5th Circuit Hears Oral Arguments in Navy SEAL's Suit Seeking COVID Vaccine Exemption

The U.S. 5th Circuit Court of Appeals on Monday heard oral arguments in U.S. Navy SEAL's 1-26 v. Biden, (Docket No. 22-10077, argued 2/6/2022) (audio recording of full oral arguments). In the case, a Texas federal district court issued preliminary injunctions barring the U.S. Navy from imposing its COVID-19 vaccine mandate on Navy service members who sought religious exemptions from the requirement. (See prior postings 1 and 2). Politico reports on the oral arguments.

Judge Asks for Briefing on Whether 13th Amendment Protects Abortion Rights

 In United States v. Handy, (D DC, Feb. 6, 2023), a D.C. federal district court refused to dismiss a criminal case charging ten defendants with conspiracy to block access to a Washington, D.C. abortion clinic. The court said in part:

In part, Defendant moves to dismiss the Superseding Indictment based on the Supreme Court's statement in Dobbs v. Jackson Women's Health Org. ... that “the Constitution does not confer a right to abortion.”... [I]t appears that Defendant’s constitutional argument is predicated on the false legal premise that the predicate statute at issue in the Superseding Indictment only regulates access to abortion. In fact, it regulates a broad category of “reproductive health services,” including, among other things, “counselling or referral services.” See 18 U.S.C. § 248(5). Nevertheless, to the extent that Defendants seek resolution of this matter via a constitutional holding, the Court will require additional briefing....

Here, the “issue” before the Court in Dobbs was not whether any provision of the Constitution provided a right to abortion. Rather, the question before the Court in Dobbs was whether the Fourteenth Amendment to the Constitution provided such a right....  [I]n consideration of the Supreme Court’s longstanding admonition against overapplying its own precedent, it is entirely possible that the Court might have held in Dobbs that some other provision of the Constitution provided a right to access reproductive services had that issue been raised. However, it was not raised. 

Of those provisions that might contain some right to access to such services, the Thirteenth Amendment has received substantial attention among scholars and, briefly, in one federal Court of Appeals decision. E.g., Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480 (1990); Jane L. v. Bangerter, 61 F.3d 1505, 1514-15 (10th Cir. 1995). Therefore, and to ensure the correct and just disposition of this criminal action, the parties shall address in their forthcoming briefing: (1) whether the scope of Dobbs is in fact confined to the Fourteenth Amendment and (2) whether, if so, any other provision of the Constitution could confer a right to abortion as an original matter....

Politico reports on the court's Order.

Pope Francis Again Speaks Out Against Criminalization of Homosexuality

Yesterday Pope Francis returned from his visit to South Sudan.  On the flight back, he was joined by the Archbishop of Canterbury and the Moderator of the Church of Scotland for a joint press conference. (Full text). In response to a question from a Radio France reporter, the Pope reiterated his opposition to the criminalization of homosexuality, saying in part:

The criminalization of homosexuality is an issue that must not be allowed to pass by. It is estimated that, more or less, fifty countries, in one way or another, promote this kind of criminalization - they tell me more, but let's say at least fifty - and some of these - I think it's ten, even foresee the death penalty [for homosexual persons]. This is not right, people with homosexual tendencies are children of God, God loves them, God accompanies them. It is true that some are in this state because of various unwanted situations, but to condemn such people is a sin; to criminalize people with homosexual tendencies is an injustice. I am not talking about groups, but about people. Some say: they join in groups that generate noise. I am talking about people; lobbies are something different. I am talking about people. And I believe the Catechism of the Catholic Church says they should not be marginalized. This point, I believe, is clear.

Archbishop Welby indicated agreement with the Pope, saying in part:

[T]he Church of England, the Anglican Communion – has passed resolutions at two Lambeth conferences against criminalization, but it has not really changed many people's mind.

Idaho Legislature Cannot Intervene in Suit by U.S. Challenging Idaho's Abortion Ban In Emergency Situations

In United States v. State of Idaho, (D ID, Feb. 3, 2023), an Idaho federal district court refused to allow the Idaho legislature to intervene as a matter of right in a suit in which the U.S. Department of Justice is suing on a claim that Idaho's total abortion ban is preempted by federal law to the extent that it is contrary to the Emergency Medical Treatment and Labor Act.  The court concluded that the legislature has failed to show that the state's attorney general is inadequately representing the state's identical interest in defending the abortion ban.  The same court has previously issued a preliminary injunction against enforcing the ban against any medical provider or hospital that performs an abortion that is required as emergency treatment guaranteed by federal law. (See prior posting.) In that suit, the court permitted the legislature to permissively intervene on a limited basis.

Recent Articles of Interest

 From SSRN:

• Hans Morten Haugen, A Decade of Revitalizing UN Work for Freedom Concerning Religion or Belief 2010-2020, (Journal of Human Rights, January 2023).
• Ira C. Lupu & Robert W. Tuttle, The Remains of the Establishment Clause, (74 Hastings L.J. (forthcoming)).
• Arvind P. Bhanu, Paul T. Babie & Gian-Luca Stirling, Protecting Religious Speech as Expressive Conduct in the Constitutions of Australia, United States, and India, (University of Detroit Mercy Law Review, Vol. 100, No. 1, 2022).
• Shamshad Pasarlay, The Taliban and Islamic Constitutionalism in Afghanistan, (ICONnect: Blog of the International Journal of Constitutional Law (23 December 2022)).
• L. Joe Dunman, Brief for Amicus Curiae The Kentucky Commission on Human Rights, Nelson v. Louisville Metro, (Sixth Circuit Court of Appeals, Nos 22-5884/22-5912) (January 30, 2023).
• Ellen P. Aprill & Lloyd Hitoshi Mayer, 21st Century Churches and Federal Tax Law, (Loyola Law School, Los Angeles Legal Studies Research Paper No. 2023-01 (2023)).
• Lee J. Strang, Originalism's Promise: An Intentionally Thin, Natural Law Account of Our Fundamentally Just, Complex, Constitutional System, (11 Faulkner L. Rev. ___ (2023)).
• Miles Gray, Viewpoint, Not Content: Strengthening First Amendment Protection for Nonconforming Gender Expression, (February 1, 2023).

From SSRN (Abortion Rights):

• Evan D. Bernick & Jull Wieber Lens, Abortion, Original Public Meaning, and the Ambiguities of Pregnancy (January 30, 2023).
• Jensen Lillquist, Comity & Federalism in Extraterritorial Abortion Regulation, (Utah Law Review, Forthcoming).
• Martha Minow, The Unraveling: What Dobbs May Mean for Contraception, Liberty, and Constitutionalism, (Lee Bollinger and Geoffrey R. Stone, eds., Roe v. Dobbs: The Past, Present and Future of a Constitutional Right to Abortion, Forthcoming).

From SSRN (Legal History):

• Simon Stern, Defining Obscenity before Hicklin: Corrupting Texts in the Seventeenth and Eighteenth Centuries, (Forthcoming in in Sylvia Sasse and Matthias Meindl, eds., Literature on Trial).
• Matthew Cavedon, Early Stirrings of Modern Liberty in the Thought of St. Thomas Aquinas, (January 28, 2023).
• Robert J. Miller & Harry Hobbs, Unraveling the International Law of Colonialism: Lessons from Australia and the United States, (February 3, 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.

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.

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.

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.)

Recent Articles of Interest

From SSRN:

• Grainne De Burca & Katharine Young, The (Mis)Appropriation of Human Rights by the New Global Right: An Introduction to the Symposium,, (NYU School of Law, Public Law Research Paper Forthcoming).
• Derrek T. Muller, Faith in Elections, (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 36, No. 2, 2022).
• Peter Grajzl & Peter Murrell, A Macroscope of English Print Culture, 1530-1700, Applied to the Coevolution of Ideas on Religion, Science, and Institutions, (January 24, 2023).
• Lawrence B. Solum & Randy E. Barnett, Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition, (January 26, 2023).
• Laura Portuondo & Claudia E. Haupt, The Limits of Defining Identity in Religion-Gender Conflicts: A Response to Patrick Parkinson, (Journal of Law and Religion, 2023).
• William M. Carter, Jr., The Anti-Klan Act in the 21st Century, (Harvard Law Review Forum, forthcoming, 2023).
• Tyler Smotherman, For Police, not Professors: Why University Officials Should Be Denied Qualified Immunity for First Amendment Violations (And Why Police Officers and the Fourth Amendment Are Different) (January 10, 2023).
• Avihay Dorfman & Alon Harel, Institutional Pluralism: Speaking in a Different Voice, (January 24, 2023).
• David S. Cohen, Greer Donley & Rachel Rebouche, Abortion Pills, (January 23, 2023).
• Raphael Cohen-Almagor, Holocaust Denial and the Abuse of Education, (in Joanna Długosz-Jóźwiak et al (eds.), Festschrift Joerden (Europa-Universität Viadrina Frankfurt Oder, 2023)).

From SSRN (Religious Law):

• Jonathan Hasson & Abraham Tennenbaum, Punishment in Jewish Criminal Law: Its Conflicting Objectives and (in) Consistencies, (January 20, 2023).
• Nazmul Islam Chowdhury, Critical Analysis of Existing Statutory Provisions of Mohammedan Law in Bangladesh: Recommendation of Probable Gender-Friendly Reformation, (January 22, 2023).
• Muhammad Munir, Maintenance of the Wife and Children in Islamic Law and Pakistani Legal System, (January 19, 2023).

From SmartCILP:

• Justin Driver, Three Hail Marys: Carson, Kennedy, and the Fractured Detente over Religion and Education, 136 Harvard Law Review 208-261 (2022).

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.]

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.