Suit Challenges Oklahoma's Approval of Catholic Charter School

Suit was filed yesterday in an Oklahoma state trial court challenging the decision of the state's Virtual Charter School Board to approve a Catholic-sponsored charter school that will be funded by the state. The 70-page complaint (full text) in OKPLAC, Inc. v. Statewide Virtual Charter School Board, (OK Dist. Ct., filed 7/31/2023) alleges that the school's application indicated that the school's operation would violate numerous provisions of the Oklahoma Constitution, the Oklahoma Charter Schools Act, and regulations of the Virtual Charter School Board. The complaint alleges in part:

St. Isidore submitted notarized statements that it would comply with antidiscrimination and other legal requirements only “to the extent required by law, including . . . religious exemptions . . . with priority given to the Catholic Church’s understanding of itself and its rights and obligations pursuant to the Code of Canon Law and the Catechism of the Catholic Church.”...

Because St. Isidore’s program requires students to submit to instruction in particular religious tenets, it is not actually open to children of all faiths and is instead discriminatory based on religion....

St. Isidore also will discriminate among prospective or enrolled students based on sexual orientation, gender identity, pregnancy outside of marriage, and sexual activity outside of marriage....

The Charter Schools Act requires charter schools to be “nonsectarian in [their] programs . . . and all other operations.”...

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

7th Circuit Vacates Prior Decision On Teacher's Refusal To Call Transgender Students By Registered Name

As previously reported, earlier this year in Kluge v. Brownsburg Community School Corp., the U.S. 7th Circuit Court of Appeals in a 2-1 decision upheld a school's dismissal of a teacher who refused on religious grounds to comply with the school policy of calling transgender students by their names registered in the school's official database. Now, in an Order (full text) issued on July 28, the 7th Circuit has vacated its decision and remanded the case to the district court for reconsideration in light of the U.S. Supreme Court's recent decision in Groff v. DeJoy. ADF issued a press release announcing the court's new Order.

6th Circuit Hears Oral Arguments In Wedding Photographer Case

On Friday, the U.S 6th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Chelsey Nelson Photography LLC v Louisville Jefferson Co KY. In the case, a Kentucky federal district court held that Louisville's public accommodation ordinance violates the free speech rights of a Christian wedding photographer who has moral and religious objections to same-sex marriages. (See prior posting.) Louisville Public Media reports on the oral arguments.

New Ukrainian Law Moves Christmas To EDec. 25, Rejecting Russian Orthodox Date

 AP reports that last Friday. Ukrainian President Volodymyr Zelenskyy signed a law that moves the date on which Ukraine will celebrate Christmas from January 7 (the date observed by the Russian Orthodox Church) to December 25. According to AP:

The explanatory note attached to the law said its goal is to “abandon the Russian heritage,” including that of “imposing the celebration of Christmas” on Jan. 7. It cited Ukrainians’ “relentless, successful struggle for their identity” and “the desire of all Ukrainians to live their lives with their own traditions, holidays,”....

The law also moves the dates for two other Ukrainian patriotic holidays.

Recent Articles of Interest

From SSRN:

• Paolo Davide Farah, Law, Society, and Religion: Islam and the West, (in Federico Lorenzo Ramaioli, Juridical Perspectives between Islam and the West – A Tale of Two Worlds, Global Issue Series, Palgrave MacMillan (United Kingdom), Forthcoming 2023).
• Michale Quinlan, 'Yes My Lord' Examining the Impact of Religion on the Legal Profession, (Crime, Criminal Justice and Religion A Critical Appraisal (Philip Birch, Conor Murray and Andrew McInnes (ed), Routledge, 2023).
• Deborah Machalow, Religious Diversity and A Woman’s Right to Choose: The Religious Right’s Mistakenly Assumed Monopoly on Belief and Religious Support for Abortion, (Rutgers Journal of Law and Religion, Vol. 22, No. 3, 2022).
• Michael J. Broyde, AI and Jewish Law: Seeing How ChatGPT 4.0 Looks at a Novel Issue, (B.D.D.- Bekhol Derakhekha Daehu of Bar Ilan University, forthcoming).
• Christopher C. Lund, Answers to Fulton's Questions, (Iowa Law Review, Vol. 108, p. 2075, 2023 (symposium)).
• Deborah Machalow, Screwed But Not Even Kissed: The Parade of Reproductive and Economic Horribles Likely to Follow Dobbs, (Journal of Gender, Race and Justice, Vol. 26, No. 1, 2023).
• Mehdi J. Hakimi, The Afghan State and the Hazara Genocide, (Harvard Human Rights Journal, Vol. 37 (Forthcoming)).
• Paolo Davide Farah, Law, Society, and Religion: Islam and the West, (in Federico Lorenzo Ramaioli, Juridical Perspectives between Islam and the West – A Tale of Two Worlds, Global Issue Series, Palgrave MacMillan (United Kingdom), Forthcoming 2023).

From SmartCILP:

• Mark Strasser, On Espinoza, Schools, and the Religion Clauses, [Abstract], 14 Drexel Law Review 543-590 (2022).

Suit Challenges Ohio Reproductive Freedom Amendment Ballot Issue

 A legal action was filed Friday in the Ohio Supreme Court seeking to disqualify from the November ballot a proposed Reproductive Freedom amendment to the state constitution which has been certified for inclusion on the ballot by the state Secretary of State. The complaint (full text) in Giroux v. Committee Representing Petitioners, (OH Sup. Ct., filed 7/28/2023) contends that the initiative petitions failed to comply with the legal requirement to include the text of existing statutes that would be implicitly repealed by the amendment if it is adopted. Cincinnati Enquirer reports on the lawsuit. [Thanks to Thomas Rutledge for the lead.]

Church Autonomy Doctrine Does Not Shield Criminal Conduct

 In Hochstetler v. State of Indiana, (IN App., July 27, 2023), an Indiana state appellate court held that criminal conduct is not shielded by the church autonomy doctrine. In the case, three Old Order Amish bishops were convicted of misdemeanor intimidation for threatening to place an Amish wife under a bann if she did not remove herself from a protective order she had obtained to protect her and her children from her husband.

Some Claimed Exemptions From Vaccine Mandate Were Not Religious In Nature

In Ellison v. Inova Health Care Services, three hospital employees sued because their claims for religious exemptions from the Covid vaccine mandate were rejected.  They asserted that their employer violated Title VII by failing to accommodate their religious beliefs. The court found that only the aborted fetal cell objections of one defendant were adequately linked in the pleadings to plaintiff's religious beliefs.  Other objections to the vaccine were not religious in nature.  The court said in part: 

In Ellison’s request for exception, he claims that, as a Christian, he has a right to refuse the vaccine. Specifically, he claims that the Bible requires Christians to treat their bodies as “temple[s] of the Holy Spirit,” meaning that he is “compel[led]” to care for his mind and body.... And because, in his view, taking the COVID-19 vaccine would “introduce to [his] body a medication that could induce harm,” he claims that complying with the hospital’s policy would be “antithetical to [his] desire to honor God.”...

... [T]he Court finds that, though couched in religious terms, Ellison refused the vaccines based on concerns of vaccine safety.

Two of the plaintiffs claimed that they pray over their health care decisions and follow God's answers.  The court rejected this, calling it an unverifiable claim of a blanket privilege that undermines our system of ordered liberty.

Conscience Clause in Health Insurance Mandate Does Not Violate Church's Free Exercise

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, July 25, 2023), a Washington federal district court dismissed a free exercise challenge by a church to a Washington law requiring all health insurance plans that provide maternity coverage to also provide substantially equivalent abortion coverage. Under the law, employers with religious or moral objections to specific services do not have to purchase coverage for those services, but enrollees must still be able to access coverage for the services. The court said in part:

None of the State’s arguments seem to fully address the crux of Cedar Park’s facilitation complaint: that its employees would not have access to covered abortion services absent Cedar Park’s post-SB 6219 plan. This fact is undisputed and undoubtedly true. Because of SB 6219, Cedar Park’s employees gained coverage for abortion services under their employer-sponsored health insurance plan that they would not otherwise have. Even if the “facilitation” is somewhat minimal, SB 6219 requires Cedar Park to facilitate access to covered abortion services contrary to Cedar Park’s religious beliefs....

Because the Court concludes that SB 6219 is neutral and generally applicable, the law is valid if it is rationally related to a legitimate governmental purpose....

The Washington legislature identified multiple legitimate governmental purposes for enacting SB 6219, including promoting gender equity, promoting economic success of women, improving women’s health, and protecting privacy.

Hindu Profs May Move Ahead with Some Challenges To "Caste" In Anti-Discrimination Policy

In Kumar v. Koester, (CD CA, July 25, 2023), a California federal district court dismissed for lack of standing plaintiffs' free exercise and equal protection challenges to California State University's inclusion of the term "caste" in its Interim Non-discrimination Policy. However, the court concluded that plaintiffs-- South-Asian, Hindu CSU professors-- may move ahead with their Establishment Clause and vagueness claims. 

Plaintiffs object to the University's policy that treats "caste" as a social and religious hierarchy created by the Hindu religion. They contend that caste is no part of Hinduism and that its inclusion in the University policy promotes racial and religious stereotypes and subjects plaintiffs' Hindu religious beliefs to public ridicule. The court dismissed plaintiffs' equal protection challenges because "abstract stigmatic injuries" are not sufficient to create standing.  Insofar as plaintiffs argue that the Policy provides insufficient protection to non-Asian victims of caste discrimination, plaintiffs allege no injury to themselves. As to plaintiffs' free exercise challenges, the court said in part:

Plaintiffs emphatically denounce the caste system and reject the notion that it is part of their religion. Thus, the Policy does not threaten any of Plaintiffs' rights to practice their religion.

As to plaintiffs' Establishment Clause claims, the court said in part:

To evaluate the merits of an Establishment Clause claim, a court must reference historical practices and understandings.... A government practice that unevenly impacts religion may nevertheless be constitutional if it is supported by history and tradition.... Defendant contends that inclusion of the term "caste" is supported by a long history and tradition of disallowing racial discrimination in schools. While Defendant is correct that there is a long history of preventing racial discrimination in education, Defendant has not adequately demonstrated that there is a history or tradition of incorporating words with religious connotations to curb racial discrimination. Therefore, Defendant has failed to demonstrate that implicating Hinduism through the Policy's inclusion of the term "caste" is supported by history and tradition.

[Thanks to Glenn Katon for the lead.]

Vermont Pregnancy Counseling Centers Sue Over New Restrictions

Suit was filed yesterday in a Vermont federal district court attacking Vermont's recently-enacted SB 37 which, among other things, imposes new regulation on anti-abortion pregnancy counseling centers. The law prohibits advertising of services that is "untrue or clearly designed to mislead the public about the nature of the services provided." It also provides that licensed health care professionals who provide services at such centers are responsible for ensuring that services, information and counseling at the center complies with these requirements. The complaint (full text) in National Institute of Family and Life Advocates v. Clark, (D VT, filed 7/25/2023) contends that these provisions are unconstitutionally vague and also violate the free speech rights of clinics, alleging in part:

111. The Advertising Prohibition provides no guidance as to how it should be applied to advertisements including medical information on which there is no medical consensus.

112. The Advertising Prohibition is also unclear as to whether it requires a disclosure in all advertisements that the pregnancy center does not provide abortions or "emergency contraception."

113. Requiring such a disclosure would compel the centers' speech.

114. The Advertising Prohibition has chilled Plaintiffs' speech.

115. For example, Aspire's medical director created a video about abortion pill reversal that Aspire would like to post on its website....

168. Because Plaintiffs do not charge for their services, the Provider Restriction, 9 V.S.A. § 2493(b), regulates Plaintiffs' non-commercial speech.

169. The Provider Restriction is a viewpoint- and content-based regulation of pure speech because it directly regulates speech about health-care-related" information" and "counseling" by "limited-services pregnancy centers," even when no medical treatment or procedure is involved. 9 V.S.A. § 2493(b).

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

Guam Legislature Overrides Veto of Bill Authorizing Government-Funded Religious Charter Schools

On July 24, the Guam legislature by a vote of 13-0 overrode Governor Lourdes Leon Guerrero's July 12 veto of Bill No.62-37.  (Full text of veto message). The bill allows both private religious schools and private non-sectarian schools to petition to convert to government-funded Academy Charter Schools. The legislation authorizes up to 7 charter schools to operate at any one time. (Full text of bill and veto override vote). The legislature's introductory language in the bill reads in part:

I Liheslaturan Guåhan intends to remove any discrimination or distinction between private sectarian or non-sectarian applicants for converting existing schools or for new charter schools. I Liheslaturan Guåhan recognizes the enormous contribution and history of private sectarian education on Guam and intends for all applicants to be considered on their records and applications to convert to an Academy Charter School.

According to the Guam Daily Post:

Gov. Lou Leon Guerrero in a veto message this month said that Bill 62 violated the First Amendment and the doctrine of separation of church and state, as well as the Organic Act of Guam. She stated she couldn’t authorize the spending of taxpayer money on a religious school, which would then be regulated by the government.

But Attorney General Doug Moylan differed in a legal opinion issued to lawmakers. Several faith-based organizations receive money from the government of Guam already, he noted.

Court Upholds Procedure for Obtaining Immigrant Religious Worker Classification

In Society of the Divine Word v. U.S. Citizenship & Immigration Services, (ND IL, July 20, 2023), an Illinois federal district court rejected RFRA, free exercise, Establishment Clause and equal protection challenges brought by more than a dozen religious institutions to the way in which federal law treats foreign-born ministers and international religious workers who the institutions seek to employ.  Current federal law does not allow them to file their application for a "green card" until after their employer has obtained a special immigrant religious worker classification for them. This is different than the rules for employees of secular organizations who may file for a green card concurrently with their employer's filing. The court said in part:

Plaintiffs counter that § 245.2(a)(2)(i)(B) violates the RFRA because their decisions regarding “when and where religious workers may be put into religious service” are protected by the First Amendment. They argue that § 245.2(a)(2)(i)(B) places “extreme and sometimes insurmountable burdens” on their ability to staff their religious missions. These burdens include processing delays, resource expenditure to follow up on and seek expedited adjudication of petitions, and lapses in employment authorization....

The court agrees with plaintiffs that § 245.2(a)(2)(i)(B) is still capable of substantially burdening their religious exercise even if they can use other employment-based immigration categories to hire their foreign-born religious workers. That being said, the court disagrees with plaintiffs that they have demonstrated that these alleged burdens (time, planning, and cost) have a substantial impact on their ability to determine when and where to hire and fire the religious ministers of their choice. Instead, § 245.2(a)(2)(i)(B) requires employers to plan the timing of employment decisions based on immigration status, and potentially limits the pool of qualified applicants that plaintiffs can choose from if they fail to plan accordingly. Limiting the pool of available employees based on immigration status is not the same as interfering with a religious organization’s hiring decision by pressuring them to hire or fire a particular employee, as in Hosanna Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012)...

Plaintiffs’ next argument is that § 245.2(a)(2)(i)(B) violates the Equal Protection and Due Process Clauses because it discriminates against them on the basis of religion....

... [T]his court concludes that § 245.2(a)(2)(i)(B) is not based on religion; it is based on the demonstrated risk of fraud in the special immigrant religious worker program, which is not subject to other requirements that might avoid fraud in other employment-based categories. 

Recent Articles of Interest

From SSRN:

• Mark Edward Blankenship Jr., 'Apprenticeship' as IP Metaphor: A Modern & Innovative Natural Law Approach in Intellectual Property Law, (Northern Kentucky Law Review, Vol. 50, No. 1, 2023).
• Elizabeth Sepper & James David Nelson, Religion Law and Political Economy, (Iowa Law Review, Vol. 108, No. 5, 2023).
• Nathan B. Oman, Travel Bans: Mormons and Muslims, (William & Mary Law School Research Paper No. 09-472 (2023).
• Leonardo Madio & Francesco Principe, Who Supports Liberal Policies? A Tale of Two Referendums in Italy, (July 19, 2023).
• Mritunjay Kumar, Chanchal Kumar Singh & Aastha Naresh Kohli, Breaking Down the Code, (India Legal Magazine, 2023).
• Keith Wanyangu, Kenya's Conversation on the Right to Sexual Orientation Is Just Cultural, (July 9, 2023).
• Mahbobullah Hazim & Abdulaziz Nazari, The Negative Consequences of Gender Mixing and Its Rulings in Islamic Shariah, (Integrated Journal for Research in Arts and Humanities, 3(4), July 2023, 6–19).

From SSRN (Abortion rights):

• Joseph W. Singer, Conflict of Abortion Laws, (Northeastern University Law Review, Vol. 16, No. 2 (2024, Forthcoming).
• Paul J. Zwier, US State Abortion Law in an International Context: Distinguishing Religion and Politics, (July 14, 2023).
• Gemma Donofrio, Bruen, Dobbs, Rahimi, and Domestic Violence: Fewer Abortions, More Guns, and the Effects of Both on Survivors of Intimate Partner Violence, (July 17, 2023).

From SmartCILP:

• Stephen M. Feldman, The Roberts Court's Transformative Religious Freedom Cases: The Doctrine and the Politics of Grievance, [Abstract], 28 Cardozo Journal of Equal Rights & Social Justice 507-558 (2022).
• B. Jessie Hill, Due Process, Delegation, and Private Veto Power, 108 Iowa Law Review 1199-1246 (2023).

UN Human Rights Council Adopts Resolution Condemning Burning of Qur'an

The United Nations Press Centre reports that on July 14, the United Nations Human Rights Council

concluded its fifty-third regular session after adopting 30 resolutions and holding an urgent debate on the alarming rise in premeditated and public acts of religious hatred as manifested by recurrent desecration of the Holy Quran in some European and other countries.

The Council adopted Resolution A/HRC/53/L.23, Countering Religious Hatred Constituting Incitement to Discrimination, Hostility or Violence (full text), which reads in part:

Affirming that burning the Holy Qur’an or any other holy book is offensive, disrespectful and a clear act of provocation, constituting incitement to discrimination, hostility or violence and a violation of international human rights law, ...

Condemning any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence, whether it involves the use of print, audiovisual or electronic media or any other means...

1. Condemns and strongly rejects the recent public and premeditated acts of desecration of the Holy Qur’an, and underscores the need for holding the perpetrators of these acts of religious hatred to account in line with obligations of States arising from international human rights law....

ADF-UK issued a press release criticizing the Council's Resolution as an anti-blasphemy resolution that infringes free expression rights.

Missouri Supreme Court Orders Steps to Allow Reproductive Rights Initiative Petitions to Be Circulated

In State of Missouri ex rel. Dr. Anna Fitz-James v. Bailey, (MO Sup. Ct., July 20, 2023), the Missouri Supreme Court affirmed a trial court's issuance of a writ of mandamus requiring the state Attorney General to approve the State Auditor's fiscal note summaries to eleven Reproductive Rights initiative petitions. That approval is necessary so that the Secretary of State can certify the ballot language and proponents can begin to circulate the petitions for signatures. (Full text of petitions [scroll to No. 2024-77 through 2024-87]). AP reports on the case. State Attorney General Andrew Bailey-- a gubernatorial appointee in Missouri-- contended that the Auditor's conclusion that the proposed constitutional amendments would have no fiscal impact were inaccurate.  Bailey, an abortion opponent, contended that. if approved by voters, the state could lose $12.5 billion in Medicaid funds and $51 billion in future tax revenues because of fewer births. This earlier report by the Missouri Independent has additional background.

 In its opinion, the Missouri Supreme Court said in part:

The Attorney General’s narrow authority to approve the “legal content and form” of the fiscal note summaries cannot be used as a means of usurping the Auditor’s broader authority to assess the fiscal impact of the proposals and report that impact in a fiscal note and fiscal note summary....

The Attorney General, nevertheless, characterizes his claim as challenging the “legal content and form” of the fiscal notes and their summaries because he contends they use language that is argumentative or likely to prejudice readers in favor of the proposed measure.... [H]e claims the content of the notes is likely to prejudice voters in favor of the proposals by underestimating the fiscal impact. And, because he believes the fiscal notes understate the costs to state and local governments, the Attorney General claims the summaries inevitably do so as well. The Attorney General has no authority under section 116.175 to refuse to approve fiscal note summaries on such grounds....

For more than 40 years, this Court has noted “that procedures designed to effectuate [the rights of initiative and referendum] should be liberally construed to avail voters with every opportunity to exercise these rights” and that “[t]he ability of voters to get before their fellow voters issues they deem significant should not be thwarted in preference for technical formalities.”... If the Attorney General had complied with his duty ..., the Secretary would have certified the official ballot titles for Fitz-James’s initiative petitions nearly 100 days ago.

Court Rejects Muslim Americans' Challenge to Their Treatment at U.S. Borders

In Kariye v. Mayorkas, (CD CA, July 19, 2023), a California federal district court dismissed claims by three Muslim plaintiffs that their rights have been violated by ongoing religious questioning of Muslim Americans at ports of entry. The court rejected plaintiffs' Establishment Clause challenge, saying in part:

In light of the case law holding that the government has plenary authority at the border and that maintaining border security is a compelling government interest, the court finds that "reference to historical practices and understandings" weighs against finding an Establishment Clause violation based on religious questioning at the border.... Plaintiffs' allegations to the contrary—that American history and tradition protect religious belief—do not sufficiently address historical practices and understandings at the border.

Rejecting plaintiffs' Free Exercise claim, the court said in part:

[T]he ongoing harms alleged by Plaintiffs here—their modifications to religious practices during international travel— ... can ... be categorized as subjective chilling effects insufficient to constitute a substantial burden under the Free Exercise Clause....

... Plaintiffs have not plausibly alleged they were deprived of a government benefit or coerced to act contrary to their religious beliefs...

... Plaintiffs' allegations support the conclusion that the questioning alleged in this case would be a narrowly tailored means of achieving the compelling government interest of maintaining border security.

The court also rejected plaintiffs' freedom of association, retaliation, equal protection and RFRA claims.

6th Circuit Hears Oral Arguments in RLUIPA Land Use Dispute

The U.S. 6th Circuit Court of Appeals yesterday (July 19) heard oral arguments (audio of full oral arguments) in a RLUIPA land use case, Catholic Healthcare International, Inc. v Genoa Charter Township, Michigan. The dispute is summarized by a Michigan federal district court in one of its opinions:

CHI acquired title to a parcel of undeveloped property... and requested Township approval to construct a grotto/prayer area with associated parking and drive access on the Property.... In response, the Township informed a CHI representative that the proposed construction would be considered a special land use requiring special land use and site plan approval.... Despite this instruction from the Township, CHI erected the desired religiously symbolic structures: a Station of the Cross, similar in size and appearance to a birdhouse, and a shrine consisting of an image within a brick wall, referred to as a “grotto,” on the Property without approval or permits from the Township....

The complex history of the case is outlined on the website of the American Freedom Law Center. Yesterday's oral arguments, which focused in part on the issue of ripeness, are discussed by Courthouse News Service.

Biden Appoints New Member of USCIRF

Last week, President Biden announced his appointment of Susie Gelman as a Commissioner on the U.S Commission on International Religious Freedom. From 2016-2023, Gelman served as Board Chair of Israel Policy Forum. She previously served, among other positions, as President of the Jewish Federation of Greater Washington. JNS reports on the appointment.

Louisiana Legislature Overrides Veto of Gender Transition Ban for Minors

Yesterday the Louisiana legislature overrode Governor John Bel Edwards' veto of HB648, the Stop Harming Our Kids Act (full text). The law prohibits medical professionals from providing puberty blockers, hormonal treatments or surgery to treat gender dysphoria in minors. AP reports on the legislative override.