Religion Clause

Thursday, February 16, 2023

Suit Says Sheriff's Office Pressures Employees to Join Favored Church

Suit was filed this week in a Washington federal district court by an ex-deputy sheriff who alleges that Chelan County (WA) Sheriff's Office employees pressured him to join the "'alt-right' militant" Grace City Church and to attend its 12-week marriage counseling program. The complaint (full text) in Shepard v. Chelan County, (ED WA, filed 2/14/2023), alleges in part:

Defendant Chelan County Sheriff's Department targeted law enforcement officers who are not Grace City Church members by disciplining, terminating, and denying advancement to them for alleged internal Chelan County Sheriff's Office policy violations by arbitrarily enforcing certain policies against those employees and officers for the same conduct they allow, promote, or engage in themselves.

The suit alleges violation of Title VII, the Washington Law Against Discrimination and the Establishment Clause. NCWLIFE reports on the lawsuit.

DOJ Enters Consent Decree with Lansing, MI In Suit Over Firing of 7th Day Adventist Employee

The U.S. Department of Justice announced yesterday that it has entered into a consent decree with the city of Lansing, Michigan to settle a Title VII religious accommodation and retaliation lawsuit that alleged the city fired a Seventh Day Adventist police officer rather than accommodating her Sabbath observance. Under the terms of the consent decree, which must still be approved by the court, Lansing will develop religious accommodation and retaliation policies, and trainings on them. It will also pay the former employee $50,000 in back pay and compensatory damages. UPI reports on the settlement.

Church Can Move Ahead Against County in Suit on Covid Restrictions

In Abiding Place Ministries v. Newsom, (SD CA, Feb. 14, 2023), a California federal district court allowed a church to move ahead with certain of its claims against San Diego County for enforcing Covid restrictions against public gatherings. The court held that the county's public health officer had qualified immunity against the damage claims because "there was no clear precedent in March or April 2020 that would have put every reasonable official on notice that promulgating orders restricting in person religious gatherings to slow the spread of the COVID-19 virus was clearly and definitively unconstitutional."

The court however allowed plaintiff to move ahead with Free Exercise, Freedom of Assembly, Establishment Clause, Free Speech and Equal Protection claims against the County. The court said in part:

The County threatened enforcement, penalties, and fines if Plaintiff did not comply with the County Order.... Plaintiff alleges this action by the County “forced the Church’s members to remain away from church against their will, under threat of punishment,,,,” [T]he allegations of the FAC regarding the County’s alleged unconstitutional policy is sufficient overcome the County Defendants’ argument that it cannot be liable under Monell. Accordingly, the County Defendants’ motion to dismiss is DENIED on this ground.....

[The FAC] alleges the County’s Orders and Defendants’ enforcement “had the primary effect of inhibiting religious activity” and caused “excessive government entanglement with religion.” ... Plaintiff contends its religious services exempted from gatherings were treated differently than other public gatherings.... At this stage of the pleadings, the County Defendants’ motion to dismiss the second cause of action is DENIED....

Whatever level of scrutiny is applied, Plaintiff has alleged they were prohibited from engaging in protected speech and assembling in person for the purpose of worship while other gatherings promoting non-religious speech were permissible.... Taking those allegations as true, Plaintiff has plausibly alleged claims for violations of the First Amendment’s freedom of speech and freedom of assembly clauses....

Plaintiff contends Defendants “intentionally and arbitrarily categorized individuals and conduct as either ‘essential’ or ‘non-essential.’”... At the pleading stage, Plaintiff has alleged sufficient facts to state a claim for violation of the Equal Protection clause....

Ministerial Exception Bars Disability Discrimination Suit Against Zen Center

In Behrend v. San Francisco Zen Center, Inc., (ND CA, Feb. 14, 2023), a California federal district court dismissed on ministerial exception grounds a disability discrimination suit brought against a Zen Center by plaintiff who was participating in the Center's Zen Buddhism practice program. The program included both a "formal practice" (meditations, services, educational programs) and a "work practice" (cooking, dishwashing, bathroom and guest room cleaning, ringing bells) component. Finding that the ministerial exception applied, the court said in part:

[B]oth the formal practice and the work practice, “lie[s] at the very core of the mission of” SF Zen Center. Guadalupe, 140 S. Ct. at 2064. And so, drawing all reasonable inferences in Mr. Behrend’s favor, every reasonable trier of fact would be compelled to find his position implicates the fundamental purpose of the ministerial exception. The Work Practice Apprentice position was undisputedly a residential religious training program, and work practice was undisputedly a part of that religious training. Work as part of learning to practice the faith and work as part of training to lead the faith implicate the same fundamental purpose of the exception.

Wednesday, February 15, 2023

New York's Hateful Conduct Law Violates 1st Amendment

In Volokh v. James, (SD NY, Feb. 14, 2023), a New York federal district court issued a preliminary injunction barring enforcement of New York's Hateful Conduct Law against social media platforms that are plaintiffs in the case. The court found that plaintiffs were likely to succeed in both their facial and their "as applied" free speech challenges. The law defines hateful conduct as:

the use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.

It goes on to provide:

A social media network that conducts business in the state, shall provide and maintain a clear and easily accessible mechanism for individual users to report incidents of hateful conduct. Such mechanism shall be clearly accessible to users of such network and easily accessed from both a social media networks' application and website, and shall allow the social media network to provide a direct response to any individual reporting hateful conduct informing them of how the matter is being handled.

Each social media network shall have a clear and concise policy readily available and accessible on their website and application which includes how such social media network will respond and address the reports of incidents of hateful conduct on their platform.

The court concluded in part:

The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal....

[T]he law requires that social media networks devise and implement a written policy—i.e., speech....

Similarly, the Hateful Conduct Law requires a social media network to endorse the state’s message about “hateful conduct”.... To be in compliance ..., a social media network must make a “concise policy readily available and accessible on their website and application” detailing how the network will “respond and address the reports of incidents of hateful conduct on their platform.”... Implicit in this language is that each social media network’s definition of “hateful conduct” must be at least as inclusive as the definition set forth in the law itself....

[Thanks to Volokh Conspiracy for the lead.]

Canadian Church Not in Contempt for Violating Covid Restrictions

In New Brunswick v. His Tabernacle Family Church Inc., (KB NB, Feb. 3, 2023), a trial court in the Canadian province of New Brunswick refused to hold a church in contempt for a violation of Covid restrictions because it was not unequivocally clear that the church knew it was in violation of a previous consent decree. The church, after signing a consent decree, moved its services to a commercial tent in order to avoid restrictions on gatherings in "public indoor spaces." Initially the sides of the tent were raised, but as weather became colder, the church lowered the sides. The Province contended that once the sidewalls of the tent were down, the tent became an enclosed space. The court said in part:

The Applicant was aware that initially the Respondents were using the commercial tent with the side walls up. My understanding of the Applicant's position is that such activity would not be in violation of the Mandatory Order as it relates to "public indoor spaces." However, once all four side walls of the tent were down, the Applicant was of the view that the Mandatory Order had been breached. At a minimum, it was incumbent on the Applicant to advise the Respondents at what point they would be in breach of the Mandatory Order.... [T]here is a point at which the use of the commercial tent becomes an "enclosed space". However, as I write this decision, it is unclear to me when that occurs and counsel for the Applicant were unable to provide a clear answer to the question.... [T]he court struggles to understand how the Respondents were to know....

Fox News reports on the decision.

Tuesday, February 14, 2023

Denial of NYPD Officer's Religious Objection to Vaccination Was Arbitrary and Capricious

In Grullon v. City of New York, (NY County Sup. Ct., Feb. 3, 2023), a New York state trial court held that the New York Police Department's denial in internal appeals of a police officer's religious objections to the Department's Covid vaccine mandate was arbitrary and capricious. The court said in part:

[D]espite Petitioner's detailed submission, the Appeals Panel failed to even mention any of Petitioner's arguments, let alone refute them as being non-religious in nature or not sincerely held beliefs. The decision also failed to mention NYPD's underlying decision denying Petitioner's application or the basis of the decision including the reasons listed on the checked boxes. The decision also failed to mention that it was affirming NYPD's denial and that it agreed with any of the reasons for which the underlying denial was based. Simply, the denial of the appeal is devoid of any explanation, reasoning, or support for its determination that Petitioner's request for a reasonable accommodation did not meet criteria. The Appeals Panel failed to state what the criteria was for obtaining a reasonable accommodation, it failed to include which criteria Petitioner's request failed to satisfy, or any details or support for its determination. Without any explanation or details, the purported reason provided that it did not meet criteria is tantamount to no reason at all.

The court concluded that the officer is entitled to employment with a reasonable accommodation of weekly Covid testing.

Monday, February 13, 2023

Saturday, February 11, 2023

South Dakota Passes Law Banning All Gender-Affirming Treatments For Minors

The South Dakota legislature last week gave final passage to House Bill 1080 (full text) which prohibits healthcare professionals from providing either drug, hormonal or surgical treatments to minors for the purpose of altering the appearance of the minor's sex or validating a minor's perception of their sex that is inconsistent with the biological indication of their gender. The bill specifically includes a ban on administering drugs that delay puberty for minors. Minors currently receiving drug or hormonal treatments for gender dysphoria must be weaned off their medication by Dec. 31, 2023. According to CNN, Gov. Noem will sign the bill into law.

Friday, February 10, 2023

National Archives Sued for Requiring Visitors to Remove Pro-Life Apparel

Suit was filed this week in the D.C. federal district court by three anti-abortion proponents who visited the National Archives on the day of the March for Life in Washington. The complaint (full text) in Tamara R. v. National Archives and Records Administration, (D DC, filed 2/8/2023) alleges in part:

5. While in the National Archives, Plaintiffs were subject to a pattern of ongoing misconduct by federal government officials, specifically National Archives security officers, Defendants John Does and Jane Doe, who targeted Plaintiffs and intentionally chilled their religious speech and expression by requiring Plaintiffs to remove or cover their attire because of their pro-life messages.

6. This case seeks to protect and vindicate Plaintiffs’ fundamental and statutory rights under federal law, the First and Fifth Amendments to the United States Constitution, and the Religious Freedom Restoration Act (“RFRA”).

American Center for Law and Justice issued a press release announcing the filing of the lawsuit. A similar suit was filed against the National Air & Space Museum earlier this week. (See prior posting.)

Federal Circuit Hears Arguments By Organization Seeking "Church", But Not Non-Profit, Tax Status

The Court of Appeals for the Federal Circuit heard oral arguments on Wednesday in an unusual appeal, Alearis, Inc. v. United States. (Audio of full oral arguments.) In the case, the U.S. Court of Federal Claims dismissed a challenge by Alearis to the refusal by the Internal Revenue Service to pass on its application to classify it as a "church". (Alearis, Inc. v. United States, (Ct. Fed. Cl., Jan. 11, 2022)). "Church" status would exempt the organization from various restrictions otherwise imposed on "private foundations." IRS forms require organizations seeking classification as a church to first apply on Form 1023 for an exemption as a non-profit organization under Section 501(c)(3). Alearis says it does not seek non-profit status, only "church" status. It contends that completing Form 1023 would violate its religious tenets, presumably because it would require disclosure of elements of the religion that its doctrines require to be kept secret. The Court of Federal Claims opinion described Alearis as follows:

Plaintiff, Alearis, Inc., is an organization incorporated in the state of Delaware. Its sole member, “the Church,” was “founded at time immemorial when the Old Ones placed the Game into ecclesiastical trust for such purpose.” Plaintiff is “organized exclusively for religious purposes to perform or carry out the functions of the Church.”

Student Loses Free Exercise Challenge To University's COVID Vaccine Mandate

In Collins v. City University of New York, (SD NY, Feb. 8, 2023), a New York federal district court rejected a student's claims that his free exercise, equal protection and procedural due process rights were violated when he was denied a religious exemption from City University's COVID vaccine mandate. In rejecting the student's free exercise claim, the court said in part:

As established by recent Second Circuit case law, the Vaccination Policy is neutral, generally applicable, and easily passes rational basis review.

Bishop Must Testify in Divorce Case with Millions of Dollars at Stake

L.M. v. M.A., (NY County Sup. Ct., Feb. 6, 2023), is a decision by a New York state trial court refusing to quash a subpoena that orders a Coptic Orthodox Church Bishop to testify in a divorce action. At issue is whether the parties to the divorce action were ever married. If they were, the wife may share in millions of dollars of assets in her claims for equitable distribution of marital property and spousal support. The court explains:

The parties here disagree about whether they were married in 2017, with plaintiff stating that they were married, and defendant stating that the Bishop "blessed" their relationship, but did not marry them. The parties agree that their infant son was baptized, as planned.... The parties also agree that Plaintiff mother L.M., who had previously been baptized by another church ... was then baptized in front of many witnesses in the church in an unplanned ceremony immediately following the child's baptism. What occurred next is the crux of the parties' dispute. Defendant father M.A. asserts that the Bishop, the subject of the instant subpoena, who had conducted the two baptisms, then proceeded to perform a family blessing. Plaintiff mother, on the other hand, claims that the Bishop offered to marry the parties ... and that he then performed the parties' previously unplanned wedding ceremony.... The Bishop performed the ceremonies in a combination of the English, Arabic and Coptic languages and most of the guests, all of whom had only been invited to the child's baptism, were not sure whether or not the final ceremony was a marriage ceremony....

As the Bishop has refused to testify as to which ceremony he performed, allegedly because his religious conviction prevents him from testifying in a civil action involving church members, and the parties and their witnesses have testified to diametrically conflicting views as to which ceremony took place, the Court and the parties have all asked the Bishop to testify. Defendant served a valid subpoena upon the Bishop and the Bishop ... has moved to quash the subpoena, stating through counsel and an affidavit from a Coptic theologian, that it is contrary to the tenets of the religion for the Bishop to testify in civilian court "brother against brother."

The court however refused to quash the subpoena, saying in part:

[T]he Court does not have a sufficient factual basis to find that either (i) Bishop A.B. personally has a religious belief that he cannot come into a civilian court to testify "brother against brother," or that (ii) even if he had such a belief, that it is applicable here, where he is not being asked to testify against a co-religionist but instead to describe a public factual event, and both parties (the only people who could plausibly be considered to be a person "against" whom he is testifying) are instead asking him to testify about those facts.....

In a lengthy discussion, the court went on to say that even if this did pose a 1st Amendment issue, there was no violation here.

Thursday, February 09, 2023

2nd Circuit Hears Arguments on Religious Objections to NYC Employee Vaccine Mandate

The U.S. 2nd Circuit Court of Appeals heard oral arguments yesterday in New Yorkers For Religious Liberty, Inc. v. The City of New York. (Mp3 audio of full oral arguments.) At issue are 1st and 14th Amendment challenges to New York City's public employee COVID vaccine mandate by employees with religious objections to the vaccines. (See prior posting). ADF has links to some of the pleadings filed in the case.

2nd Circuit Denies En Banc Review in Church Autonomy Case

In Belya v. Kapral, (2d Cir., Feb. 8, 2023), the U.S. 2nd Circuit Court of Appeals denied en banc review of a 3-judge panel decision which held that the collateral order doctrine does not allow appeal of an interlocutory order rejecting a church autonomy defense. The defense was raised in an action in which plaintiff contended that he was defamed when defendants publicly accused him of forging a series of letters regarding his appointment as Bishop of Miami in the Russian Orthodox Church Outside Russia. Judge Lohier, joined by Judges Lee, Robinson, Nathan and Merriam, filed an opinion concurring in the denial of review, saying in part:

[T]he panel’s decision regarding appellate jurisdiction at this stage in the case poses no threat to the church autonomy doctrine, which has thrived without help from the expansion of the collateral order doctrine that the dissent proposes.

Senior Judge Chin filed a statement in support of denying review, saying in part:

While the church autonomy doctrine provides religious associations with "independence in matters of faith and doctrine and in closely linked matters of internal government," ... it does not provide them with "a general immunity from secular laws"...

Judge Cabranes dissented, citing the exceptional importance of the issues involved.

Judge Park, joined by Chief Judge Livingston and Judges Sullivan, Nardini and Menashi, filed a dissenting opinion, saying in part:

This case arises from a minister’s suspension by his church. The church autonomy doctrine, which is rooted in the Religion Clauses of the First Amendment, generally requires courts to stay out of such matters. But the panel decision leaves the church defendants subject to litigation, including discovery and possibly trial, on matters relating to church governance. This imperils the First Amendment rights of religious institutions. Denials of church autonomy defenses should be included in the narrow class of collateral orders that are immediately appealable.

Reuters reports on the decision.

Ministerial Exception Doctrine Requires Dismissal of Jewish Teacher's Defamation Suit

In Hyman v. Rosenbaum Yeshiva of North Jersey, (NJ Super., Feb. 8, 2023), a New Jersey state appellate court held that the ministerial exception doctrine required dismissal of a defamation suit brought by a rabbi who was an elementary school Judaic studies teacher at an Orthodox Jewish school. An investigation by an outside law firm employed by the school concluded that the rabbi had inappropriately touched 5th and 6th grade female students in his classes. The school terminated the rabbi's employment and, after consulting halachic authorities, e-mailed a letter to school parents informing them that the rabbi was terminated because his conduct violated the Orthodox Jewish standards of conduct set out in the school's Staff Handbook. According to the court:

The letter was spread throughout the entire school community and similar Jewish communities. Additionally, plaintiff's picture appeared on Jewish websites such as "Frums Follies" and "Lost Messiah," and the allegations were disseminated by bloggers. As a result, plaintiff was allegedly branded as a pedophile among the Jewish community, which affected any possibility of him obtaining future employment in education.

In affirming the dismissal of the rabbi's defamation suit, the court concluded that the ministerial exception doctrine applies to more than just employment discrimination lawsuits. It said in part:

We ... conclude that the ministerial exception applies to bar tort claims, provided (1) the injured party is a minister formerly employed by a religious institution and (2) the claims are related to the religious institution's employment decision.

Wednesday, February 08, 2023

In Israel, Jerusalem Municipality Places Tax Lien on Vatican-Owned Guest House

Times of Israel reports that the Jerusalem Municipality has placed a lien on the bank accounts of the Vatican-owned Notre Dame of Jerusalem Center. The Center contains a guest house with rooms and suites for travelers, a chapel, restaurants and other facilities. Municipal authorities say that the Center owes $5 million in back taxes, contending that it operates as a regular hotel. The Vatican says it is a non-profit organization serving Christian pilgrims. The paper explains in part:

Religious institutions in Israel, including churches and monasteries, are exempt from paying property tax. However, in recent years, Israel has sought to come to an agreement with the Vatican that would place Church-owned commercial enterprises — like hotels and coffee shops — under taxation.....

The Church’s position is that since the sides have not come to a final agreement, the existing arrangement in which no properties are taxed should remain in force.

The state has not fought this claim, but in 2018, the Jerusalem municipality decided — citing the legal opinion of Gabriel Hallevy, whom it described as an international law expert — that the exemption for churches applies only to properties used “for prayer, for the teaching of religion, or for needs arising from that.”

The church argues that the guest house functions as a religious institution, and should be exempt from the taxes....

Court Tells City to Negotiate Damages After Its Wrongful Arrest of "Psalm Sing" Protesters Against Covid Restrictions

In Rench v. City of Moscow, (D ID, Feb. 1, 2023), an Idaho federal district court refused to dismiss a suit by three plaintiffs who were arrested for violating a COVID Public Health Emergency Order requiring masking or social distancing in public settings. The Order was issued pursuant to an Ordinance that excluded expressive and associative activity protected by the 1st Amendment if the activity was not specifically prohibited in the Public Health Order. Plaintiffs participated in a local church's "psalm sing" to protest the Order. In making the arrests, authorities overlooked the exclusion for 1st Amendment activity. Eventually the city moved to dismiss the case, but not before plaintiffs incurred significant legal expenses, The court said in part:

The City’s Code could not be more clear: Under a plain reading of the Order in conjunction with the Ordinance, all expressive activity was excluded from the mask or distance mandate because such conduct was not explicitly addressed in the Order itself. In other words, during the relevant time period, those participating in expressive or associative conduct were not required to mask or distance. Plaintiffs should never have been arrested in the first place, and the constitutionality of what the City thought it’s Code said is irrelevant.....

Given that Plaintiffs were wrongfully arrested, the City indisputably erred in interpreting its own Code, the City consequently misadvised its officers as to the Code’s application, and Plaintiffs are so far reasonable in their damages requests, this case should not need to see the inside of a courtroom. It would behoove everyone involved to take a step back from their respective positions and prepare to negotiate in good faith.

Christian Post reports on the decision.

Supreme Court Review Sought in Ministerial Exception Case

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in Faith Bible Chapel International v. Tucker, (cert. filed 2/3/2023). In the case, the U.S. 10th Circuit Court of Appeals by a vote of 6-4, denied en banc review of a panel decision which held that interlocutory appeals from the denial of a ministerial exception defense are not permitted. (See prior posting.) In the case, a former high school teacher and administrator/ chaplain contends that he was fired for opposing alleged racial discrimination by a Christian school. The petition for review frames the Questions Presented in part as follows:

Whether the First Amendment’s “ministerial exception” should be understood as an immunity from judicial interference in church employment decisions falling within the exception, or instead as a mere defense against liability.

WORLD reports on the petition. Becket Law has additional background on the case.

Catholic School Students Sue Air & Space Museum for Barring Pro-Life Apparel

Suit was filed this week in the D.C. federal district court by or on behalf of eleven South Carolina Catholic high school students against the National Air and Space Museum and seven members of its staff alleging that the students were required to remove their hats which carried a pro-life message during their visit to the Museum. The students visited the Museum after participating in the D.C. March for Life event. The complaint (full text) in Kristi L. v. National Air and Space Museum, (D DC, filed 2/6/2023), alleging violations of the 1st and 5th Amendments and RFRA, states in part:

Plaintiffs were subjected to a pattern of ongoing misconduct ... which included targeting, harassment, discrimination and, ultimately, eviction from NASM simply because they wore blue hats with the inscription, “Rosary Pro-Life.”...

Defendants’ restriction on Plaintiffs’ speech is content and viewpoint-based and demonstrates a concerted effort to single out, embarrass, intimidate, exclude, and ultimately silence the message expressed by Plaintiffs in wearing their “Rosary Pro-Life” hat....

The disparate treatment of Plaintiffs based on their viewpoints was a result of a discriminatory purpose on the part of Defendants...

Defendants’ restriction on Plaintiffs’ expressive religious activity as set forth in this Complaint imposes a substantial burden on Plaintiffs’ religious exercise in violation of RFRA....

American Center for Law & Justice issued a press release announcing the filing of the lawsuit.