Religion Clause

Monday, April 03, 2023

Muslim Corrections Officer Applicant Can Move Ahead With 1st Amendment and Title VII Claims

In Talukder v. State of New York, (SD NY, March 31, 2023), a New York federal district court allowed a Sunni Muslim applicant to the New York Department of Corrections Training Academy to move ahead with his 1st Amendment free exercise claim as well as his Title VII failure to accommodate and disparate treatment claims. Plaintiff sought to wear a 3-inch beard for religious reasons, while the Academy was unwilling to permit any beard longer than one-eighth of an inch. Finding a free exercise violation was adequately alleged, the court said in part:

DOCCS allows numerous uniformed staff to grow beards for secular reasons, while simultaneously denying trainees the same accommodation on religious grounds....

The justification that Defendants proffer for the ban—that “all trainees must pass a respirator fit test and applicable respirator training to become certified correctional officers,” ...—raises a fact-intensive inquiry that fails to justify dismissal at this stage. The Complaint raises a plausible inference that a policy requiring all trainees to be clean-shaven or wear facial hair no longer than 1/8 of an inch in order to pass a respiratory fit-test is not narrowly tailored to advance the goal of preparing trainees to become corrections officers—particularly given that many of those officers will never have to wear a respirator at all....

Saturday, April 01, 2023

Maker of Religious-Themed Military Dog Tags Can Move Ahead with 1st Amendment Claims Against DoD

In Shields of Strength v. U.S. Department of Defense, (ED TX, March 31, 2023), a Texas federal district court allowed a company that manufactures military personnel "dog tags" to move ahead with certain of its 1st Amendment claims against the military that sought to prevent the company from producing dog tags with Biblical or other religious references near symbols or phrases that the military had registered for trademark protection. DoD regulations provide:

DoD marks may not be licensed for any purpose intended to promote ideological movements, sociopolitical change, religious beliefs (including non-belief), specific interpretations of morality, or legislative/statutory change.

The court said in part:

If the military does not have meaningful conditions and controls on the licensing of its trademarks, the military may be deemed to have opened a limited public forum for private expression using those marks.... If a public forum were opened, disallowing views that promote religious beliefs would seem a prima facie case of unconstitutional viewpoint discrimination. So defendants’ motion to dismiss the viewpoint-discrimination claims ... is denied....

For purposes of the religious-exercise claims ... the court assumes that any marks not licensed for use on Shields’ dog tags are valid trademarks, used in a way likely to confuse consumers, without a defense to liability (other than religious-exercise rights). The question under Counts 2 and 8 is whether the military’s failure to license that usage violates the Free Exercise Clause or RFRA.

The answer turns on the same categorization called for by the free-speech challenge.... If the military’s grants of trademark licenses are government speech, then any burden from the military’s licensing choice is justified by the compelling governmental interest that animates trademark law generally and, specifically, a trademark owner’s liberty to decide and control its own vision of a mark’s reputation....

On the other hand, if the military’s program here is so unrestrictive that the military has surrendered any licensing voice—making its licensing program a limited public forum for private speech using the marks—that deficiency also negates the compelling public interest for denying Shields’ ability to use the marks....

However, the court refused to issue a preliminary injunction because it found no substantial likelihood of success on the claims.

Friday, March 31, 2023

White House Recognizes Transgender Day of Visibility

Today the White House posted a Statement from President Joe Biden on Transgender Day of Visibility (full text) which says in part:

I want every member of the trans community to know that we see you. You’re each made in the image of God, and deserve love, dignity, and respect. You make America stronger, and we’re with you.

The White House also issued a Fact Sheet: White House Honors Transgender Day of Visibility (full text), setting out a long list of initiatives of the Biden-Harris Administration supporting transgender individuals.

Church Preschool Challenges California's Anti-Discrimination Rules for Food Program Participants

Suit was filed earlier this month in a California federal district court by a Christian church and its preschool challenging the state's agreement form that was required for participants in the state's Child and Adult Food Care Program. The complaint (full text) in Church of Compassion v. Bonta, (SD CA, filed 3/10/2023), alleges in part:

The new 2022 CDSS PSA required the Church and Dayspring to certify that their management of the CACFP Food Program will be “operated in compliance with all applicable civil rights laws and will implement all applicable non-discrimination regulations....

Because of the Church’s orthodox religious beliefs regarding human sexuality, it was unable to comply with the PSA when it submitted its application for the 2022-2023 year. Specifically, Dayspring signed the PSA statement, but deleted the words “sexual orientation” and “gender identity.”

The complaint alleges that the requirement violates plaintiffs' Free Exercise, Free Speech and Establishment Clause rights. National Center for Law & Policy issued a press release announcing the filing of the lawsuit.

Militant Pro-Abortion Group Sued Under Access to Clinic Act

Suit was filed this week in a Florida federal district court against a militant abortion rights group by a pro-life pregnancy counseling and medical clinic that was vandalized and whose fundraising gala was disrupted by the group. The complaint (full text) in Heartbeat of Miami, Inc. v. Jane's Revenge, (MD FL, filed 3/29/2023), charges violations of the Freedom of Access to Clinic Entrances Act, trespass, civil conspiracy and violation of the Florida RICO statute.

At the same time, Florida's attorney-general filed suit in the same court against two members of the organization who allegedly participated attacks against three abortion counseling centers in Florida. The complaint (full text) in Moody v. Freestone, (MD FL, filed 3/29/2023), seeks an injunction and civil penalties, invoking the Freedom of Access to Clinic Entrances Act.

Daily Signal and Fox News report on the lawsuits.

Fraudulent Misrepresentation Claims Against LDS Church Are Dismissed

In Gaddy v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (D UT, March 28, 2023), a Utah federal district court, in a 56-page opinion, dismissed a Second Amended Complaint in a class action lawsuit brought by former members of the LDS Church. The suit alleges that the Church has fraudulently misrepresented its founding to its members while its leaders did not have a sincere religious belief in the narrative. It also alleges that the Church made fraudulent misrepresentations about the use of money received from members' tithing. The court said in part:

The court has twice considered and rejected Plaintiffs’ arguments that fraud-based claims directed towards the Church’s alleged misrepresentations and omissions concerning the First Vision, Church History, translations of the Books of Mormon and Abraham, and locations of events in the Book of Mormon are not subject to the church autonomy doctrine. The court also previously rejected Plaintiffs’ theory that they can avoid the church autonomy doctrine by arguing the sincerity of the Church’s beliefs or basing their claims on a theory of fraudulent omissions....

By pleading even more facts concerning Joseph Smith, Plaintiffs seek to have the court adjudicate the truth or falsity of the Church’s beliefs and teachings concerning its founder by challenging the accuracy of facts surrounding those beliefs. But again, “[i]f religious events themselves sit beyond judicial purview, religious beliefs concerning the details of those events must enjoy the same protection.”...

The court agrees with the Church that Plaintiffs’ fraud in the inducement claim fails, not for running into a First Amendment bar on the falsity or reliance elements, but for a more fundamental failure to plead the claim with the specificity required under Rule 9(b)....

The court agrees with the Church that Plaintiffs fail to state a claim for fraudulent nondisclosure on the tithing theory because Plaintiffs cannot show that a legal duty exists between the Church and its members requiring disclosure of material financial information....

The court is unaware of any case law supporting the proposition that “constructive fraud based on a breach of promises of future performance” is an independent, recognized cause of action in Utah....

Because the UCSA [Utah Charitable Solicitation Act] does not appear create a private cause of action, and because effectively Plaintiffs concede this point in their Opposition, the court dismisses Plaintiffs’ claim for violation of the UCSA....

The court agrees with the Church that Plaintiffs have failed to plead a cognizable civil RICO claim....

Thursday, March 30, 2023

Kentucky Legislature Overrides Veto of Transgender Bill Restricting Schools and Doctors

As reported by AP, the Kentucky legislature yesterday voted to override Kentucky Governor Andy Beshear's veto of Senate Bill 150 (full text). The elaborate bill requires schools to notify parents of all school health and mental health services related to human sexuality, contraception or family planning and of parents' right to withhold consent for such services.

The bill prohibits policies that keep student information confidential from parents and policies that require use of pronouns that do not conform to a student's biological sex. However, information may be kept from parents if disclosure is likely to result in the child becoming abused or neglected.

Under the bill, no instruction on sexuality may be offered to children below grade 6, and no course at any grade level may discuss gender identity, gender expression or sexual orientation. Parental consent is required for students to take sex education courses. However, this does not bar discussing sexuality of historic persons or answering relevant student questions about human sexuality.

The bill bars schools from allowing students to use restrooms or locker rooms reserved for students of the opposite biological sex. However other accommodations should be made for transgender students.

Also, health care providers are prohibited from furnishing puberty blockers or providing other gender transition procedures to minors.

Governor Beshear's March 24 veto message said in part:

Senate Bill 150 allows too much government interference in healthcare issues and rips away the freedom of parents to make medical decision for their children. Senate Bill 150 further strips freedom from parents to make personal family decisions on the names their children are called and how people should refer to them....

I am also vetoing Senate Bill 150 because my faith teaches me that all children are children of God and Senate Bill 150 will endanger the children of Kentucky....

Lex18 reports on the bill.

11th Circuit: Jewish Student's Masking Objections Do Not Get 1st Amendment Protection

In Zinman v. Nova Southeastern University, Inc., (11th Cir., March 29, 2023), the U.S. 11th Circuit Court of Appeals affirmed a Florida federal district court's dismissal of a suit by a Jewish law student challenging on religious grounds his school's COVID mask mandates. The court said in part:

None of Zinman’s claims are viable. His application for injunctive relief is moot as to all of the defendants. Zinman’s damages claims fare no better. His Title II claim fails because damages are not available under Title II of the Civil Rights Act. His Title VI claim fails because the Second Amended Complaint does not contain any factual allegations -- as it must -- from which we could infer that any of the masking decisions NSU made were animated by discriminatory intent. And his § 1983 claims fail because Zinman has not plausibly alleged that any of his constitutional rights were violated.....

Zinman has failed to state a claim for a free exercise violation arising under the First Amendment because Zinman does not explain why the mask mandates were not neutral and generally applicable. Neutral rules of general application are subject only to rational basis review.... The adoption of mask mandates easily passed this test....

Zinman has also failed to state a claim for a free speech violation because wearing a mask is not speech or expressive conduct protected by the First Amendment....

The likelihood is exceedingly remote and attenuated that a reasonable passerby observing Zinman without a mask on would interpret his unmasked status as an attempt to convey some sort of message. There are so many more probable explanations for a person’s decision to go unmasked that have nothing to do with conveying any sort of message -- political, religious, or otherwise. Thus, for example, a person may not be masked for medical reasons, or because he left his mask at home, or perhaps just on account of a personal dislike for masking.

Wednesday, March 29, 2023

Christain School Sues Over "Poison Pill" Provisions That Exclude It from Maine's Tuition Payment Program

Suit was filed this week in a Maine federal district court by a Christian school challenging 2021 amendments to Maine's Human Rights Act that operate to exclude the school from participating in Maine's tuition payment program for students from districts without public high schools. The motion for a preliminary injunction (full text) which was filed along with the complaint in Crosspoint Church v. Makin, (D ME, filed 3/27/2023), focuses on provisions in 5 MRSA §4602 that now require schools that participate in the tuition reimbursement program to comply with the sexual orientation and gender identity non-discrimination provisions. Religious schools that do not receive public funding are exempt from that provision. The law also now provides that "to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing." Plaintiff characterizes these provisions as "poison pills" that prevent it from participating in the tuition payment program without violating its religious beliefs after the U.S. Supreme Court in Carson v. Makin upheld the right of sectarian schools to participate. Plaintiff seeks a preliminary injunction based on violations of the Free Exercise, Free Speech and Establishment Clauses. Washington Times reports on the lawsuit.

9th Circuit Hears Oral Arguments on Fire Chief's Religious Discrimination Claim

On Monday, the U.S. Court of Appeals for the 9th Circuit heard oral arguments in Hittle v. City of Stockton (video of full oral arguments). In the case (full text of district court opinion), a California federal district court rejected religious discrimination and retaliation claims brought by Ronald Hittle, Stockton, California's former Fire Chief. He was fired in part for attending a two-day religious "Global Leadership Summit" with three other city employees on city time and using a city vehicle. First Liberty issued a press release on the oral arguments.

Tuesday, March 28, 2023

New Florida Law Expands Eligibility for School Vouchers

Florida Governor Ron DeSantis yesterday signed HB1 (full text) into law. The law expands eligibility for school vouchers which were previously limited to low-income families. Now low-income families have a priority, but others are eligible as well. The House of Representatives Staff Analysis of the Bill says in part:

For decades, Florida has been a national leader in providing high quality education options for its parents and students. In addition to a myriad of public options, Florida offers scholarship programs that allow parents of eligible students to register and attend private schools that may better serve a student’s particular needs or to provide educational options for students with disabilities. These programs primarily consist of the Florida Tax Credit Scholarship (FTC), the Family Empowerment Scholarship for students attending private school (FES-EO), and the Family Empowerment Scholarship for students with disabilities (FES-UA)....

The bill expands eligibility for the FTC and FES-EO scholarships to any student who is a resident of Florida and is eligible to enroll in kindergarten through grade 12 in a public school.... The bill retains the priority for FTC and FES-EO scholarships for those students whose household income does not exceed 185 percent of the federal poverty level (FPL) and creates a second priority for households with income not exceeding 400 percent of the FPL.

Under the bill, each parent of an eligible student will receive an empowerment savings account to choose among a variety of options to customize their child’s K-12 education. The bill expands the scope of authorized uses for scholarships....

News Service of Florida reports on the new law.

Prosecutors' Council Releases Report on Past Child Sexual Abuse by Catholic Clergy In Georgia

Last week, the Prosecuting Attorneys Council of Georgia released its Report of Child Sexual Abuse in the Archdiocese of Atlanta and the Diocese of Savannah (full text) (press release). The 267-page report stems from a review of Catholic Archdiocese and Diocese records, files, documents and reports. Church officials cooperated fully in the review. The Report concludes in part:

This file review did not uncover any current, ongoing, or unreported sexual abuse by priests or criminal conduct. It did reveal historical criminal allegations in Georgia against priests. None of those priests could be prosecuted because they are either deceased, have already been prosecuted or the statute of limitations expired long before the review was agreed to by the parties. The evaluation of the files also uncovered that the Church, outside of and within Georgia, relocated priests after they were accused of sexually abusing children. At times, it appeared the church did so without providing notice to officials in the new parish, diocese, or archdiocese of the prior accusations of sexual abuse of children....

Further, this review uncovered historical acts by the church and its personnel that enabled sexual abuse of minors by its priests and prevented the discovery and investigation of these acts by public or civil authorities....

[S]ince 2002, the Archdiocese of Atlanta and the Diocese of Savannah have been notifying the appropriate authorities either by contacting the Department of Family and Children Services or law enforcement of child abuse allegations reported to their organizations....

Atlanta Journal Constitution discusses the Report.

Certiorari Denied in Catholic School Teacher's Suit Against His Union

The U.S. Supreme Court yesterday denied review in Jusino v. Federation of Catholic Teachers, Inc., (Docket No. 22-662, certiorari denied 3/27/2023). (Order List). In the case, the U.S. 2nd Circuit Court of Appeals held that the National Labor Relations Act does not apply to a Catholic parochial school teacher's duty-of-fair-representation claim against his union.

Monday, March 27, 2023

Yeshivas Win Partial Victory In Challenge To New York's Substantial Equivalency Rules

In In re Parents for Educational and Religious Liberty in Schools v. Young, (Albany County Sup. Ct., March 23, 2023), a New York state trial court gave a partial victory to Orthodox Jewish day schools (yeshivas) that are challenging the state's "substantial equivalency" regulations. The regulations require that students in non-public schools receive instruction in required subject areas that is substantially equivalent to instruction received by public school students in the same district. While the court rejected petitioners' constitutional challenges, it held that the Department of Education exceeded its authority in promulgating rules that require parents to withdraw their children from schools that do not meet the substantial equivalency standards and enroll them elsewhere, and which allow local school authorities to shut down schools that do not meet the required standards. The court said in part:

[T]the statutory scheme places the burden for ensuring a child's education squarely on the parent, not the school.... [T]he Compulsory Education Law does not authorize or contemplate the imposition of penalties or other consequences upon a nonpublic school that has been found not to provide substantially equivalent instruction.

... [T]the court finds that respondents lack authority to direct parents to completely unenroll their children from nonpublic schools that have been determined to fall short of meeting each and every substantial equivalency criteria, nor do respondents have authority to direct the closure of such schools. Rather, the parents should be given a reasonable opportunity to prove that the substantial equivalency requirements for their children's education are satisfied by instruction provided through a combination of sources. For example, parents should be permitted to supplement the education that their children receive at a nonpublic school with supplemental instruction that specifically addresses any identified deficiencies in that education, such as by providing supplemental home instruction in compliance with the home schooling regulations as set forth in 8 NYCRR 100.10. Therefore, if a student is found to be attending a school that is not deemed "substantially equivalent", the home schooling rules shall apply if the parent chooses to keep their child enrolled at that school. As such, the parent may submit a plan that utilizes said school along with supplemental education as needed to create a satisfactory Individualized Home Instruction Plan....

Hamodia reports on the decision. [Thank to Thomas Rutledge for the lead.]

NYPD Administrative Review of Religious Exemption Claim Was Arbitrary

In Matter of Quagliata v New York City Police Department, (NY County Sup. Ct., March 17, 2023), a New York state trial court remanded a case in which an administrative Panel refused to grant an NYPD police officer a religious exemption from New York City's COVID vaccine mandate. The court said in part:

Inasmuch as the Panel’s determination sets forth absolutely no rationale whatsoever for its conclusions, other than to incorporate the conclusory reasons articulated by the NYPD EEOD, the Panel’s determination is facially arbitrary and capricious, and may be annulled on that ground alone....

Even were the court directly to review the NYPD EEOD’s initial determination, it nonetheless would be constrained to conclude that the initial determination also was arbitrary and capricious. The NYPD EEOD’s determination is a prime example of a determination that sets forth only the most perfunctory discussion of reasons for administrative action....

The court’s conclusion in this regard should not be construed as a ruling that, had the petitioner’s stated reasons for his request for an exemption, and his discussion of religious doctrine, properly been analyzed..., the petitioner’s contentions would have constituted a proper basis for an exemption...

With respect to ... violation of his First Amendment right to free exercise of religion and discrimination in employment..., the petitioner has not established either that the City’s vaccine mandate or the termination of his own employment were premised upon religion, as he has not demonstrated that his conclusions about sin, the use of embryonic stem cells in the development and improvement of various vaccinations and medications, and the alleged proscription of desecrating the human body via any genetic manipulation that mRNA vaccinations might generate, are established Catholic doctrine, or merely his personal interpretation of his obligations as a practicing Catholic.

Friday, March 24, 2023

ADL Report: Antisemitic Incidents In U.S. In 2022 Reach New High

Yesterday the Anti-Defamation League issued its 2022 annual Audit of Antisemmitic Incidents. The Executive Summary rads in part:

In 2022, ADL tabulated 3,697 antisemitic incidents throughout the United States. This is a 36% increase from the 2,717 incidents tabulated in 2021 and the highest number on record since ADL began tracking antisemitic incidents in 1979. This is the third time in the past five years that the year-end total has been the highest number ever recorded.

Incidents increased in each of the major Audit categories: antisemitic harassment increased 29% to 2,298; antisemitic vandalism increased 51% to 1,288 and antisemitic assaults increased 26% to 111. The vast majority of antisemitic assaults (107 out of 111) were perpetrated without the use of a deadly weapon. There was one fatality. Notably, visibly Orthodox Jews were targeted in 53% of the assault incidents nationally. This year, no assaults perpetrated against the Jewish community resulted in mass causalities.

President Sends Ramadan Greetings

Yesterday President Biden issued a Statement (full text) extending best wishes from himself and the First Lady to Muslims across the U.S. and around the world as they begin the holy month of Ramadan. The Statement says in part:

Today especially, we remember the universal human right to practice, pray, and preach our faiths peacefully and openly. And together with our partners, the United States stands in solidarity with Muslims who continue to face oppression—including Uyghurs in the People’s Republic of China, Rohingya in Burma, and other Muslim communities facing persecution around the world.

Thursday, March 23, 2023

Immigration Officials Violated Pastor's Free Exercise Rights

In Dousa v. U.S. Department of Homeland Security, (SD CA, March 21, 2023), a California federal district court held that U.S. immigration officials violated the free exercise rights of Kaji Dousa, a pastor at New York City's Park Avenue Christian Church. Dousa worked extensively with immigrants in Mexico and at the southern border. The court concluded that her rights were violated when in December 2018 a U.S. Customs and Border Patrol official e-mailed the Mexican government urging it to deny the pastor entry into Mexico and to send her back to the United States. Dousa performed religious marriage ceremonies for immigrant couples with children entering the United States who were in common-law marriages. This made it more likely that they would not be subject to family separation in the U.S. The court said in part:

While the United States undoubtedly has a compelling state interest in protecting the border, Oliveri’s admission that the email was “[l]iterally, creative writing . . . [w]ithout any basis” indicates that there exists no substantial state interest in requesting that Mexican authorities deny entry to Dousa. And, as evidenced by the United States’ other investigative efforts, there exist more “narrowly tailored” approaches to achieve border security. Dousa therefore has established that the CBP violated her Free Exercise rights by restricting her ability to minister to migrants in Mexico.

The court however rejected Dousa's claim that the investigation of her activities violated her free exercise rights. The court ordered:

... Defendants SHALL COMMUNICATE in writing to appropriate Mexican immigration authorities that their request in Oliveri’s December 10, 2018 email is fully and immediately rescinded and revoked as to Dousa.

[Thanks to Heather Kimmel for the lead.]