Religion Clause

Tuesday, March 14, 2023

COVID Order Violated Priest's Free Exercise Rights

In Urso v. Mohammad, (D CT, March 10, 2023), a Catholic priest sued a town's health director over COVID orders that cancelled religious gatherings and congregational prayers. The court concluded that the health Directive violated plaintiff's free exercise rights, but left for trial the question of whether plaintiff suffered an injury, saying in part:

[N]ot all secular businesses in the Town of Orange were closed, and the Directive itself is unquestionably stricter than the Governor’s Executive Orders, which imposed capacity limits on religious institutions in line with those imposed on other secular businesses, and never cancelled all religious services completely.... In Agudath Israel, the Second Circuit applied strict scrutiny when businesses such as retail stores, news media, financial services, and construction were not as restricted as houses of religious worship.... Thus, the Second Circuit has already made the determination there is no meaningful difference between a retail store and a house of worship in terms of COVID-19 risk.... Regardless of how well intentioned it might have been and the difficult circumstances under which it was issued, the Directive “expressly singles out religion for less favored treatment” by subjecting religious services to complete cancellation while not imposing such strict measures on other businesses regardless of their size or the length of time people were gathering there ... and is thus subject to strict scrutiny....

The Court determines therefore as a matter of law both that the Directive is subject to strict scrutiny, and that it fails that scrutiny, thus violating the First Amendment....

The court concluded that plaintiff's equal protection claim is tied to the free exercise claim. The court found that claims for injunctive and declaratory relief were now moot. It rejected plaintiff's Establishment Clause claim saying that the health directive did not "establish religion or espouse a religious message." It rejected plaintiff's free speech and freedom of assembly claims, relying on the Supreme Court's 1905 decision in Jacobson v. Massachusetts.

Monday, March 13, 2023

Rastafarian Police Officer's Free Exercise Claim May Move Ahead

In Taylor v. City of New Haven, (D CT, March 10, 2023), a Rastafarian police officer sued claiming religious and disability discrimination after being denied an exemption from the police department's grooming policy. While dismissing a half dozen of plaintiff's claims largely on procedural and jurisdictional grounds, the court permitted him to move ahead with his First Amendment free exercise claim for damages, saying in part:

The plaintiff has alleged facts sufficient to show that the general order at issue burdened his religious conduct..., and that the order lacked general applicability, both because it invited individualized exemptions... and because the City of New Haven permitted secular conduct contrary to the general order.... Thus, the plaintiff has alleged facts which, if true, demonstrate that the general order is subject to strict scrutiny and that the government can achieve its interests in a manner that does not burden religion. Consequently, for purposes of this stage of the case, the plaintiff has shown that he had a right protected by the First Amendment.

Sunday, March 12, 2023

Latest Attempt to Prevent City from Removing Cross from Public Park Fails On Procedural Grounds

Lion's Club of Albany, California v. City of Albany, (ND CA, March 9, 2023), is the latest installment in the ongoing litigation over the removal of a 28-foot tall, illuminated Latin cross located in a park which the city has purchased. (See prior related posting.) The Lioin's Club has an easement allowing it access to the cross to maintain it. After a prior decision finding that the city violated the Establishment Clause when it purchased the park and left the cross standing, the city instituted eminent domain proceedings in state court to acquire the easement so it could remove the cross. The state trial court judge granted the city prejudgment possession of the easement so the city could take down the cross and store it in a safe place pending the outcome of the eminent domain proceedings. The Lion's Club asked the state court of appeals to stay the trial court's order. That petition was denied for technical reasons that could have been cured. Instead, the Lion's Club came back to federal court seeking a temporary restraining order to prohibit removal of the cross. In this decision, the court denied that request invoking the Rooker-Feldman doctrine which requires a federal court to dismiss a case when the plaintiff is essentially attempting to appeal a state court decision through the lower federal courts rather than by filing appeals through state court channels.

Friday, March 10, 2023

Michigan Legislature Repeals 1931 Criminal Abortion Ban

The Michigan legislature on Wednesday gave final passage to HB-4006 (full text) which repeals Section 750.14 and 750.15 of the Michigan Penal Code. These sections, which were enacted in 1931, criminalize abortion and require pharmacies to keep records of purchasers of abortion medications and of physicians prescribing them. The bill now goes to Governor Gretchen Whitmer for her signature. It is expected that she will sign the bill. WZZM13 News reports on the bill. An injunction against enforcement of Section 750.14 had previously been issued by the state Court of Claims (see prior posting) and the section was effectively overridden by a state constitutional amendment guaranteeing reproductive freedom passed by Michigan voters last November.

Christian University Sues Over Termination of Student Teaching Arraangements

Suit was filed yesterday in an Arizona federal district court by a Christian university alleging that a public school district violated free exercise, free speech and other federal constitutional provisions as well as Arizona law when it terminated the student teacher agreement between the university and the school district. The complaint (full text) in Arizona Christian University v. Washington Elementary School District No. 6, (D AZ, riled 3/9/2023) alleges in part:

For the last eleven years, Arizona Christian and Washington Elementary School District, the largest elementary school district in Arizona, had a mutually beneficial partnership where students in Arizona Christian’s Elementary Education degree programs would student teach and shadow teachers in the School District....

Despite there being zero complaints about an Arizona Christian student teacher or alumnus, the School District decided to terminate its relationship with Arizona Christian and its students solely because of their religious status and beliefs on biblical marriage and sexuality.

ADF issued a press release announcing the filing of the lawsuit.

UPDATE: A settlement agreement (full text) was reached on May 3, 2023, under which the parties will enter a revised student teacher agreement. World News Group reports on the settlement.

Wyoming Legislature Passes Abortion Bans; Governor Undecided on Whether to Sign Them

On March 3, the Wyoming legislature gave final passage to two bills outlawing most abortions. HB 152 (full text) outlaws medical and surgical abortions with several exceptions. Exceptions include ectopic pregnancy, treatment of the woman for cancer or another disease where the medical treatment may be fatal to the unborn baby, preventing the death or substantial risk of death of the mother, and incest or sexual assault (which are to be reported to law enforcement). SF 109 (full text) prohibits prescribing or distributing any abortion drug, with exceptions for imminent physical peril that endangers the woman's life or health, and for rape or sexual assault. WyoFile reports that Governor Mark Gordon is still deciding whether or not to veto either or both bills.

UPDATE: Gov. Gordon signed SF 109 and allowed HB 152 to become law without his signature.

Satanic Temple Is Not Limited Purpose Public Figure for Defamation Law Purposes

In The Satanic Temple, Inc. v. Newsweek Magazine LLC, (SD NY, March 8, 2023), a defamation suit by The Satanic Temple (TST) over a Newsweek article about it, a New York federal district court concluded that TST is not a limited purpose public figure for purposes of defamation law. The court said in part:

,,, Plaintiff “advocates for the religious rights of its membership, and must sometimes take legal action to protect those rights.... Defendants contend that this activity is sufficient to make Plaintiff a limited purpose public figure because the “advocacy tends to attract attention.”...

But attention alone is not enough. Plaintiff must have “invited public attention to [its] views in an effort to influence others.” ... Defendants offer no evidence to show that Plaintiff “openly invited media attention,” by “issuing press releases, making public statements [or] addressing ‘open letters.’”... Plaintiff initiated lawsuits for the sole purpose of protecting the religious rights of its members, not to influence the minds of others. One does not voluntarily inject itself into a public controversy simply by filing a lawsuit to vindicate its rights, even if doing so incidentally attracts public attention.

Nevertheless, the court found that most of the statements cited by TST were not defamatory. Only a statement claiming that TST covered up sexual abuse survived the motion to dismiss. Volokh Conspiracy reports on the decision.

Thursday, March 09, 2023

Michigan Legislature Adds LGBTQ Protections to State Civil Rights Act

The Michigan legislature today gave final approval to Senate Bill 4 (full text) which adds "sexual orientation" and "gender identity or expression" to the anti-discrimination provisions of the Elliott-Larsen Civil Rights Act. The bill now goes to Governor Gretchen Whitmer for her signature. Detroit News reports that she has promised to sign the bill into law. During its consideration of the bill, the Michigan Senate rejected a number of proposed religious liberty amendments. The Michigan Supreme Court previously held that existing language of the Act bars sexual orientation discrimination. The state Court of Claims has held that it also bars discrimination on the basis of gender identity. (See prior posting.) Senate Bill 4 now makes these holdings explicit.

European Court Says Russian Regulation of Proselytizing Violated Human Rights Convention

In Ossewaarde v. Russia, (ECHR, March 7, 2023), the European Court of Human Rights held that legal restrictions imposed by Russia in 2016 on religious proselytizing violated the rights of a Baptist pastor who was a U.S. national living in Russia. The court found violations of Articles 9 (freedom religion) and 14 (prohibition of discrimination) of the European Convention on Human Rights. The court said in part:

By requiring prior authorisation from a duly constituted religious association and excluding private homes from the list of places where the right to impart information about religion may be exercised, the new regulation has left no room for people in the applicant’s situation who were engaged in individual evangelism. The requirement of prior authorisation also eliminated the possibility of spontaneous religious discussion among members and non-members of one’s religion and burdened religious expression with restrictions greater than those applicable to other types of expression.

... [S]o long as the new restrictions did not regulate the content of the religious expression or the manner of its delivery, they were not fit to protect society from “hate speech” or to shield vulnerable persons from improper methods of proselytism which ... could have been legitimate aims for the regulation of missionary activities.... [T]he Court finds that the need for such new restrictions, in respect of which the applicant was sanctioned for non-compliance, has not been convincingly established. Accordingly, the interference with the applicant’s right to freedom of religion on account of his missionary activities has not been shown to pursue any “pressing social need”....

While the application of the additional penalty of expulsion exclusively to non-nationals may be objectively justified by the fact that it cannot be applied to nationals, the Court finds no justification for the considerably higher minimum fines applicable to non‑nationals in respect of the same offence. The difference in treatment also appears hard to reconcile with the provisions of Russia’s Religions Act which posits that non-nationals lawfully present in Russia may exercise the right to freedom of religion on the same conditions as Russian nationals.

The court also issued a press release summarizing the decision.

Wednesday, March 08, 2023

Israel's Supreme Court Says Interior Ministry Must Register Marriages Performed on Zoom Through Utah

The Times of Israel and Jerusalem Post report on yesterday's decision by Israel's Supreme Court in Ministry of the Interior v. Brill (Israel Sup. Ct., March 7, 2023) (summary and full text of decision in Hebrew). The Court ruled that the Interior Ministry's Population and Immigration Authority must register marriages of Israelis performed online through Zoom by a Deputy Clerk in the U.S. state of Utah with the other marriage participants being located in Israel. Utah County has created a fairly simple procedure for "Marriage Ceremonies By Remote Appearance." The Supreme Court's ruling affirms decisions by two separate Israeli trial courts. The Supreme Court insisted that it was ruling only on the obligation of the Registry Clerk to register the marriage once presented with the relevant documentation and was not ruling on the marriage's validity. The Registry Clerk, the Court said, did not have authority to decide the difficult legal question of whether the marriage should be seen as having taken place in Utah or in Israel.

Previously, Israeli Jewish couples wishing to marry without leaving the country have been required to marry through the Chief Rabbinate. Civil marriage has been unavailable. Some 1200 Israeli couples have already married through Utah in ceremonies performed on Zoom. According to The Times of Israel:

The court’s ruling is a significant win for advocates of civil marriage in Israel who have campaigned for it for decades, but will be bitterly opposed by the coalition’s religious parties, which denounced the decision as soon as it was published.

The controversial ruling comes as Israel is in the midst of a bitter battle over proposed judicial reforms that, among other things, would give the Knesset (the Parliament) the power through a simple majority vote to overrule Supreme court decisions.

Suit Challenges California's Protection of Out-of-State Minors Seeking Gender-Affirming Health Care

Suit was filed yesterday in a California federal district court challenging the constitutionality of California Senate Bill 107 which protects out-of-staters obtaining gender transition services for a minor in California from the reach of laws in their home states that create civil or criminal liability for allowing a minor to receive such services. The complaint (full text) in Our Watch With Tim Thompson v. Bonta, (CD CA, filed 3/7/2023), claims that:

SB 107 will allow California doctors, via telehealth appointments, to prescribe cross-sex hormones to children in South Dakota or Utah, where gender-reassignment treatment is banned.

... SB 107 also denies parents the right to access their child’s medical information. Section 1 of the bill mandates that doctors conceal a child's medical information from parents if it is related to "gender identity" drugs and procedures. S.B. 107 § 1.

SB 107 amended California law to directly conflict with federal law by taking away other states’ rightful jurisdiction of children visiting California who seek – or claims to be seeking – puberty blockers, cross-sex hormones, irreversible gender reassignment surgery, etc. Section 4 of SB 107 updates the California Family Code to read: “[t]he presence of a child in this state for the purpose of obtaining gender-affirming health care or gender-affirming mental health care…is sufficient to meet the requirements” for California courts to exercise jurisdiction over a custody decision. S.B. 107 § 4. This ignores the proper and rightful jurisdiction of the child’s home state....

The suit alleges that the law violates constitutional rights of familial association as well as Article IV's full faith and credit clause. Advocates for Faith & Freedom issued a press release announcing the filing of the lawsuit.

Minnesota Appeals Court Decides When Religious Reasons for Vaccine Refusal Were Proven

In three cases decided within days of each other, the Minnesota Court of Appeals wrestled with the question of whether employees' claims of religious objections to the COVID vaccine were credible. At issue in each case was the former employee's entitlement to unemployment benefits. If the religious claim was legitimate, vaccine refusal would not constitute disqualifying employment misconduct.

In Washa v. Actalent Scientific, LLC, (MN App, Feb. 22, 2023), the court reversed the decision of an unemployment law judge. It found that substantial evidence did not support the unemployment-law judge's finding that a medical lab technician's refusal was based on safety concerns rather than religious beliefs. The technician had testified that he did not want to be defiled so that God could enter and he could avoid going to Hell.

In Quarnstrom v. Berkley Risk Administrators Company, LLC, (MN App., Feb. 22, 2023), the court remanded the case, finding that the unemployment-law judge had used the wrong standard in deciding whether an insurance adjustor's refusal was personal rather than religious. The court said in part:

The ULJ reasoned that Quarnstrom’s reasons for refusing the COVID-19 vaccine were not based on sincerely held religious beliefs because she did not cite to particular passages in the Bible, had not been instructed by a religious advisor to refuse the vaccine, and conceded that other members of her congregation could, consistent with their faith, choose to get a vaccine. But “the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect.”...

In McConnell v. Federal Reserve Bank of Minneapolis, (MN App, Feb. 24, 2023), the court in a 2-1 decision held that the record did not support the unemployment-law judge's conclusion that vaccine refusal by an FRB employee was based on secular, not religious, reasons. The majority said in part:

Although McConnell testified to concerns regarding the safety of the COVID-19 vaccine, she repeatedly tied those concerns back to her faith.... [S]he testified that, although she believes in some medical interventions, she “prayerfully consider[s] things.” The ULJ found McConnell’s testimony regarding safety concerns credible and rejected her testimony regarding her religious beliefs as not credible.... The ULJ offered no reason for crediting only part of McConnell’s testimony, and we can discern none.

Judge Segal dissented, saying in part:

I would conclude that, although it implicates constitutional rights, this appeal, like many others, turns on a credibility determination that is supported by the record. As such, I believe that precedent requires that we defer to the ULJ’s credibility determination.

Tuesday, March 07, 2023

India's Supreme Court Rejects Petition on Renaming of Historical Cultural Religious Places

In Upadhyay v. Union of India, (Sup. Ct. India, Feb. 27, 2023), the Supreme Court of India dismissed a petition brought by a leader of a Hindu nationalist party seeking to require the government to research and publish the "original names of ‘ancient historical cultural religious places’, named after barbaric foreign invaders." According to the court:

[Petitioner] invokes the right to dignity as flowing from Article 21 of the Constitution of India. He further submits that there is his fundamental right to culture which is protected in Articles 19 and 29. Again, he refers to Article 25 as the source of his right to religion and in regard to his fundamental right to know, he leans on Article 19(1)(a). He also has brought up the concept of ‘sovereignty’ being compromised by the continuous use of the names of the ‘brutal invaders’....

Rejecting petitioner's contention, the court said in part:

India, that is ‘Bharat’ in terms of the preamble, is a secular country....

The present and future of a country cannot remain a prisoner of the past. The governance of Bharat must conform to Rule of law, secularism, constitutionalism of which Article 14 stands out as the guarantee of both equality and fairness in the State’s action....

VOA has a lengthy background article discussing the case, explaining in part:

Beginning in the 12th century, a succession of Muslim empires — most notably the Delhi sultanate and the Mughal empire — dominated the Indian subcontinent for almost seven centuries. During Muslim rule, the growth of trade and commerce was accompanied by the brisk growth of towns and cities across the country.

The Muslim rulers established many towns, naming them after themselves or their ancestors....

In the last few years, several places with Muslim-sounding names have been renamed by BJP governments....

With the rise of Prime Minister Narendra Modi, the Hindutva — nationalist groups — have increased demands for renaming many Muslim-sounding locations.

Monday, March 06, 2023

Certiorari Denied in Challenge to Police Department Prayer Vigil

The U.S. Supreme Court today denied review in City of Ocala, Florida v. Rojas, (Docket No. 22-278, certiorari denied 3/6/2023) (Order List.) In the case the U.S. 11th Circuit Court of Appeals vacated and remanded a district court's Establishment Clause decision that had relied on the now-repudiated Lemon test. The district court had granted summary judgment to plaintiffs who challenged a prayer vigil co-sponsored by the Ocala police department held in response to a shooting spree that injured several children. (See prior posting.) Justices Gorsuch and Thomas filed separate opinions (full text). Justice Gorsuch, while agreeing with the denial of certiorari, contended that the district court should also reconsider the question of plaintiffs' standing as "offended observers," saying in part:

"... [M]ost every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an ‘offended viewer’ may ‘avert his eyes’ or pursue a political solution."

Justice Thomas dissented from the denial of review, saying in part:

[W]e should have granted certiorari to review whether respondents had standing to bring their claims. Standing is an antecedent jurisdictional requirement that must be established before a court reaches the merits....

I have serious doubts about the legitimacy of the “offended observer” theory of standing applied below.

Sunday, March 05, 2023

Fraud Claims Against Ministry May Not Proceed as Class Action

In Carrier v. Ravi Zacharias International Ministries, Inc., (ND GA, March 3, 2023), a Georgia federal district court held that claims for unjust enrichment and violation of the Georgia Fair Business Practices Act brought against a Christian apologetics ministry and the estate of its founder cannot proceed as a class action. Plaintiffs must instead proceed only in their individual capacities. The suit alleges that some of the contributions to the organization were used to facilitate or cover up the sexual misconduct by Ravi Zacharias.(See prior related posting.) The court found several reasons that a class action was not appropriate, saying in part:

[I]t is clear that the Court must require RZIM to disclose the identities of its donors in order to certify the class defined in the First Amended Complaint. The Proposed Class is defined as: “All persons in the United States who made contributions of monetary value to Ravi Zacharias and/or the Ravi Zacharias International Ministry from 2004 through February 9, 2021.”... It is impossible to certify such a class without compelling RZIM to disclose its donor lists. Compelled disclosure of RZIM’s donor lists and identification of the donors as financial supporters of a “sexual predator” would have an impermissible chilling effect upon their First Amendment rights to associate with RZIM and other likeminded religious believers....

In theory, a class could be certified that seeks an award of damages equal to all of the hundreds of millions of dollars contributed over the 16-year class period from 2004 through February 9, 2021. But the Plaintiffs admit that RZIM used the contributions of the Proposed Class to support a mission of spreading the Gospel, teaching new apologists, and trying to help people through humanitarian efforts. None of the donors were actually harmed by their contributions to RZIM, and it appears from the face of the First Amended Complaint that only a very small amount of the money contributed to RZIM was actually used to facilitate or cover up the sexual misconduct of Zacharias. Therefore, a class-wide damages award (even if possible) of all contributions would be inequitable and implausible....

While the Plaintiffs also ask the Court to enjoin the Defendants’ “unfair and/or deceptive acts or practices,” Zacharias died on May 19, 2020.... After that, RZIM commissioned an independent investigation of his misconduct and admitted wrongdoing; the results of that investigation have been well-publicized in the Christian community.... As pled, there is no further deceptive behavior by RZIM that would warrant injunctive relief.

Saturday, March 04, 2023

6th Circuit: Muslim-Owned Company Adequately Alleged Religious and National Origin Discrimination

In Speed Way Transportation, LLC v. City of Gahanna, Ohio, (6th Cir., March 1, 2023), the U.S. 6th Circuit Court of Appeals held 2-1 that a towing company adequately alleged an equal protection claim. Plaintiffs claimed religious and national origin discrimination in the city's rejection of their bid for a three-year towing contract. The court said in part:

Plaintiffs allege that no other business—let alone any other towing business—in the City of Gahanna, including the comparator firms Broad & James and Cal’s Towing, is owned, and operated by individuals of Egyptian national origin and Muslim faith.

Plaintiffs also sufficiently allege that they were treated differently than the two comparator firms.

Judge Suhrheinrich filed a dissenting opinion.

All 3 judges on the panel agreed that plaintiffs' other 1st and 14th Amendment claims were properly dismissed by the district court. The majority opinion said in part:

Plaintiffs have failed to allege that they engaged in “conduct”—a specific exercise of their religion—that the Free Exercise Clause protects. Lacking an allegation of “protected conduct,” the Plaintiffs cannot state a First Amendment retaliation claim based on the exercise of rights protected by the Free Exercise clause... The district court did not err in dismissing this count.

Friday, March 03, 2023

Objectors To Religious Motto on License Plates May Cover the Motto

In Griggs v. Graham, (SD MS, March 2, 2023), plaintiffs objected to the design of the default Mississippi license plates that included the state seal, a part of which was the motto "In God We Trust." Specialty plates that carry alternative designs are more expensive, and are not available at all for trailers, RVs and motorcycles. The court, relying on the U.S. Supreme Court's 1977 decision in Wooley v. Maynard, refused to require the state to issue separate non-religious license plates, saying in part:

[A]s in Wooley, the Plaintiffs have articulated a violation of their First Amendment free speech rights. They cannot be compelled to display “In God We Trust” on their license plate.

In Wooley, however, the Supreme Court did not require New Hampshire to create a blank license plate for persons who objected to “Live Free or Die.” No, the remedy in that case was an injunction blocking New Hampshire “from arresting and prosecuting [the Wooleys] at any time in the future for covering over [the objectionable] portion of their license plates... [T]he Supreme Court put the burden of compliance on the objectors—they were allowed to cover up the message—and then enjoined the state criminal law that penalized that action....

In Count II of their Amended Complaint, the Plaintiffs allege that the State has breached its duty of neutrality by elevating persons who believe in God while simultaneously “demonstrat[ing] . . . hostility toward the Plaintiffs and other Mississippi car owners who lack religious beliefs.”...

The Plaintiffs no doubt believe that more recent free exercise cases promise them greater rights to neutrality than this single 1977 case.... [I]f their desire is to overturn Wooley, they will have to seek that relief from a higher court.

In Romania, Roma Threaten International Litigation Against Romanian Orthodox Church

In Romania, a Roma leader is threatening to file a lawsuit in an international tribunal against the country's main religious denomination over enslavement of Roma that ended 167 years ago. Balkan Insight reports:

Dorin Cioaba, the self-proclaimed king of the Roma in Romania, told the Conference of European Roma on Wednesday in Sibiu that he will file an international lawsuit if the Romanian Orthodox Church does not recognise its involvement in the enslavement of the Roma between the 15th and 19th centuries in the Romanian Principalities.

But a Romanian Orthodox Church spokesman, Victor Banescu, on Wednesday responded that Roma and Romanians suffered together from slavery, which was abolished in the Romanian Principalities in 1855, and said the Church should not be singled out for exclusive responsibility.

“It is unfair to select only a certain category of facts, such as ‘slavery of the Roma’, and to apply this judgment key to only one institution, the Romanian Orthodox Church,” said Banescu....

The Roma who arrived in Moldova or Wallachia at first became slaves of the rulers. Over time, they became the property of monasteries or boyars, as confirmed by medieval historical sources.

The British historian Angus Fraser, a specialist in the history of the Roma, has said: “The Roma slaves of the monasteries often lived in their premises and performed certain jobs or were servants. Their situation was superior to the field working gipsies.”