Recent Articles of Interest

From SSRN:

• Gentian Zyberi & Eduardo Sánchez Madrigal, The Practice of Judicial and Quasi-Judicial Human Rights Bodies on Conscientious Objection to Military Service, (Michael Wiener and David Fernández Puyana (eds.), A Missing Piece for Peace: Bringing Together the Right to Peace and Freedom of Conscientious Objection to Military Service (UPEACE Press, 2022), pp. 121-139).
• Josh Blackman, Howard Slugh & Tal Fortgang, Abortion and Religious Liberty, (Texas Review of Law & Politics, Vol. 27, 2023).
• Amanda Harmon Cooley, Quiet Encroachments on School Prayer Jurisprudence, (January 31, 2023).
• Dallan Flake, When "Close Enough" is Not Enough: Accommodating the Religiously Devout, (February 14, 2023).
• Roberta Lea Brilmayer, Abortion, Full Faith and Credit, and the 'Judicial Power' Under Article III: Does Article IV of the U.S. Constitution Require Sister-state Enforcement of Anti-abortion Damages Awards?,(January 10, 2023).
• Peter Kirsanow, Gail L. Heriot & Dan Morenoff, Brief of the American Civil Rights Project as Amicus Curiae in Support of Appellee and Affirmance in Tennessee v. Department of Education, (January 31, 2023).

From SmartCILP:

• Symposium: Berle XII: Corporate Capitalism and the City of God, Seattle University Law Review, Vol. 45, issue 1 (2021).
• Asma T. Uddin, Religious Liberty Interest Convergence, 64 William & Mary Law Review 83-168 (2022).

Military Will Provide Travel Allowances for Service Members Who Need to Travel to Obtain Abortions

In a press release issued on Feb. 16, the Department of Defense announced that it has issued policy memoranda (full texts1, 2, 3) that assure access to reproductive health care for service members.  Among other things, the policies will now allow service members to receive travel and transportation allowances if abortion or assisted reproduction services are not available in the local area. The health care services however are at the service member's own expense. Different policies apply to covered abortions, those where the life of the mother would be endangered if the fetus were carried to term or the pregnancy was the result of rape or incest.

Kentucky Supreme Court Finds Procedural Problems with Abortion Providers' Attempt to Enjoin Abortion Bans

In Cameron v. EMW Women's Surgical Center, P.S.C., (KY Sup. Ct., Feb. 16, 2023), the Kentucky Supreme Court considered challenges by abortion providers to two Kentucky statutes banning abortions. The "trigger ban" prohibits all abortions, except when necessary to preserve the life of the mother or prevent permanent impairment of a life-sustaining organ. The "heartbeat ban" bars abortions after there is a detectable human heartbeat, with a similar exception for preserving the life of the mother or preventing irreversible impairment of a major bodily function. The trial court issued a preliminary injunction preventing enforcement of both laws. The state Court of Appeals granted emergency relief and dissolved the injunction, and then transferred the case to the state Supreme Court. In this opinion, the state Supreme Court affirmed the Court of Appeals dissolution of the injunction, holding that abortion providers lack third-party standing to challenge the laws on behalf of their patients. However, they held that abortion providers do have standing to challenge the "trigger ban" on their own behalf, and remanded the case to the trial court on that issue. Justice Lambert, joined by Justice Conley, said in part:

[T]he abortion providers’ arguments that the trigger ban improperly delegates legislative authority and that becomes effective on the authority of an entity other than the General Assembly remain live issues. If the abortion providers were to receive a favorable ruling on those issues, the statute would be invalidated if the offending enactment provision could not be severed. This in turn would provide the abortion providers with the relief they seek, satisfying the redressability prong of constitutional standing. 

However, although the abortion providers have constitutional standing to challenge the trigger ban on the foregoing two grounds, they made no arguments concerning their own rights in relation to the heartbeat ban. Their only assertion against the heartbeat ban was that it violated their patients’ constitutional rights to privacy and self-determination....

[T]he personal harm asserted by the abortion providers, the harm to their business, is not considered an irreparable injury for the purposes issuing a temporary injunction.

The circuit court also erred when balancing the equities involved....

To be clear, this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion, as no appropriate party to raise that issue is before us. Nothing in this opinion shall be construed to prevent an appropriate party from filing suit at a later date....

This matter is accordingly remanded to the circuit court for the determination of the first-party constitutional claims of the abortion providers as to the trigger ban. Specifically, whether the trigger ban was an unlawful delegation of legislative authority in violation of Sections 27, 28, and 29 of the Kentucky Constitution and if the trigger ban became effective upon the authority of an entity other than the General Assembly in violation of Section 60 of the Kentucky Constitution.

Chief Justice VanMeter concurred only in the result.

Four other Justices each filed separate opinions, concurring in part and dissenting in part.

Justice Bisig, joined by Justice Keller, said in part:

Thus, while I concur with the majority’s conclusion that Plaintiffs have first-party standing to challenge the Trigger Ban and with their recognition of third-party standing for purposes of Kentucky law, I respectfully dissent from the remainder of their Opinion. I would reverse the Court of Appeals, affirm the trial court, and direct reinstatement of the temporary injunction....

Because the statutes infringe upon a pregnant patient’s fundamental rights to pursue safety and to self-determination and are likely not sufficiently narrowly tailored to a compelling government interest, I would hold that EMG presented a substantial question on the merits of the case below.

Justice Keller, joined by Justics Bisig, concurred in part, saying in part:

I concur with the Majority’s holding that the physicians have first-party standing to assert their claims in the case at bar. However, I dissent from the remainder of the Majority’s Opinion. Further, I join Justice Bisig’s separate opinion, as I also believe that the physicians have third-party standing to assert the claims of their patients and that the trial court did not abuse its discretion in granting the temporary injunction.

Nickell, J. concurred in part and dissented in part, saying in part:

I concur with the view that the trial court abused its discretion by enjoining the enforcement of the abortion bans. However, I respectfully dissent from any conclusion that Appellees have first-party standing or third-party standing to assert this pre-enforcement constitutional challenge. There should not be one set of procedural rules for abortion providers and another for everyone else.

Thompson, J. concurred in part, saying in part:

I concur in the majority opinion that first party standing was established for the abortion providers and dissent from its conclusion that they lacked third party standing. I believe we should err on the side of finding standing when at all possible, so that parties can gain needed review. 

Accordingly, I urge the trial court to fully exercise its authority on remand by freely allowing intervention by all interested parties so that first party standing may be established for all issues....

Liberty Counsel issued a press release announcing the decision. CNN reports on the decision.

Bankruptcy Reorganization Plan for Harrisburg Diocese Approved By Court

On Feb. 15, the U.S. Bankruptcy Court for the Middle District of Pennsylvania gave final approval to the Plan of Reorganization for the Catholic Diocese of Harrisburg. (Full text of Reorganization Plan.) (Announcement by Diocese.) A Questions and Answers document explaining the Plan says in part:

The Plan outlines how the RCDH and related entities will (a) establish a Survivor Compensation Trust, (b) provide funding to the Trust in an amount equal to $7,500,000 to provide financial restitution for survivors of clergy sexual abuse, and (c) adopt enhanced child protection protocols. In addition to the financial restitution from the RCDH and related entities, current and historical insurance providers will also contribute $10,750,000 to the Trust....

Prior to filing for reorganization, the RCDH authorized an independent Survivor Compensation Program be established, in order to provide financial restitution to abuse survivors. Through this program, $12,784,450 was provided to assist 111 survivors.... 

More than 60 proofs of claim were submitted during the reorganization process and may be eligible for financial distributions from the Survivor Compensation Trust....

The majority of the claims involve accusations against Diocesan priests. As part of the confirmation process, the Diocese issued a list of persons involved in the claims. That list is available www.hbgdiocese.org/reorganization-information. All claims of abuse received during the bankruptcy process were reported to law enforcement.

Links to all the major legal documents filed in the reorganization are available on the Diocese's website. WHP CBS21 reports on the Plan's approval. The Survivor's Network SNAP issued a press release reacting to the Plan approval.

Consent Decree on Preliminary Injunction Signed in Pro-Lifers Suit Against National Archives [CORRECTED]

As previously reported, a suit was filed in D.C. federal district court last week against the National Archives after its security officers required three anti-abortion proponents who were visiting the museum to cover their pro-life t-shirts and remove pro-life buttons and hats.   In a press release yesterday, the American Center for Law and Justice announced that the court has signed a consent decree (full text) in the case.  The decree preliminarily enjoins the National Archives from prohibiting visitors from wearing t-shirts, hats, buttons or other attire that displays religious or political speech. In addition, National Archives will provide personal tours and personal apologies to two of the plaintiffs in the case. The National Archives has already issued a press release apologizing for the incident. The case has been referred to the D.C. Circuit's Mediation Program for 90 days to explore a final settlement. Politico reports on the parties' agreement. [Note: An earlier version of this post incorrectly stated that the case had been finally settled.]

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.

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.

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.

Recent Articles of Interest

From SSRN:

• 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).
• Steven J. Heyman, Natural Rights, Natural Religion, and the Free Exercise Clause: An Essay for Michael Kent Curtis, (Wake Forest Law Review, Vol. 57, No. 4, pp. 865-95, 2022).
• Paul A. Gowder, Why Majority Religions Should Not Be Accommodated, (Forthcoming, Iowa Law Review, 2023).
• Yolanda van der Vyver, The Roles of Law, Religion and the Covid-19 Pandemic in South African Church Architecture, (M.Christian Green, Faith Kabata and Fortune Sibanda, eds. 2022. Law, Religion, Health and Healing in Africa, African Consortium for Law and Religion Studies (ACLARS).
• Christopher C. Lund, Discrimination, Trump v. Hawaii, and Masterpiece Cakeshop, (Georgia Law Review, Vol. 56, p. 1551 (2022) (symposium)).
• Brian Soucek & Ryan Chen, Misunderstanding Meriwether, (UC Davis Legal Studies Research Paper Forthcoming).
• Deborah L. Brake, Title IX's Trans Panic, (William & Mary Journal of Race, Gender, and Social Justice, Vol. 29, p. 41 (forthcoming 2023)).
• Lloyd Hitoshi Mayer, Allocating State Authority Over Charitable Nonprofit Organizations. (UCLA Law Review Discourse, Forthcoming).

From SSRN (Islamic Law):

• Sayed Qudrat Hashimy, Tracing the History of the Legal System in Afghanistan, (February 9, 2023).
• Mohammad Rasikh Wasiq, Cryptocurrencies: A Critical Analysis from the Perspective of Islamic Law, (September 4, 2022).
• Joseph Kaminski, Irredeemable Failure: The Modern Nation-State as a Nullifier of Ummatic Unity (Ummatics 2022).

From SmartCILP:

• Alexander Tsesis, Government Speech and the Establishment Clause, 2022 Univeristy of Illinois Law Review 1761-1808 (2022).

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.

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.

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.