Football Coach Can Proceed on Some Claims Against University After Termination for Refusing Covid Vaccine

In Rolovich v. Washington State University, (ED WA, May 30, 2023), a Washington federal district court refused to dismiss failure to accommodate and breach of contract claims by the head football coach of Washington State University who was terminated after he refused to comply with the state's Covid vaccine mandate. Discussing plaintiff's Title VII failure to accommodate claim, the court said in part:

Plaintiff’s claim that his Catholic faith informed his decision not to receive the COVID-19 vaccine is sufficient at the pleading stage to meet the prima facie element that he has a bona fide religious belief.... Plaintiff has adequately pleaded the first element of the prima facie case for a failure to accommodate claim. Defendant does not challenge the remaining elements of Plaintiff’s prima facie case....

Defendant asserts that Plaintiff’s accommodation request would have resulted in increased travel costs, harm to recruitment and fundraising efforts, and damage to WSU’s reputation and donor commitments, in addition to an increased risk of exposure to COVID-19 to student athletes and other coaching staff....

While these claims of undue hardship may be supported by evidence not presently before the Court, they are insufficient on their own to support a finding that Plaintiff’s accommodation would have imposed an undue hardship....

The court concluded that the WSU Athletic Director was entitled to qualified immunity as to the coach's free exercise and due process claims. USA Today reports on the decision.

EEOC Sues Over Refusal to Accommodate Christian Employee's Belief Without Back-Up from Religious Leader

The EEOC announced yesterday that it has filed a Title VII suit against Triple Canopy, Inc., a Reston, Virginia-based company that provides protective services to federal agencies. The EEOC, alleging failure to reasonably accommodate an employee's religious beliefs, said in part:

[D]espite the employee’s repeated explanations that he did not belong to a formal religious denomination but nonetheless held a Christian belief that men must wear beards, Triple Canopy denied his request for a religious accommodation because the employee was unable to provide additional substantiation of his beliefs or a supporting statement from a certified or documented religious leader. Additionally, Triple Canopy subjected him to intolerable work conditions that resulted in his discharge.

British Court: Humanist Eligible to Sit on Advisory Council for Religious Education

In R (on the Application of Bowen) v. Kent County Council, (EWHC (Admin), May 26, 2023), a British High Court justice rejected a ruling of the Kent Conty Council regarding who is eligible for appointment to an advisory body on religious education in the county's schools. The court explained:

Mr Bowen sought to be appointed to join Group A of the Standing Advisory Council for Religious Education (‘SACRE’) of Kent County Council (‘KCC’). Pursuant to section 390(4)(a) of the Education Act 1996 (‘the 1996 Act’) ..., Group A is required to be ‘a group of persons to represent such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area.’ KCC refused to appoint Mr Bowen because, as a humanist, Mr Bowen does not represent ‘a religion or a denomination of a religion’....

 ... [T]he ability to be a representative of a particular relevant belief on a SACRE is (at the very least) more than tenuously connected with that core value, so as to bring the alleged discrimination through the prevention of membership of SACRE within the ambit of article 9 [of the European Convention on Human Rights]..

... [A] religious education curriculum must, in order to be compliant with the HRA [Human Rights Act] 1998, cover more than religious faith teaching. The content of religious education teaching must include, at least to some degree, the teaching of non-religious beliefs (such as humanism).... 

The court concluded in part:

Analysed properly, when looking at membership of a group the purpose of which is to advise upon the content of a religious education syllabus, it is obvious that all people who are holders of belief systems appropriate to be included within that syllabus are in an analogous position. It is in my view clearly discriminatory to exclude someone from SACRE Group A solely by reference to the fact that their belief, whilst appropriate to be included within the agreed syllabus for religious education, is a non-religious, rather than a religious, belief.

Law & Religion UK has a lengthier analysis of the decision.

Uganda Enacts Harsh Ban on Homosexuality

Last Friday, Ugandan President Yoweri Museveni signed the Anti-Homosexuality Act 2023 (full text). The new law imposes the penalty of life imprisonment for anyone "who commits the offense of homosexuality." A person who commits the offense of "aggravated homosexuality" is liable for the death penalty. "Aggravated homosexuality" is defined, among other things, as homosexual relations with a child, a person with a disability, an elderly or unconscious person, a person who is mentally ill, or a homosexual act committed by the victim's parent or guardian, the offender is a serial offender, or the offense is committed by duress. Same-sex marriages are prohibited, as is promotion of homosexuality. Individuals have an obligation to report a reasonable suspicion that a person has or intends to engage in homosexual relations. A convicted person may be ordered to undergo "rehabilitation."

The Ugandan Parliament issued a press release announcing the President's signing of the Bill into law, with remarks by the bill's sponsor, Asuman Basalirwa. CNN reports on the passage of the law. On Monday, President Biden issued a Statement (full text) calling Uganda's new law "a tragic violation of universal human rights." U.S. Secretary of State Anthony Blinken also issued a Statement (full text) condemning Uganda's new law and saying in part:

[T]he Department of State will develop mechanisms to support the rights of LGBTQI+ individuals in Uganda and to promote accountability for Ugandan officials and other individuals responsible for, or complicit in, abusing their human rights.

Bloomberg News reports that a suit challenging the new law has already been filed in Uganda's Constitutional Court.

Sex Abuse Claims Arising Before Diocese Was Formed Are Disallowed in Bankruptcy Case

In In re Roman Catholic Diocese of Rockville Centre, New York, (SD NY Bkrptcy., May 26, 2023), a New York federal bankruptcy court disallowed nine sex-abuse claims filed in the bankruptcy reorganization of the Rockville Centre Catholic Diocese because they occurred before the Rockville Centre Diocese was formed and in territory which, at the time of the alleged abuse, belonged to the Diocese of Brooklyn. The court allowed claims by four other individuals to be filed in amended form because while they occurred before the Rockville Centre Diocese was incorporated in New York, they occurred after the Vatican formed the Diocese. The court said in part:

First, the Court finds that the First Amendment, and its intersection with canon law, is not a bar to the Court's ruling on this Objection. Second, the Court finds that the Objection must be sustained for Pre-Establishment Claims because the Diocese i) did not assume the prior liabilities and ii) the de facto merger exception does not apply. Finally, the Court finds that fairness requires allowing the Post-Establishment Claimants an opportunity to amend their claims.

Ministerial Exception and RFRA Defenses Rejected in Suit Over Firing of Bible Translation Company IT Employee

In Ratlliff v. Wycliffe Associates, Inc., (MD FL, May 26, 2023), a Florida federal district court refused to dismiss a Title VII employment discrimination suit brought against a Bible translation company by a software developer who was fired after the company learned that he had entered a same-sex marriage. The court rejected defendant's reliance on RFRA, concluding that "s RFRA does not apply to lawsuits in which the government is not a party."  It rejected defendant's "ministerial exception" defense, saying in part:

... Plaintiff does not qualify as a minister.

... Plaintiff was seemingly hired for his technological aptitude.... Accordingly, Plaintiff’s role was to employ his knowledge to develop software, not to act as a source of religious conveyance.... While the software’s purpose may have been to translate the Bible, Plaintiff himself was not doing so.... Further, Plaintiff’s direct interactions involved other software and database developers—not the individuals seeking out Defendant’s mission....

... [A]t bottom here, Plaintiff is a software developer, with no idiosyncratic religious title, background, education, or function.....

Memorial Day Proclamation Issued by President Biden

Congress has designated the last Monday in May as Memorial Day. President Biden last week issued A Proclamation on Prayer For Peace, Memorial Day, 2023 (full text). It reads in part:

On Memorial Day, we honor America’s beloved daughters and sons who gave their last full measure of devotion to this Nation....

In honor and recognition of all of our fallen service members, the Congress, by a joint resolution approved May 11, 1950, as amended (36 U.S.C. 116), has requested that the President issue a proclamation calling on the people of the United States to observe each Memorial Day as a day of prayer for permanent peace and designating a period on that day when the people of the United States might unite in prayer and reflection. The Congress, by Public Law 106-579, has also designated 3:00 p.m. local time on that day as a time for all Americans to observe, in their own way, the National Moment of Remembrance.

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, do hereby proclaim Memorial Day, May 29, 2023, as a day of prayer for permanent peace, and I designate the hour beginning in each locality at 11:00 a.m. of that day as a time when people might unite in prayer and reflection.

1st Circuit: Free Exercise Claim by Maine Healthcare Workers Over COVID Mandate May Move Forward

 In Lowe v. Mills, (1st Cir., May 25, 2023), the U.S. 1st Circuit Court of Appeals reversed in part a Maine district court's dismissal of a suit by seven health care facility workers whose request for religious exemptions from the state's COVID vaccine mandate was rejected.  The court said in part:

The claims against the State assert, among other things, that the Mandate, by allowing medical but not religious exemptions, violates the Free Exercise and Equal Protection Clauses of the U.S. Constitution....

We agree with the district court that the complaint's factual allegations establish that violating the Mandate in order to provide the plaintiffs' requested accommodation would have caused undue hardship for the Providers, and so affirm the dismissal of the Title VII claims. But we conclude that the plaintiffs' complaint states claims for relief under the Free Exercise and Equal Protection Clauses, as it is plausible, based on the plaintiffs' allegations and in the absence of further factual development, that the Mandate treats comparable secular and religious activity dissimilarly without adequate justification.

Recent Articles of Interest

From SSRN:

• Vipasna Nangal, Bill 21 and Canadian Jurisprudence - The Divergence of the Religious Neutrality Principle, (Canadian Law Review Research Paper No. 2 (2022).
• Lucia Ann Silecchia, COVID-19, Visitation and Spiritual Care: Responding to the Silent Suffering of the Isolated in Times of Crisis, (Baylor Law Review, Vol. 74, No. 3, 2022).
• Sanya Garg, Constructing the Other: Ethnonationalism and Its Trends, (April 25, 2023).
• Ahmer Bilal Soofi, Qur’anic Covenants: Is the Covenant a Basic Feature of the Qur’an?, (May 9, 2023).
• Lili Levi, Politicizing Antisemitism Amid Today's Educational Culture Wars, (Lewis & Clark Law Review, Forthcoming).
• Rachel Bayefsky, Tangibility and Tainted Reliance in Dobbs, (136 Harv. L. Rev. F. 384 (2023)).
• David L. Sloss, Guns, Abortion, and Courts, (Santa Clara Law Review, Vol. 56, (Forthcoming)).
• Kanak Kanti Karmakar, Significance as to Codification of Muslim Personal Law in Bangladesh, (March 28, 2023).

New Iowa Law Addresses Sexual Materials In School Curriculum; Parental Rights

Last Friday, Iowa Governor Kim Reynolds signed SF 496 (full text) which prohibits public schools from providing "any program, curriculum, test, survey, questionnaire, promotion, or instruction relating to gender identity or sexual orientation to students in kindergarten through grade six. It adds the requirement that various programs and educational materials be "age-appropriate", which is defined in the law as:

topics, messages and teaching methods suitable to particular ages or age groups of children and adolescents, based on developing cognitive, emotional, and behavioral capacity typical for the age or age group. “Age-appropriate” does not include any material with descriptions or visual depictions of a sex act....

School libraries can only contain "age-appropriate" material, except (pursuant to a pre-existing section of Iowa law (Sec. 280.6)):

religious books such as the Bible, the Torah, and the Koran shall not be excluded from any public school or institution in the state, nor shall any child be required to read such religious books contrary to the wishes of the child’s parent or guardian.

The new law amends the statutory health education requirement to eliminate the required teaching about "HPV and the availability of a vaccine to prevent HPV, and acquired immune deficiency syndrome."

The law prohibits schools from giving parents false or misleading information about a student's gender transition intent and requires school districts to inform parents of their student's request for gender-affirming care from a licensed practitioner employed by the school district.

The new law also provides:

[A] parent or guardian bears the ultimate responsibility, and has the fundamental, constitutionally protected right, to make decisions affecting the parent’s or guardian’s minor child, including decisions related to the minor child’s medical care, moral upbringing, religious upbringing, residence, education, and extracurricular activities. Any and all restrictions of this right shall be subject to strict scrutiny.

The law also requires school districts to publish policies relating to parents' requests for removal of materials from school libraries or classrooms and policies for requesting a student not be provided with certain materials.

CNN reports on the new law.

Connecticut Legislature Absolves Those Tried For Witchcraft In 17th Century

On Thursday, the Connecticut legislature gave final passage to House Joint Resolution 34 (full text), formally absolving by name some 34 individuals who were indicted or convicted of witchcraft and familiarities with the devil in the 17th century by courts in the early British colonies of Connecticut and New Haven. The Resolution concludes:

[T]he State of Connecticut apologizes to the descendants of all those who were indicted for the crimes of witchcraft and familiarities with the devil, convicted and executed and for the harm done to the accused persons' posterity to the present day, and acknowledges the trauma and shame that wrongfully continued to affect the families of the accused.

CtMirror reports on the passage of the Resolution. [Thanks to Thomas Rutledge for the lead.]

New Florida Law Allows Courts to Take Jurisdiction Over Minors Undergoing Gender Transition Treatment

On May 17, Florida Governor Ron DeSantis signed Senate Bill 254 (full text) which prohibits sex reassignment prescriptions or procedures for individuals under 18 years of age. It also allows Florida courts to take jurisdiction over a child who is present in the state when the child "has been subjected to or is threatened with being subjected to sex-reassignment prescriptions or procedures," and allows a parent to seek emergency custody of a child that is being subjected to sex reassignment prescriptions or surgery.  The new law also imposes informed consent procedures for sex-reassignment prescriptions or procedures for adults. Politifact discusses the reach of the new law. (Update: It is part of a 5-bill package (see prior posting.)

Texas Legislature Approves Chaplains in Public Schools

 The Texas legislature today gave final passage to SB763 (full text) which allows public schools to employ or accept as volunteers chaplains to provide support for students.  Chaplains need not be certified as teachers.  The only requirements are that they be subject to a criminal history review and that they have not been convicted or placed on deferred adjudication community supervision for an offense for which sex-offender registration is required. Texas Tribune reports on the passage of the bill, saying in part:

The bill was delayed last week after Texas House members sought an amendment that would have required chaplains to have similar accreditation as chaplains who work in prisons or the U.S. military. That amendment was defeated during negotiations between both chambers Friday.

Earlier this month, House Democrats also offered amendments to bar proselytizing or attempts to convert students from one religion to another; to require chaplains to receive consent from the parents of school children; and to make schools provide chaplains from any faith or denomination requested by students. All of those amendments failed.

[Thanks to Thomas Rutledge for the lead.]

White House Releases National Strategy to Counter Antisemitism

The White House today released The U.S. National Strategy to Counter Antisemitism (full text). The 60-page document sets out a strategy with four pillars:

• Pillar 1: Increase Awareness and Understanding of Antisemitism, Including its Threat to America, and Broaden Appreciation of Jewish American Heritage.
• Pillar 2: Improve Safety and Security for Jewish Communities.
• Pillar 3: Reverse the Normalization of Antisemitism and Counter Antisemitic Discrimination.
• Pillar 4: Build Cross-Community Solidarity and Collective Action to Counter Hate.

It lists over 100 actions the Administration plans to take.  Introducing the details of plans to increase awareness and understanding of antisemitism, the document says in part:

Antisemitism is a stereotypical and negative perception of Jews, which may be expressed as hatred of Jews. It is prejudice, bias, hostility, discrimination, or violence against Jews for being Jews or Jewish institutions or property for being Jewish or perceived as Jewish. Antisemitism can manifest as a form of racial, religious, national origin, and/or ethnic discrimination, bias, or hatred; or, a combination thereof. However, antisemitism is not simply a form of prejudice or hate. It is also a pernicious conspiracy theory that often features myths about Jewish power and control.

There are several definitions of antisemitism, which serve as valuable tools to raise awareness and increase understanding of antisemitism. The most prominent is the non-legally binding “working definition” of antisemitism adopted in 2016 by the 31-member states of the International Holocaust Remembrance Alliance (IHRA), which the United States has embraced. In addition, the Administration welcomes and appreciates the Nexus Document and notes other such efforts.

The White House also released a Fact Sheet summarizing the National Strategy. Jewish Insider reports on the National Strategy.

Court OK's Police Department's Rejection of Religious-Themed Flags and Uniform Patches

In Sangervasi v. City of San Jose, (ND CA, May 22, 2023), a California federal district court dismissed a suit by a police officer William Sangervasi who challenged the police department's refusal to adopt his proposed patch and flag designs. The court explained:

In August 2019, as part of the region’s celebration of Silicon Valley Pride Month, Chief Garcia raised a rainbow-themed LGBTQ pride flag in place of the City of San Jose flag on the flagpole outside SJPD headquarters....

On July 28, 2020, Chief Garcia issued official SJPD Memorandum #2020-33, introducing a rainbow-themed LGBTQ pride shoulder patch for the SJPD uniform.... 

On November 11, 2020, Mr. Sangervasi sent a memorandum to Chief Garcia titled, “Desecration of The Uniform by Memorandum #2020-33.” ... Mr. Sangervasi’s memorandum “detailed his intent to forever protect and defend the sacrosanct neutral and impartial visual appearance of The American Uniform” by submitting various “free speech patch and flag designs” that he wanted the SJPD to adopt.... Mr. Sangervasi proposed patch designs featuring phrases and images such as “natural hetero-sexual pride,” what appears to be Christian rosary beads encircling the traditional SJPD crest, and an image of the Christian archangel Saint Michael.... He proposed flag designs featuring phrases and images including, for example, “father + mother = girls + boys,” “white lives matter,” and the confederate battle flag.... Two days later... Mr. Sangervasi was placed on indefinite administrative leave.... On December 11, 2020, Mr. Sangervasi received a letter from Acting Chief Dave Knopf denying Mr. Sangervasi’s demand that the SJPD adopt Mr. Sangervasi’s patch and flag designs.

The court, rejecting plaintiff's free exercise, free speech and equal protection claims, held:

Mr. Sangervasi does not allege any burden on his sincere religious practice pursuant to a policy that is not neutral or generally applicable. Rather, he complains that, if the SJPD authorizes specialty uniform patches to be worn on a voluntary basis, it must allow him to wear religion-themed patches of his own design.... These allegations fail to state a claim for relief because the City has not created a public forum in which Mr. Sangervasi has a right to express any views, let alone those views that may be grounded in religious practice or belief. In the absence of such a forum and as discussed above, the SJPD’s patch designs amount to government speech and do not burden Mr. Sangervasi’s religious practice.

Suit Challenges High School-College Dual Enrollment Plan Exclusion of Some Religious Colleges

Suit was filed yesterday in a Minnesota federal district court challenging a Minnesota statute that excludes certain religious colleges from participating in the state's Postsecondary Enrollment Options (PSEO) program. The program allows students to earn college credits free of charge at public or private colleges while still in high school. An amendment to the PSEO law which will take effect on July 1 bars colleges from participating in the program if the school requires a faith statement from high schoolers or if any part of the admission decision is based on a high schooler's religious beliefs or affiliations.  The complaint (full text) in Loe v. Walz, (D MN, filed 5/24/2023), alleges that the new law variously violates the free exercise, free speech, Establishment Clause and equal protection rights of religious families and religious colleges. The complaint alleges in part:

172. The amendment requires Plaintiffs Crown [College] and [University of] Northwestern to choose between maintaining their religious identities and receiving an otherwise available benefit for which they have been eligible for decades. 

173. It likewise forces the Loe family and the Erickson family to either forgo receipt of an otherwise-available benefit or forgo their right to seek an education in accordance with their religious beliefs.

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

Parents Charge That Elementary School Pride Stories Violate Their Free Exercise Rights

Muslim and Christian parents filed suit yesterday in a Maryland federal district court challenging the Montgomery County School Board's policy that introduces their pre-K and elementary school students to various "Pride Storybooks." The parents are seeking the right to opt their children out of family life and human sexuality instruction, including reading of the Storybooks. The complaint (full text) in Mahmoud v. McKnight, (D MD, 5/24/2023), alleges that requiring their children to listen to the Storybooks violates the parents free exercise and free speech rights, as well as their right to control their children's education.  The complaint alleges in part:

222. The School Board’s policy to mandate the Pride Storybooks to discourage a biological understanding of human sexuality is not neutral toward religion, in part because it assumes that traditional religious views regarding family life and sexuality as supported by sound science and common sense are hurtful, hateful, or bigoted.

223. This burdens the Parents’ freedom to form their children on a matter of core religious exercise and parenting: how to understand who they are.

224. It also burdens the Student Plaintiff’s freedom to receive an education in an environment free from religious discrimination....

254. Far from guaranteeing a fair and objective discussion of religious perspectives, the School Board’s Pride Storybooks and corresponding “resource guide” preclude religious viewpoints on the topics of sexual orientation and gender identity—because of their viewpoint. That is unconstitutional.

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

Deputy Has Qualified Immunity In Suit Claiming His Failure to Intervene in Establishment Clause Violation

 In White v. Goforth, (6th Cir., May 18, 2023), the U.S. 6th Circuit Court of Appeals held that Sheriff's Deputy Jacob Goforth had qualified immunity in a suit against him for failing to intervene in conduct by Daniel Wilkey, an on-duty officer who is also a preacher. Wilkey called Goforth asking him to witness a baptism at a nearby lake.  The court explained:

Unbeknownst to Goforth, Wilkey had stopped Shandle Riley earlier that evening and found her in possession of marijuana. Wilkey told Riley that if she agreed to let him baptize her, he would issue her a citation and not take her to jail. She agreed and followed Wilkey in her car to a nearby lake. When Goforth arrived, he saw what appeared to be a consensual, if improper, situation.... Critically, however, Goforth never learned of Wilkey’s improper quid pro quo.....

Reversing the Tennessee district court's denial of qualified immunity, the appeals court said in part:

Riley asserts that Wilkey’s coerced baptism of her violated the Establishment Clause. That may well be so. Coercion “was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.”... Threatening jail time for refusing Christian baptism seems an easy fit for this category. But even if Wilkey violated Riley’s constitutional rights, Wilkey is not before us; only Goforth is. There is nothing in the record indicating that Goforth knew of Wilkey’s quid pro quo....

The district court thought that, even absent coercion, it was clearly established that an officer in Goforth’s position would be “liable for failing to intervene if a reasonable observer” would have perceived a governmental endorsement of religion, as defined by the Lemon test and its progeny....We cannot agree. First, Kennedy clarified that the Supreme Court had “long ago abandoned Lemon and its endorsement test offshoot.” ... If that is so, then Goforth could not have had a clearly established duty to stop Wilkey from violating it....

Moreover, we can find no case that had ever found an officer liable where his fault was not his own endorsement of religion, but his failure to intervene in someone else’s.

Court Defines Clergy-Penitent Privilege Under Montana Law

Caekaert v. Watchtower Bible and Tract Society of New York, (D MT, May 22, 2023), involved a motion by plaintiff to compel production of documents that the Jehovah's Witnesses parent body withheld in discovery claiming clergy-penitent privilege. At issue were reports from congregations to the parent body of known child molesters currently or formerly in appointed positions in the congregation. In defining the scope of the clergy-penitent privilege, the Montana federal district court said in part:

The Court recognizes the deference it must give religious groups in the organization of their internal affairs. However ... such deference does not mean a religious organization determines for the Court what is privileged merely by contending that it is confidential under the religious body's doctrine...

At the same time, the Court recognizes that the privilege is not so narrow so as to exclude non-penitential statements made in the course of the church's disciplinary process....

Illinois AG Releases Report on Catholic Clergy Child Sex Abuse

Yesterday, Illinois Attorney General Kwame Raoul released its 696-page Report on Catholic Clergy Child Sex Abuse in Illinois (full text). The Report stems from an investigation thar began in 2018. The Attorney General's message that begins the report says in part:

As a direct result of this investigation and my team’s persistence, the dioceses have improved their policies relating to their investigations of child sex abuse allegations and the public disclosure of substantiated child sex abusers. Before this investigation, the Catholic dioceses of Illinois publicly listed only 103 substantiated child sex abusers. By comparison, this report reveals names and detailed information of 451Catholic clerics and religious brothers who abused at least 1,997 children across all of the dioceses in Illinois.

The Report concludes with a series of recommendations. It points out that in 2014, Illinois eliminated the statute of limitations for civil claims of child sex abuse. However, that law does not permit filling of claims for which the statute of limitations had run before 2014, and the Illinois Supreme Court has held that creating a look-back window for such claims would require an amendment to the state constitution. The Report suggests that Dioceses establish independent mediation and compensation programs that would cover these claims. AP discusses reactions to the AG's Report.