Religion Clause

Tuesday, June 27, 2023

Kansas AG Says Previously Modified Birth Certificates Must Be Changed Back to Reflect Biological Sex

In April, the Kansas legislature overrode Governor Kelly's veto of Senate Bill 180 which defines "sex" as biological sex for purposes of various state laws, rules and regulations. Yesterday, Kansas Attorney General Kris Kobach issued Attorney General Opinion 2023-2 (full text) which interprets the new law as requiring birth certificates that have previously been modified to now be changed back to reflect the individual's sex assigned at birth. Similarly, driver's license records that have been modified must be changed back and future licenses must be issued on the basis of biological sex. However, the individual may present themselves as the opposite sex in their driver's license photo. The Attorney General also concluded that the new law does not apply to housing decisions by state correctional facilities since those decisions are not mandated by state rules or regulations.

Monday, June 26, 2023

3 Courts Rule on Claims for Religious Exemptions from Covid Vaccine Mandates

Last week, federal district courts in three states handed down decisions in cases in which a former employee was suing his or her employer for refusing to provide them with a religious exemption from the employer's Covid vaccine mandate.

In Crocker v. Austin, (WD LA, June 22, 2023) a Louisiana federal district court dismissed as moot a suit for injunctive relief brought by seven military service members who faced involuntary separation from the Air Force when they filed suit. However, in January 2023 the military rescinded the vaccine mandate and updated personnel records to remove any adverse actions associated with the denial of requested exemptions. Any remaining suit for damages falls under the Tucker Act and must be brought in the Court of Federal Claims.

In Leek v. Lehigh Valley Health Network, (ED PA, June 23, 2023), a Pennsylvania federal district court refused to dismiss a Title VII religious discrimination claim filed by a nurse who was denied religious exemptions from a hospital's requirement to receive Covid and influenza vaccines. The hospital claimed that the nurse's objections were not religious in nature. The court held that the nurse's belief that chemical injections may make her body impure in the eyes of the Lord, and her objections to some vaccines because they were developed using aborted fetal cells, are both religious objections. The fact that some of her other objections were more medical or political did not negate the presence of religious objections.

In Algarin v. NYC Health + Hospitals Corp., (SD NY, June 23, 2023), a New York federal district court dismissed claims by an Internet technology professional at a health care facility that denial of his request for a religious exemption from the state's Covid vaccine mandate violated Title VII and the New York State and City Human Rights Laws. The court disagreed, holding that requiring the employer to violate a state rule would place an undue burden on the employer. The court also rejected plaintiff's 1st Amendment free exercise claim, finding that the vaccine mandate was a neutral law of general applicability.

Sunday, June 25, 2023

High School's Failure to Supervise Student Did Not Violate Parents' Free Exercise Rights

In Doe v. Alpine School District, (D UT, June 21, 2023), a Utah federal district court rejected claims by the parents of a high school student that the school's practice of giving students long periods of unsupervised time during the last week of the school year violated their religious free exercise rights. According to the court:

The Does are members of the Church of Jesus Christ of Latter-day Saints and have raised their son under its doctrines and to follow its practices, one of which prohibits premarital sex. The Does had previously discovered that JD had begun having sex with his girlfriend and had placed restrictions on JD’s activity to prevent him from having premarital sex thereafter, such as requiring him to be accompanied by other persons when he was with his girlfriend.... The Does learned that JD had had sex with his girlfriend in the parking lot next to the school during school hours three times during the final week of school....

The Does’ claim under the Free Exercise Clause fails because they have not alleged that the Alpine School District coerced them to abandon a religious tenet or belief. First, the school district did not coerce JD into acting against his religious beliefs. He freely chose to have premarital sex with his girlfriend, even though this was against the teachings of his religion.

Second, the Alpine School District did not coerce the Does to act contrary to their religious principles. The Does allege that they have a religious duty to encourage JD to abstain from premarital sex. The district did nothing to pressure or force the Does to refrain from passing on those teachings to her son. The Does instead argue that the district’s policies allowed JD a window of opportunity to have sex, thwarting their attempts to prevent him from doing so. In essence, the Does assert that the Alpine School District did not do enough to help them perform their religious obligations. But the Free Exercise Clause does not impose such a duty on government entities....

The court also rejected plaintiffs' 14th Amendment parental rights claim.

Ecclesiastical Abstention Doctrine Bars Court From Interpreting Foundation's Bylaws

In Foundation for the Advancement of Catholic Schools, Inc. v. The Most Reverend Leonard P. Blair, (CT Super, June 15, 2023), a Connecticut trial court held that "the constitutional bar on court jurisdiction over religious matters" required it to dismiss a suit over interpretation of the bylaws of an organization that provides scholarships for students attending Catholic schools in the Archdiocese of Hartford. At issue was whether the Archbishop could appoint Board of Trustee members other than those recommended by the Governance Committee. The court said in part:

Notwithstanding its formal status as a nonstock corporation, the court finds that FACS is a religious organization with ecclesiastical doctrine and practices. While FACS may be akin to a mutual fund in how it accepts contributions, diversifies assets, and distributes money, the mission and character of the organization is wholly marked by "clear and obvious religious characteristics."...

[T]he court cannot neutrally apply principles of corporate bylaw interpretation without intruding upon the archbishop's religious decision-making authority. Instead, the court is being asked to entangle the Superior Court of the State of Connecticut into matters of religious doctrine, religious practices and church polity.

Friday, June 23, 2023

Florida's Ban On Medicaid Payments For Puberty Blockers and Cross-Sex Hormones Is Invalid

In Dekker v. Weida, (ND FL, June 31, 2023), a Florida federal district court held that Florida Statutes §286.31(2) and Florida Administrative Code Rule 59G-1.050(7) which bar the expenditure of state funds, including Medicaid funds, for puberty blockers and cross-sex hormones violate the Equal Protection Clause and the Affordable Care Act's ban on sex discrimination, as well as provisions of the Medicaid Act. The statute and rule also ban Medicaid coverage for gender-affirming surgery, but none of the plaintiffs had standing to challenge these provisions. The court said in part:

The record establishes that for some minors, including Susan Doe and K.F., a treatment regimen of mental-health therapy followed by GnRH agonists and eventually by cross-sex hormones is the best available treatment. They and their parents, in consultation with their doctors and multidisciplinary teams, have rationally chosen this treatment. The State of Florida’s decision to ban payment for GnRH agonists and cross-sex hormones for transgender individuals is not rationally related to a legitimate state interest.

Dissuading a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest. The defendants apparently acknowledge this. But the State’s disapproval of transgender status—of a person’s gender identity when it does not match the person’s natal sex—was a substantial motivating factor in enactment of the challenged rule and statute....

The rule and statute at issue were motivated in substantial part by the plainly illegitimate purposes of disapproving transgender status and discouraging individuals from pursuing their honest gender identities. This was purposeful discrimination against transgenders....

Florida Politics reports on the decision.

Biden, Modi Respond To Questions About Religious Freedom In India

Yesterday, President Biden and Indian Prime Minister Narendra Modi who is making a state visit to the United States held a joint Press Conference (full transcript) at the White House. Reporters raised questions regarding India's treatment of religious minorities. Here is the relevant portion of the questions and answers:

Q So, as you raise these broader issues of human rights and democracy, what is your message to those — including some members of your own party — who believe that your administration is overlooking the targeting of religious minorities and a crackdown on dissent in India?

PRESIDENT BIDEN: Well, look, the Prime Minister and I had a good discussion about democratic values. And ... that’s the nature of our relationship: We’re straightforward with each other, and — and we respect each other.

One of the fundamental reasons that I believe the U.S.-China relationship is not in the space it is with the U.S.- Indian relationship is that there’s an overwhelming respect for each other because we’re both democracies. And it’s a common democratic ... character of both our countries that — and our people — our diversity; our culture; our open, tolerant, robust debate.

And I believe that we believe in the dignity of every citizen. And it is in America’s DNA and, I believe, in India’s DNA that the whole world — the whole world has a stake in our success, both of us, in maintaining our democracies. It makes us appealing partners and enables us to expand democratic institutions across — around the world. And I believe this, and I still believe this.

Q Mr. Prime Minister, India has long prided itself as the world’s largest democracy, but there are many human rights groups who say that your government has discriminated against religious minorities and sought to silence its critics. As you stand here in the East Room of the White House, where so many world leaders have made commitments to protecting democracy, what steps are you and your government willing to take to improve the rights of Muslims and other minorities in your country and to uphold free speech?

PRIME MINISTER MODI: (As interpreted.) I’m actually really surprised that people say so. And so, people don’t say it. Indeed, India is a democracy.

And as President Biden also mentioned, India and America — both countries, democracy is in our DNA. Democracy is our spirit. Democracy runs in our veins. We live democracy. And our ancestors have actually put words to this concept, and that is in the form of our constitution.

Our government has taken the basic principles of democracy. And on that basis, our constitution is made and the entire country runs on that — our constitution and government. We have always proved that democracy can deliver. And when I say deliver, this is regardless of caste, creed, religion, gender. There’s absolutely no space for discrimination.

And when you talk of democracy, if there are no human values and there is no humanity, there are no human rights, then it’s not a democracy.

And that is why, when you say “democracy” and you accept democracy and when we live democracy, then there is absolutely no space for discrimination. And that is why India believes in moving ahead with everybody with trust and with everybody’s efforts.

These are our foundation principles, which are the basis of how we operate, how we live our lives. In India, the benefits that are provided by the government is accessible to all. Whoever deserves those benefits is available to everybody. And that is why, in India’s democratic values, there’s absolutely no discrimination neither on basis of caste, creed, or age, or any kind of geographic location.

Teachers May Move Ahead with Suit Challenging Denial of Exemption from Covid Vaccine Mandate

In Brandon v. Board of Education of the City of St. Louis, (ED MO, June 21, 2023), a Missouri federal district court refused to dismiss Free Exercise and Equal Protection claims, as well as Missouri Human Rights Act and Title VII claims by 41 of the 43 teachers and staff, in a suit challenging the denial of religious exemptions from the school district's Covid vaccine mandate. Discussing plaintiffs' First Amendment claim, the court said in part:

[Eighth Circuit precedent] instructs district courts to apply Jacobson to laws passed and enforced while an emerging public-health emergency is “developing rapidly, poorly understood, and in need of immediate and decisive action,.., but the tiers of scrutiny when “time [was] available for more reasoned and less immediate decision-making by public health officials” and “the immediate public health crisis [had] dissipated,”.... Again, which standard applies depends upon a “factual determination,”..., and the Court must at this point accept Plaintiffs’ well-pleaded factual allegations as true.... Because Plaintiffs have pleaded the existence of a late-2021 policy apparently lacking the urgency that characterized the regulations and executive orders issued early in the pandemic, [precedent] compels the Court—at least for now—to apply the ordinary tiers of scrutiny to the District’s Policy as alleged.

Among the claims dismissed by the court was the claim that refusal to grant the religious exemptions violated a Missouri statute that prohibits discrimination for refusal to participate in abortions.

Thursday, June 22, 2023

Biden Announces Intent to Nominate Charlotte Burrows For Third Term on EEOC

Yesterday, President Biden announced his intent to nominate Charlotte A. Burrows for a third term as a Member of the Equal Employment Opportunity Commission. She has served as Chair of the Commission since 2021. Before her appointment to the EEOC, Burrows served as Associate Deputy Attorney General at the U.S. Department of Justice. Burrows' nomination must be confirmed by the Senate. The EEOC enforces federal employment anti-discrimination laws, including the ban on religious discrimination.

Christian Pre-School Challenges Exclusion from Colorado State Aid Program

Suit was filed this week in a Colorado federal district court challenging requirements that Colorado has imposed on pre-schools in order for them to participate and receive funding in the state's universal pre-school program. The complaint (full text) in Darren Patterson Christian Academy v. Roy, (D CO, filed 6/20/2023), alleges in part:

9.... [T]he Colorado Department of Early Childhood ... is requiring religious preschools like Darren Patterson Christian Academy to forgo their religious character, beliefs, and exercise to participate in UPK.

10. The Department does so through two provisions that prohibit discrimination against any person based on religion, sexual orientation, or gender identity.

11. So even though the school welcomes all families and children, these provisions would force it to hire employees who do not share its faith and to alter internal rules and policies that are based on the school’s religious beliefs about sexuality and gender, including those that relate to restroom usage, pronouns, dress codes, and student housing during school expeditions and field trips....

Plaintiff contends that the requirements violate its rights under the federal Constitiuion's Free Exercise, Free Speech and Equal Protection Clauses. ADF issued a press release announcing the filing of the lawsuit.

2nd Circuit Rejects Challenge to Abortion Clinic Bubble Zone Law

In Vitagliano v. County of Westchester, (2d Cir., June 21, 2023), the U.S. 2nd Circuit Court of Appeals held that plaintiff, who the court describes as "an aspiring pro-life sidewalk counselor who wishes to approach women entering abortion clinics and engage them in peaceful conversation about abortion alternatives," has standing to challenge Westchester County's recently-enacted 8-foot "bubble-zone" law. The court concluded that plaintiff has standing. She had demonstrated a credible threat of enforcement of the law against her. Plaintiff conceded that the bubble-zone law survived constitutional attack under existing Supreme Court precedent. She brought suit hoping to convince the Supreme court to overrule its 2000 decision that upheld a similar law. The 2nd Circuit thus affirmed the district court's dismissal of the challenge to Westchester County's ordinance, opening the way for appellant to seek Supreme Court review. Becket has background on the case.

Wednesday, June 21, 2023

Colorado Window to Bring Expired Child Sex Abuse Claims Is Unconstitutional

In Aurora Public Schools v. A.S., (CO Sup.Ct., June 20, 2023), the Colorado Supreme Court held that the Child Sexual Abuse Accountability Act

is unconstitutionally retrospective [under Art. II, Sec. 11 of the Colorado Constitution] to the extent that it permits a victim to bring a claim for sexual misconduct based on conduct that predates the Act and for which previously available causes of action were time-barred.

The Act created a 3-year window during which victims could bring claims for any child sexual abuse that occurred between 1960 and 2022. In the case, plaintiffs sued a former high school coach and his school district for sexual abuse that occurred between 2001 and 2005. The court said in part:

The legislature was careful with S.B. 21-088 not to directly revive time-barred claims, which would plainly impair vested rights.... Instead, it created a three-year window to bring a new cause of action to accomplish the same ends. But the retrospectivity clause prohibits the legislature from “accomplish[ing] that indirectly, which it could not do directly.”...

... Our holding does not affect claims brought under the CSAAA for which the previously applicable statute of limitations had not run as of January 1, 2022.

AP reports on the decision.

RFRA Requires Title VII Exemption for Business Operating on Christian Gender Beliefs

In Braidwood Management, Inc. v. EEOC, (5th Cir., June 20, 2023), the U.S. 5th Circuit Court of Appeals held that RFRA requires an exemption from the sex discrimination provisions of Title VII for a company that operates three related health and wellness businesses on the basis of Christian beliefs regarding sexual orientation and gender identity. The court said in part:

RFRA requires that Braidwood ... be exempted from Title VII because compliance with Title VII post-Bostock would substantially burden its ability to operate per its religious beliefs about homosexual and transgender conduct. Moreover, the EEOC wholly fails to carry its burden to show that it has a compelling interest in refusing Braidwood an exemption, even post-Bostock....

Although the Supreme Court may some day determine that preventing commercial businesses from discriminating on factors specific to sexual orientation or gender identity is such a compelling government interest that it overrides religious liberty in all cases, it has never so far held that....

Under RFRA, the government cannot rely on generalized interests but, instead, must demonstrate a compelling interest in applying its challenged rule to “the particular claimant whose sincere exercise of religion is being substantially burdened.”...

[T]he EEOC fails to carry its burden. It does not show a compelling interest in denying Braidwood, individually, an exemption. The agency does not even attempt to argue the point outside of gesturing to a generalized interest in prohibiting all forms of sex discrimination in every potential case. Moreover, even if we accepted the EEOC’s formulation of its compelling interest, refusing to exempt Braidwood, and forcing it to hire and endorse the views of employees with opposing religious and moral views is not the least restrictive means of promoting that interest.

Reuters reports on the decision.

Court Enjoins Arkansas Ban on Gender-Affirming Medical Care

In Brandt v. Rutledge, (ED AR, June 20, 2023), an Arkansas federal district court in an 80-page opinion permanently enjoined the state from enforcing Act 626, the state's ban on gender-affirming medical care for minors. The court, finding that the Act violates the14th Amendment's equal protection and due process clauses, as well as the 1st Amendment's free speech protections, said in part:

Act 626 prohibits a physician or other healthcare professional from providing “gender transition procedures” to any individual under eighteen years of age and from referring any individual under eighteen years of age to any healthcare professional for “gender transition procedures.”...

The State claims that by banning gender-affirming care the Act advances the State’s important governmental interest of protecting children from experimental medical treatment and safeguarding medical ethics. Throughout this litigation, the State has attempted to meet their heavy burden by offering the following assertions in support of banning gender-affirming medical care for adolescents: (i) that there is a lack of evidence of efficacy of the banned care; (ii) that the banned treatment has risks and side effects; (iii) that many patients will desist in their gender incongruence; (iv) that some patients will later come to regret having received irreversible treatments; and (v) that treatment is being provided without appropriate evaluation and informed consent. The evidence presented at trial does not support these assertions....

Even if the Court found that Act 626 passed constitutional muster under the Equal Protection Clause, it fails under due process analysis....

As the Court has previously found, the Parent Plaintiffs have a fundamental right to seek medical care for their children and, in conjunction with their adolescent child’s consent and their doctor’s recommendation, make a judgment that medical care is necessary. “[T]the Fourteenth Amendment ‘forbids the government to infringe . . . ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.’”...

Act 626 is a content and viewpoint-based regulation of speech because it restricts healthcare professionals from making referrals for “gender transition procedures” only, not for other purposes. As a content and viewpoint-based regulation, it is “presumptively unconstitutional” and is subject to strict scrutiny...

Arkansas Attorney General Tim Griffen in a statement said that he plans to appeal the decision to the 8th Circuit. The Hill reports on the court's decision.

Supreme Court Denies Review in Christian College's Challenge to Fair Housing Act Enforcement

The U.S. Supreme Court yesterday denied review in The School of the Ozarks v. Biden, (Docket No. 22-816, certiorari denied, 6/20/2023). (Order List). In the case, the U.S. 8th Circuit Court of Appeals held in a 2-1 decision that a Christian college lacks standing to challenge a memorandum issued by an acting assistant secretary of the U.S. Department of Housing and Urban Development. The memorandum directs the HUD office that enforces the Fair Housing Act to investigate all discrimination complaints, including discrimination on the basis of sexual orientation or gender identity. The school's religiously-inspired Code of Conduct specifies that biological sex determines a person's gender. The school maintains single-sex residence halls and does not permit transgender individuals to live in residence halls that do not match their biological sex. (See prior posting.)

Tuesday, June 20, 2023

Supreme Court GVR's South Carolina Planned Parenthood Defunding Case

In Kerr v. Planned Parenthood, (Sup. Ct., Docket No. 21-1431, June 20, 2023) (Order List), the Supreme Court remanded for further consideration South Carolina's appeal of a 4th Circuit decision that barred South Carolina from terminating Medicaid funding to Planned Parenthood. The Court's action today granted certiorari, vacated the judgment below and remanded the case in light of the Court's June 8, decision in Health and Hospital Corporation of Marion Cty. v. Talevski. That case held that 42 USC §1983 may be used to enforce rights created by statutes enacted under Congress' spending power, a holding consistent with the 4th Circuit's decision below in Kerr. Here is the SCOTUSblog's case page for the Kerr case, with links to all the pleadings and briefs in the case. Reuters reports on today's Supreme Court ruling.

Army Appeals Court: Poisoning Through Vodou Not Protected by Free Exercise Clause or RFRA

In United States v. Lindor, (ACCA, June 14, 2023), the Army Court of Criminal Appeals rejected appellant's claim that his murder sentence violated his free exercise rights under the 1st Amendment and RFRA. The case involves a Staff Sergeant who, after multiple attempts, succeeded in murdering his wife through the use of rituals and poisons recommended by a Vodou practitioner in Haiti. The court said in part:

[A]ppellant's actions to summon Vodou rituals ... were consistent with his First Amendment right to freely exercise his religious beliefs.... [T]he record contains no indication that they called for any illegal activity or result.... The stipulation's derogatory references to these Vodou rituals—after all, they were categorized as "aggravation" evidence—violated the First Amendment's free exercise clause. The government, consistent with the Constitution's guarantee of free exercise, "cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices."...

However, our analysis does not end there,.... [Appellant] waived his objection to evidence of these particular spells in two ways.... First, the military judge directly advised appellant and his counsel that, if he admitted it, he would consider the stipulation of fact to decide whether appellant was guilty, and, if so, an appropriate sentence; appellant and his counsel agreed. Second, the military judge specifically asked appellant's counsel whether he had any objections to the stipulation; counsel responded, "No, Your Honor."...

Turning to appellant's violence toward RL, we view this as substantially different from the rituals about AD and government officials. We have searched for, but cannot find, any authority to support appellant's tacit argument that the First Amendment's "free exercise" clause can broadly shield one from government action to describe, prosecute, and punish conduct that unlawfully endangers another person's life...

Put plainly, we decline to characterize appellant's violent misconduct toward RL as the free exercise of religious belief.... [A]ctivities that harm others are not protected by the free exercise clause. To characterize appellant's chosen techniques to plan, express, and actuate his intent to murder RL as the free exercise of his religious beliefs would expropriate the free exercise clause of any principled, reasonable meaning. The United States Constitution's framers and the various ratifying conventions plainly and deliberately did not contemplate that one could seek protection in the clause for an act that violated another's right to be free from malicious violence.

FBI Charges Michigan Man with Plotting Mass Casualty Attack at Synagogue

Last week, the FBI filed a Criminal Complaint charging a 19-year-old Michigan man with taking steps to plan a mass casualty suicide attack on a synagogue in Lansing, Michigan. The Criminal Complaint (full text) in United States v. Seann Patrick Pietila, (WD MI, filed 6/16/2023) sets out extensive Instagram postings and alleges in part:

[Pietla] communicated Neo-Nazi style ideology, antisemitism, suicidal ideologies, glorification of past mass shooters (that advocate similar ideology), and a desire and his intent to mimic past mass shooters/mass casualty incidents.

... [He] specifically references admiration for Brenton Tarrant.... Tarrant committed acts of mass murder in New Zealand. On March 15, 2019, Tarrant committed two consecutive mass shootings on Mosques located in New Zealand. Tarrant killed 51 people and injured 40 more. Tarrant live-streamed his attack via Facebook Live.

The Criminal Complaint alleges violation of 18 U.S.C. § 875(c) which bans sending in interstate commerce any communication containing a threat to injure another person, reports:

During the execution of the search warrant, investigators located the following items of evidence: .40 caliber pistol ammunition, .22 caliber ammunition, 12 gauge shotgun ammunition, a 12-gauge shotgun, a .22 caliber rifle, a Sig Sauer .40 caliber pistol (serial # 24B049058), .223 rifle magazines, an Apple iPhone 11, various knives and bladed instruments, scopes and firearms accessories, a camouflage tactical vest, a black tactical vest, black skull masks, a red and white Nazi flag, a ghillie suit, gas masks, and military sniper/survival manuals.

Law & Crime reports on the charges.

Monday, June 19, 2023

Sunday, June 18, 2023

California Law Does Not Interfere With Pre-Schools' Religious Curriculum

In Foothills Christian Church v. Johnson, (SD CA, June 15, 2023), a California federal district court dismissed a free exercise challenge by Christian pre-schools to California's child care licensing requirement. It held that California's Child Day Care Facilities Act does not prevent the schools from offering a program that includes compulsory participation in religious activities and events. While the Act requires that schools make attendance at religious activities voluntary in the discretion of the child's parents or guardian, it also allows schools to refuse to admit children whose parents or guardians are unwilling to agree that their children will attend religious instruction and activities. The court thus held that since plaintiffs inaccurately assessed the Act's requirements, they lack standing to pursue their free exercise claims.