Catholic Schools Sue Over Rules for Inclusion in Colorado's Universal Preschool Funding

Suit was filed this week in a Colorado federal district court by the Catholic Archdiocese of Denver and two Catholic schools challenging the restrictions imposed on participation in Colorado's universal preschool funding program. The complaint (full text) in St. Mary Catholic Parish in Littleton v. Roy, (D CO, filed 8/16/2023) alleges that plaintiffs' free exercise and free speech rights were infringed by conditions that did not allow giving preference to Catholic families. Rules did allow preference for members of the church's congregation, but not for a broader religious preference. The complaint also alleged that the program's non-discrimination requirements prevent Catholic schools from requiring teachers. administrators and staff to abide by Catholic teachings on marriage, gender and sexuality; from considering whether a student or family has identified as LGBTQ; and from assigning dress requirements, pronoun usage and restroom use on the basis of biological sex. Becket issued a press release announcing the filing of the lawsuit.

Challenge To Maine's Elimination of Religious Exemption To School Vaccination Mandate May Move Ahead

Fox v. Makin, (D ME, Aug. 16, 2023), is a challenge to the Maine legislature's removal of religious exemptions from the state's school vaccination requirements.  Plaintiffs' son was denied a religious exemption by the principal and vice-principal of the son's school at the direction of the state commissioner of education. In the case, a Maine federal district court allowed plaintiffs to move ahead with their claims for injunctive and declaratory relief against the Commissioner, principal and vice-principal. The court held that plaintiffs' free exercise claim was subject to strict scrutiny, finding that the vaccination law lacked general applicability. The court said in part:

Maine continues to permit multiple non-religious exemptions, including a 90-day grace period for non-religious students, a medical exemption, and the IEP sunset provision, all of which arguably undermine its student health and safety interests while restricting religious exemptions that may pose comparable risks....

The Court finds it plausible that section 6355 is not narrowly tailored to advance Maine’s interests.

The court also found that defendants had qualified immunity from damage claims, saying in part:

... [I]t was not clearly established during the period alleged in the Amended Complaint that failing to permit a religious exemption to mandatory school vaccination (while providing others certain non-religious exemptions) violates religious objectors’ constitutional rights. Thus, even if the Court were to assume – without deciding – that section 6355 is unconstitutional, it would be “unfair to subject” the Commissioner and the individual School Defendants “to money damages for picking the losing side of the controversy” by complying with section 6355....

North Carolina Legislature Overrides 3 Vetoes Relating To Transgender Youth and To Parental Rights

On Wednesday, the North Carolina legislature overrode Governor Roy Cooper's vetoes of three bills. House Bill 808 (full text) (veto message) (override vote) prohibits medical professionals from performing gender transition surgery on minors or prescribing puberty blockers or cross-sex hormones to minors. It also creates a cause of action for damages for minors who suffer physical, psychological, emotional, or physiological harm from such procedures or medication and allows minors to bring such actions up until they are 43 years old or 4 years after discovery of the injury and its cause, whichever is later.

House Bill 574 (full text) (veto message) (override vote) bars transgender women from middle school, high school and college athletic teams. The ban applies to all middle and high schools (specifically including church and religious schools) that are members of an organization that administers interscholastic athletic activities. Private church or religious schools that are not members of such an organization must comply with the ban in any game in which it is playing against a team that is a member. At the college level (public or private) the ban applies to all teams that are part of an intercollegiate athletic program. The law also creates a cause of action for any student who is deprived of an athletic opportunity or who is injured or likely to be injured by a violation of the Act. It also creates a cause of action for any student who is subject to retaliation for reporting a violation or any institution or employee harmed for complying with the law.

Senate Bill 49 (full text) (veto message) (override vote), labeled the "Parents' Bill of Rights", has broad provisions giving parents the right to direct the education, upbringing, moral or religious training and health care decisions of their children. It gives parents the right to seek medical or religious exemptions from immunization requirements and to withhold consent to reproductive health and safety education programs. It gives parents the right to access medical records of their children and to ban biometric scans, DNA storage or certain voice and video recordings of their children. It requires (with law enforcement exceptions) parental notification by the state of any suspected criminal offense against their children. It allows parents to review records of materials their children have borrowed from a school library.

The law includes extensive provisions on parental involvement in their children's public school education. Parents must be given information about a broad range of items relating to student progress, including "the course of study, textbooks, and other supplementary instructional materials for his or her child and the policies for inspection and review of those materials." The law requires procedures to notify parents of student physical and mental health, including advance notification of any name or pronoun changes used for the student.

  The law also provides:

Instruction on gender identity, sexual activity, or sexuality shall not be included in the curriculum provided in grades kindergarten through fourth grade, regardless of whether the information is provided by school personnel or third parties.

CNN reports on the new laws.

5th Circuit Says FDA Improperly Reduced Abortion Pill Restrictions, But Prior Supreme Court Order Keeps FDA Rules In Effect During Appeals

In Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration, (5th Cir., Aug. 16, 2023), the U.S. 5th circuit Court of Appeals upheld the portions of a Texas federal district court's orders that stayed actions taken by the FDA in 2016 and 2021 regarding the administration and distribution of the abortion pill mifepristone. The 2016 action increased the gestational age when the drug can be used from 49 to 70 days. It also lightened certain other dosage and prescribing restrictions. In 2021, in connection with the Covid epidemic, the FDA removed the in-person prescribing requirement for mifepristone, allowing it to be sent by mail. The court found that doctors have standing to challenge these actions, among other things citing conscience injuries to objecting doctors.  Challenges to two other FDA actions on mifepristone were rejected on standing and statute of limitations grounds.

The court concluded that plaintiffs are likely to succeed on their Administrative Procedure Act challenges that the FDA's actions were arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. This was the case as to the 2016 action because the FDA did not consider the cumulative effect of the changes it was proposing. They were likely to succeed on their challenge to the 2021 action because the FDA did not adequately study adverse event data.

However, as the court recognized, the U.S. Supreme Court has already ordered a stay of all the district court's orders until federal appeals are completed. Thus the 5th Circuit's action does not reinstate the district court's bans. 

Judge Ho concurred in part and dissented in part, saying tht he would also hold that the initial approval of mifepristone in 2000 should be set aside.

NPR reports on the decision.

Pro-Life Protesters Can Continue Viewpoint Discrimination Suit Over D.C. Defacement Ordinance

 In Frederick Douglas Foundation, Inc. v. District of Columbia, (DC Cir., Aug.15, 2023), the U.S. Court of Appeals for the D.C. Circuit held that a pro-life group can move ahead with its viewpoint discrimination claim against the D.C. government, but not its equal protection claim.  Plaintiffs alleged that D.C. did not enforce its defacement ordinance against "Black Lives Matter" protesters who chalked or painted protest signs on public and private property. However it did enforce the ordinance against pro-life protesters who wished to paint or chalk "Black Pre-Born Lives Matter" on sidewalks or streets. The court said in part:

... [T]o make out a First Amendment selective enforcement claim, the Foundation is not required to allege discriminatory intent. Viewpoint discrimination violates the First Amendment, “regardless of the government’s benign motive … or lack of animus toward the ideas contained in the regulated speech.”... “Innocent motives do not eliminate the danger of censorship.”...

The Foundation, in the alternative, frames its selective enforcement claim in terms of equal protection. To the extent a separate equal protection claim for viewpoint discrimination arises under the Fifth Amendment, the Foundation has failed to allege an essential element—purposeful discrimination. Even taking the facts in the light most favorable to the Foundation, we find it has not put forward plausible evidence of the District’s animus....

The First Amendment prohibits the government from favoring some speakers over others. Access to public fora must be open to everyone and to every message on the same terms. The District may act to prevent the defacement of public property, but it cannot open up its streets and sidewalks to some viewpoints and not others.... The Foundation has plausibly alleged that its members were similarly situated to individuals against whom the defacement ordinance was not enforced, and that the District discriminated on the basis of viewpoint when enforcing the ordinance. Because the Foundation has failed to adequately allege animus on the part of the District, however, its equal protection challenge fails.

Judge Wilkins filed a concurring opinion, saying in part:

In my view, even though the Foundation must meet the high bar of pleading purposeful discrimination to prevail on its First Amendment claim,.. the high standard is met here.

ADF issued a press release announcing the decision.

 

Injuring Police Chief's Reputation At His Church Was Not Free Exercise Violation

In Chesley v. City of Mesquite,(D NV, Aug. 14, 2023), a Nevada federal district court dismissed a suit brought by Joseph Chesley, Mesquite's former police chief, against the city, its former city manager and others for spreading rumors that Chesley had inappropriate sexual relations with women (including underage women), that he had embezzled money from a local business and improperly approved police overtime. Among others, the rumors were spread to members of Chesley's church.  As one of his claims, Chesley alleged that his free exercise rights were violated because the rumors and the city's inaction in stopping the rumors from spreading destroyed his reputation at his place of worship and impaired his ability to take part in worship at his church. In dismissing this claim, the court said in part:

Under circumstances such as these, where “the government action is neither regulatory, proscriptive, or compulsory” the question is whether the challenged government action “substantially burdens a religious practice and either is not justified by a substantial state interest or is not narrowly tailored to achieve that interest.” ... Chesley has not pled any substantial burdening of his Free Exercise Rights. The harms he alleges—a “destroyed” reputation at his church, and consummate discomfort worshipping there—are subjective, and the Ninth Circuit is clear that “a subjective chilling effect on free exercise rights is not sufficient to constitute a substantial burden.”...

7th Circuit: Parties Cannot Force A Constitutional Ruling On School Aid By Rejecting Statutory Alternative

In St. Augustine School v. Underly, (7th Cir., Aug. 14, 2023), is the latest installment in a case that arose in 2015 and has been litigated up and down the federal and Wisconsin state court system ever since. A Wisconsin statute provides transportation benefits for private religious schools, but only for one school from a single organizational entity in each attendance district.  At issue in this case is whether two Catholic schools in the same attendance district (one billing itself as a "Traditional Catholic School") were sufficiently linked that only one of them could receive the transportation assistance. 

The state Superintendent had concluded that St. Augustine School could not receive benefits because another Catholic school in its attendance district was already getting them. After receiving guidance from the Wisconsin Supreme Court, in December 2021 the U.S. 7th Circuit held that the Superintendent violated Wisconsin statutory law in denying transportation benefits to St. Augustine School, and so remanded the case to the district court for it to impose a remedy. (See prior posting.) Plaintiffs, however, were unhappy because they wished to obtain a ruling on the federal constitutional issues involved, so they made no argument for damages under state law.  The district court thus only issued a declaratory judgment in favor of St. Augustine, denying an injunction and damages. Now on appeal of that decision, the 7th Circuit said in part:

The remaining question is what to do in light of the fact that the Forros unambiguously waived their right to relief under their state-law theories. If by so doing they hoped to force us to reach the federal theories, they were mistaken. We will not allow ourselves to be manipulated into constitutional adjudication in this manner; parties do not have the right to compel a court to write what would essentially be an advisory opinion on a theory that it did not need to reach. St. Augustine IV provided plaintiffs with a clear path to recovery that they chose to forego. Litigants are held to their choices, even when the consequences are harsh. We accordingly see no error in the district court’s decision to treat their requests for damages and injunctive relief under state law as waived and to issue only a declaratory judgment....

Judge Ripple dissented, arguing that the court should reach the federal constitutional issues, saying in part:

As this case has traveled its circuitous path, a regrettable analytical fog has progressively obscured the good faith and thoughtful attempts of all actors, judges and lawyers, to resolve this case. Today, in my view, despite its best efforts, the majority, impeded by this fog, further obscures the matter by drawing the wrong conclusions from this muddied procedural history and, in the process, by departing from the mandate of the Supreme Court of the United States dated July 2, 2020. I respectfully dissent.

6th Circuit: Kentucky Governor Had Qualified Immunity For Covid School-Closing Order

 In Pleasant View Baptist Church v. Beshear, (6th Cir., Aug. 14, 2023), the U.S. 6th Circuit Court of Appeals held that Kentucky Governor Andy Beshear had qualified immunity in a suit challenging his Covid order temporarily barring in-person classes at public and private schools. The suit was brought by a group of churches, private religious schools and parents alleging that the 2020 Covid order violated their free exercise rights (as well as parental rights to send their children to religious schools and  their right to freedom of association). Plaintiffs' request for declaratory relief became moot when the orders were lifted. However, their claims for monetary damages did not. Affirming the district court's finding of qualified immunity, the appeals court said in part:

Neither this court’s nor the Supreme Court’s precedent clearly established that temporarily closing in-person learning at all elementary and secondary schools would violate the Free Exercise Clause when Governor Beshear issued EO 2020-969 on November 18, 2020. As the Governor points out, Plaintiffs have not provided this court with any cases denying a government official qualified immunity for their immediate public-health response to the COVID-19 pandemic.... Because the Governor issued EO 2020-969 in the midst of a vibrant debate on this constitutional issue, he is thus entitled to a qualified-immunity defense. Accordingly, because Plaintiffs cannot demonstrate that a clearly established right existed at the time Governor Beshear issued EO 2020-969....

Judge Murphy filed a concurring opinion.

MD Supreme Court: State Law Sex Discrimination Ban Does Not Include Sexual Orientation Discrimination

In Doe v. Catholic Relief Services, (MD Sup. Ct., Aug. 14, 2023), the Maryland Supreme Court, responding to certified questions from a federal district court, refused in interpreting state law to follow the analogous holding of the U.S. Supreme Court in its Title VII Bostick decision.  The Maryland court held that, in light of the separate prohibition on sexual orientation discrimination in state law, the ban on sex discrimination in the Maryland Fair Employment Practices Act does not also cover discrimination on the basis of sexual orientation. It went on to hold that in light of the specific ban on pay disparities based on sex or gender identity, the Maryland Equal Pay for Equal Work Act does not bar pay disparities based on sexual orientation. Finally the court held that the exemption in the Maryland Fair Employment Practices Act for "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion, sexual orientation, or gender identity to perform work connected with the activities of the religious entity" covers "claims brought by employees who perform duties that directly further the core mission (or missions) of the religious entity." It is not co-extensive with the ministerial exception doctrine.

Justice Hotten, joined by Justice Eaves, filed a dissenting opinion contending that the ban on sex discrimination in both statutes includes sexual orientation discrimination. They would also read the religious institution exemption more narrowly than the majority, contending that it only applies when a nexus exists between the employer’s religious activities and the work that an employee performs.

The underlying case that led to the certified questions involved a complaint by a Program Data Analyst employed by Catholic Relief Services who was denied spousal health benefits for his same-sex spouse.

[Thanks to Arthur Spitzer for the lead.]

Baylor Gets DOE Assurance That It Is Exempt From Title IX Sexual Harassment Rules

In a July 25 letter (full text), the U.S. Department of Education Office of Civil Rights has assured Baylor University that, as a university controlled by a religious organization, it is exempt from various regulations under Title IX to the extent that they are inconsistent with the University's religious tenets.  As reported by the Religious Exemption Accountability Project, in the past many religious universities have been assured they are exempt from Title IX regulations barring discrimination on the basis of sexual orientation, gender identity, marital status, sex outside of marriage, pregnancy or abortion. (See prior posting.) For the first time, however, Baylor was also assured that it is exempt from sexual harassment rules. More specifically, it was assured that compliance with its religious tenets by the University or its students would not constitute “unwelcome conduct” under the Department’s definition of “sexual harassment” under Title IX. 

Baylor's letter requesting a ruling (full text) was filed in response to several complaints filed with the DOE Office for Civil Rights. The letter reads in part:

The University does not discriminate on the basis of sexual orientation or gender identity or expression per se, but it does regulate conduct that is inconsistent with the religious values and beliefs that are integral to its Christian faith and mission....

The OCR complaints at issue here allege that Baylor violated OCR's Title IX regulations by its application of its Statement on Human Sexuality, Sexual Conduct Policy, Civil Rights Policy, Theological Seminary Policy, Baptist Faith and Message of 1963, and Truett Handbook to its campus community, both as a general matter and specifically in three situations: (1) the University's alleged decision to deny applications for an official charter for Gamma Alpha Upsilon, (2) the University's alleged response to notice that students were subjected to harassment based on their sexual orientation and/or gender identity, (3) and the University's alleged decision to pressure University media to not report on LGBTQ events and protests in September and October 2021.

According to an extensive report on Baylor's request, Baptist News Global says in part:

Baylor Assistant Vice President for Media and Public Relations Lori Fogleman said Baylor is responding to the “expanded definition of sexual harassment” under Title IX from the Biden administration, which includes discrimination against LGBTQ people.

NJ Anti-Discrimination Law Creates Defense for Catholic School That Requires Teachers to Follow Catholic Teachings

 In Cristello v. St. Theresa School, (NJ Sup. Ct., Aug. 14, 2023), the New Jersey Supreme Court dismissed a suit against a Catholic school which had fired an art teacher/ toddler room caregiver who was unmarried and become pregnant.  The teacher's employment agreement required her to abide by the teachings of the Catholic Church and prohibited employees from engaging in premarital sex. The teacher sued under the New Jersey Law Against Discrimination (LAD) alleging pregnancy and marital status discrimination.  The court's majority opinion held that the LAD provision creating an exception for religious organizations following the tenets of its religion in establishing employment criteria gives the school an affirmative defense. The majority said in part:

Determining whether a religious employer’s employment action was based exclusively on the tenets of its religion requires application of only neutral principles of law and does not impermissibly entangle the courts in ecclesiastical matters.

Justice Pierre-Louis filed a concurring opinion taking the position that the religious tenet provision does not create an affirmative defense, but instead shifts to plaintiff the requirement to show that the purported reason for the firing was a pretext for prohibited discrimination. However here plaintiff did not show that this was a pretext.

Washington Examiner reports on the decision.

Recent Articles of Interest

From SSRN:

• Victoria Litman, Psychedelic Policy, Religious Freedom, and Public Safety: An Overview, (Ohio State Journal of Criminal Law, Forthcoming).
• Jonathan Harkavy, 2023 Supreme Court Commentary: Employment Law ,(July 29, 2023).
• Cometan, 2023 Global Religious Recognition Report, (July 26, 2023).
• Rachel F. Moran, Racial Equality, Religious Liberty, and the Complications of Pluralism, (Hastings Constitutional Law Quarterly, Vol. 50, No. 2, 2023).
• Agustina Ramón Michel, Abortion. More than Criminalization, not yet Women’s Constituional Right, (En Hübner Mendes, C. y Gargarella, R. (edits.) The Oxford Handbook of Constitutional Law in Latin America. Oxford, Oxford University Press (2020).
• Conor Casey, The Fundamental Law of the Vatican City State: Exploring Hidden Treasures in the Constitution of the World’s Smallest State, (August 3, 2023).
• Troy A. Rule, Preserving Sacred Sites and Property Law, (August 7, 2023).
• Mark Satta, Commercial Discrimination as Religious Messaging in 303 Creative v. Elenis, (Religions (Forthcoming)).

From SSRN (Religious law):

• Saiful Alam, Md., Humayra Akhter, Nurullah Patwary, Md., & Sayeda Fatema, Islamic Articulation of the Carpe Diem Motif in Herrick's 'To Daffodils': A Post-Structuralist and Intertextual Inquiry, (Integrated Journal for Research in Arts and Humanities, 3(4), 59–68, (July 2023)).
• Nathan B. Oman, Property and the Latter-day Saint Tradition, (William & Mary Law School Research Paper No. __, Forthcoming).
• Nathan B. Oman, 'The Blessing That’s Anticipated Here Will Be Realized in the Next Life': The Development of Modern Latter-day Saint Marital Sealing Rules, (Journal of Mormon History 49, no. 3 (2023): 103–40).
• Mark Cammack, Islamic Law as Hermeneutic: Developments within Traditionalist Islam in Indonesia, (29 Southwestern Journal of International Law 53 (2023)).

Hawaii County's Denial of Permit to Temple Did Not Meet Strict Scrutiny Test

In Spirit of Aloha Temple v. County of Maui, (D HI, Aug. 11, 2023), in a case that has been in litigation for more than seven years, a Hawaii federal district court entered partial summary judgment for plaintiffs on one issue in the case. It held that the state had not met the strict scrutiny test on plaintiffs RLUIPA, free exercise and equal protection challenges to the denial of a special use permit to allow Spirit of Aloha Temple to use agriculturally-zoned land for a church and several other church-operated facilities including a wedding venue site. The court concluded that the denial was neither narrowly tailored nor the least restrictive means of furthering a compelling governmental interest. However, a number of other issues remain to be decided before determining whether there were statutory or constitutional violations. There remains the question of whether denial of the special use permit imposed a substantial burden on the Temple. According to the court, for purposes of RLUIPA that, in turn, depends on whether plaintiffs had a reasonable expectation of being able to build a religious institution on the land when they acquired it. For plaintiffs' federal and state free exercise claims, plaintiffs must show that their operation of the property was rooted in religious belief and that the county had an intent to discriminate. The court went on to hold that the RLUIPA non-discrimination (as opposed to its "substantial burden") provisions do not turn on strict-scrutiny review, but instead on whether there was religious discrimination.  When the regulation is neutral, that requires showing an intent to discriminate.

Near-Final Tally of Ohio Issue 1

With over 99% of the votes now counted, Ohio's Issue 1 failed on Tuesday by a vote of 57.01% against and 42.99% in favor. (Results from Secretary of State.) Issue 1 would have made it more difficult for voters to amend the Ohio Constitution, among other things by raising the required popular vote to 60% instead of the current majority.  The immediate aim of proponents of Issue 1 was to make it more difficult to pass a Reproductive Rights amendment that will be on the November ballot.

Expelled Church Members' Claims Barred by Statute of Limitations

In Boyett v. First Baptist Church of Bossier, (LA App., Aug. 9,2023), a Louisiana state appellate court in a 2-1 decision affirmed the trial court's holding that Louisiana's statute of limitations (called "prescription" in Louisiana law) barred a suit by members who had been expelled from the church.  Plaintiffs claimed that the Articles under which they were expelled had been improperly adopted.  Judge Hunter dissenting argued that the majority applied the wrong statute of limitations, so that the trial court should reach the merits of the case using the "neutral principles of law" approach.  He contended that the ecclesiastical abstention doctrine did not require dismissal of the case, and that the court should reverse the trial court's dismissal and remand the case for the taking of additional evidence.

Catholic Couple Sues Foster Care Agency For Religious Discrimination [Revised]

 A Catholic couple has filed suit in a Massachusetts federal district court against the Massachusetts Department of Children and Families claiming free exercise and free speech violations. Plaintiffs were denied a foster care license because they would not be affirming to a child who identified as LGBTQIA.  The complaint (full text) in Burke v. Walsh, (D MA, filed 8/8/2023), alleges in part:

As faithful Catholics, the Burkes believe that all children should be loved and supported, and they would never reject a child placed in their home. They also believe that children should not undergo procedures that attempt to change their God-given sex, and they uphold Catholic beliefs about marriage and sexuality....

In effect, DCF has interpreted its regulations, which require foster families to “support[] and respect[] a child’s sexual orientation or gender identity,” 110 CMR 7.104(1)(d), as an absolute bar for Catholics who agree with the Church’s teaching on sex, marriage, and gender.

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

[Note-- this post was erroneously published previously with a title but no text.]

11th Circuit: PLRA Exhaustion Requirement Does Not Include Filing of Rule Change Petition

In Sims v. Secretary, Florida Department of Corrections,(11th Cir., July 31, 2023), the U.S. 11th Circuit Court of Appeals held that the Prison Litigation Reform Act's requirement that prisoners exhaust available administrative remedies before filing suit only requires exhaustion of the prison system's grievance process.  A prisoner does not also have to file a petition with the Department of Corrections seeking a change in its rules.  At issue was the Florida prison system's denial of a request by a Muslim inmate for an exemption from grooming rules that require beards be no longer than one-half inch.

Suit By Christian Ministry Says Quebec Wrongly Cancelled Its Use of Convention Center

In Canada, suit was filed last week in a Quebec trial court by the Christian organization Harvest Ministries International challenging the province's cancellation of the organization's contract reserving the Quebec City Convention Centre for its Faith, Fire and Freedom Rally.  According to the Motion to Institute Proceedings (full text) in Harvest Ministries International v. Proulx, (Quebec Dist. Ct., filed 8/2/2023), the reservation was cancelled because Harvest Ministries anti-abortion views contradict Quebec's fundamental principles, even though the Rally itself was not an anti-abortion event.  The suit alleges that the cancellation violates Harvest Ministries' freedom of religion, expression and assembly and its right equality protected by Quebec's Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms. It seeks damages of $212,000. The Justice Centre For Constitutional Freedoms issued a press release announcing the filing of the lawsuit.

FSIA Precludes Suit Against Hungary for Property Confiscated from Its Jewish Population In Holocaust

In Simon v. Republic of Hungary, (DC Cir., Aug. 8, 2023), in a case on remand from the Supreme Court, the Court of Appeals for the D.C. Circuit held that under the Foreign Sovereign Immunities Act, the government of Hungary may not be sued in United States Courts for taking of property from its own nationals. The court said in part:

In 1944, as World War II neared its end, the Hungarian government implemented an accelerated campaign to exterminate its remaining Jewish population. Within a matter of months, the government systematically executed over half a million Jews—roughly two-thirds of the Jewish population in Hungary at the war’s outset. This state-perpetrated genocidal campaign ranks among the greatest crimes in human history.

The questions raised by these appeals bear on whether survivors of the Hungarian Holocaust may hale the Hungarian government and its instrumentalities into United States courts to answer for a subset of the wrongs they committed—namely, their confiscation of property from victims of the Holocaust. The plaintiffs invoke the Foreign Sovereign Immunities Act’s expropriation exception as a means to pierce the Hungarian state’s sovereign immunity and assert jurisdiction in federal district court. Defendants object that the exception is inapplicable....

Cognizant of the Supreme Court’s recent holding that “a country’s alleged taking of property from its own nationals” generally falls outside the scope of the Foreign Sovereign Immunities Act’s expropriation exception ..., the plaintiffs in these suits assert they were not Hungarian nationals at the time of the takings at issue. They instead claim that they were either stateless or Czechoslovakian nationals. The district court dismissed the claims of the plaintiffs asserting statelessness but concluded that most of the plaintiffs asserting Czechoslovakian nationality could proceed. 

We largely affirm. Like the district court, we conclude that the plaintiffs claiming statelessness ... have not made out a recognized claim within a Foreign Sovereign Immunities Act exception....

We likewise affirm the district court’s denial of the defendants’ motions to dismiss the claims of some of the plaintiffs asserting Czechoslovakian nationality, with a few exceptions....

Judge Randolph dissented as to the plaintiffs claiming Czechoslovakian nationality.

 

In Contempt Sanction, Court Orders Attorneys To Attend Religious Liberty Training

In Carter v. Transport Workers of America, Local 556, (ND TX, Aug.7, 2023), a Texas federal district court ordered sanctions against Southwest Airlines for its failing to comply with an earlier Order in the case that found the Airline had violated Title VII when it fired a flight attendant because of  her social media messages about her religiously-motivated views on abortion. Southwest claimed that the flight attendant had violated the company's social media policy regarding civility. In its current Order, The court set out a specifically worded communication that the Airline is required to send to its flight attendants regarding its obligation under Title VII not to engage in religious discrimination. The court also ordered that three of the Airline's attorneys who were responsible for non-compliance with the earlier Order attend at least 8 hours of religious liberty training conducted by the Christian legal non-profit Alliance Defending Freedom. The court explained, in part:

When a litigant “does not appear to comprehend” a legal concept, training in “the relevant subject area” constitutes a “particularly apropos” sanction.

[Thanks to Joel Taubman for the lead.]