring them to make a cake that they know will be used to celebrate an occasion that their faith informs them is an affront to God’s design violates their right to freely exercise their religion.

In the context of providing public accommodations, however, a proprietor’s actions based on their religious beliefs must be considered in light of a customer’s right to be free from discrimination based on their protected status. The Supreme Court has long held that the Free Exercise Clause does not relieve a person from the obligation to comply with a neutral law of general applicability.... CADA is a neutral law of general applicability....

The Supreme Court has consistently held that the state has a legitimate, indeed compelling, interest in eliminating discrimination from public accommodations.,,, Thus, CADA is rationally related to a legitimate governmental interest. Accordingly, CADA may be enforced against Masterpiece and Phillips without violating their right to the free exercise of religion.

In a press release, ADF said that it would appeal the decision.

Thursday, January 26, 2023

Prof Sues Hamline University in Dispute Over Muslim Art Slides Shown in Art History Course

A great deal of national attention has been focused on the dispute at Hamline University over the school's refusal to renew the contract of adjunct Art History faculty member Erika Lopez Prater. A Muslim student (who was also president of the Muslim Student Association) complained to University administrators that in an online class on Islamic art Prater displayed slides of two classic paintings of the Prophet Muhammad. Because of the complaint, the University informed Prater that the class she had been scheduled to teach the following semester has been cancelled. Last week, Prater filed suit against the University in a Minnesota trial court. The complaint (full text) in Prater v. Trustees of Hamline University of Minnesota, (MN Dist. Ct., filed 1/17/2023) alleges religious discrimination, defamation, breach of contract as well as several other causes of action. It alleges in part:

Instead of recognizing that López Prater had displayed the images of the Prophet Muhammad for a proper academic purpose, Hamline decided to impose [the Muslim student's] interpretation of Islam on all Hamline employees and students....

[University Vice President] Everett engaged in libel on Hamline’s behalf, publicly defaming López Prater via email to all Hamline employees and students. The email ... states in relevant part:

Several weeks ago, Hamline administration was made aware of an incident that occurred in an online class. Certain actions taken in that class were undeniably inconsiderate, disrespectful and Islamophobic....

In a January 13 statement, the University released a statement saying in part:

In the interest of hearing from and supporting our Muslim students, language was used that does not reflect our sentiments on academic freedom. Based on all that we have learned, we have determined that our usage of the term “Islamophobic” was therefore flawed. We strongly support academic freedom for all members of the Hamline community. We also believe that academic freedom and support for students can and should co-exist. How this duality is exemplified on our campuses, especially in the current multicultural environment in which we live, is an exciting, robust, and honest conversation for academics, intellectuals, students, and the public to have.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Alabama Executive Order Protects Religious Freedom of Licensees, Grantees, Employees and Others

Alabama Governor Kay Ivey has issued Executive Order No. 733 (Jan. 20, 2023) requiring the executive branch of state government to enforce the Alabama Religious Freedom Amendment to the greatest extent practicable. The Order sets out specific religious freedom protections for state licensees, contractors, grant recipients, recipients of government benefits and state employees. Among other non-discrimination and free exercise protections, the Order provides:

A state executive-branch agency shall protect the religious-exercise rights of current or prospective licensees (i.e., any person or entity authorized or seeking to be authorized to engage in any profession, trade, business, or activity that requires state government licensure, certification, permitting, chartering, or other formal permission)...

The agency shall not require a current or prospective contractor or grant recipient to alter aspects of its religious character as a condition of receiving or maintaining a contract or grant unless strictly necessary to further a compelling governmental interest.

The state issued a press release announcing the signing of the Executive Order.

9th Circuit Orders En Banc Review of School's Action Against Fellowship of Christian Athletes

The U.S. 9th Circuit Court of Appeals has granted en banc review in Fellowship of Christian Athletes v. San Jose Unified School District Board of Education. The court's January 18 Order (full text) vacates the decision of a 3-judge panel which ordered reinstatement of the Fellowship of Christian Athletes as an official student club at San Jose high schools. (See prior posting.). At issue is selective enforcement of the San Jose Unified School District's non-discrimination policy. It revoked FCA’s status as an official student club because FCA requires those serving in leadership roles to abide by its Statement of Faith which includes the belief that sexual relations should be limited within the context of a marriage between a man and a woman. CBN News reports on the decision.

Wednesday, January 25, 2023

Indiana Supreme Court Hears Arguments on Constitutionality of State's Abortion Ban

On January 19, the Indiana Supreme Court heard oral arguments in Members of the Medical Licensing Board of Indiana, et al. v. Planned Parenthood Great Northwest, Hawai'i, Alaska, Indiana, Kentucky, Inc. (Video of full oral arguments.) As summarized by the Court:

After a special legislative session, the Indiana General Assembly passed Senate Bill 1 (“S.B. 1”), which criminalizes abortion, with a few limited exceptions. Appellees filed a complaint for declaratory relief and sought a preliminary injunction to enjoin the enforcement of S.B. 1. The trial court granted the preliminary injunction, and Appellants appealed. The Indiana Supreme Court has granted a petition to transfer under Indiana Appellate Rule 56(A) and assumed jurisdiction over the case.

Liberty Counsel issued a press release reporting on the arguments.