6th Circuit Says Zoning Restrictions on Prayer Trail Violate RLUIPA

In Catholic Healthcare International, Inc. v. Genoa Charter Township, (6th Cir., Sept. 11, 2023), the U.S. 6th Circuit Court of Appeals ordered a Michigan federal district court to promptly enter a preliminary injunction that will allow a Catholic healthcare organization to restore a Stations of the Cross prayer trail along with a stone altar and mural. Genoa Township zoning officials had insisted that the Prayer Trail should be treated as a church for zoning purposes. Plaintiffs sued contending that the zoning ordinance as applied to them violates RLUIPA. The court said in part:

The question here is whether the Township’s decision to treat the prayer trail as the equivalent of a church building—thereby requiring plaintiffs to apply for a special land-use permit—imposed a substantial burden on their “religious exercise[.]”...

The only factor that the Township mentions, in arguing that plaintiffs have not borne a substantial burden, is whether “a plaintiff has imposed a burden upon itself[.]” Id. This factor reflects that, when a plaintiff has good reason to know in advance that its proposed usage will be subject to an onerous review process, the burdens of that process are not likely to count as substantial for purposes of 42 U.S.C. § 2000cc(a)(1). But here the Township’s zoning ordinance gave plaintiffs little reason to expect the treatment they have received....

... [P]laintiffs had reason to think that their prayer trail would be treated in the same manner as “[p]rivate non-commercial parks, nature preserves and recreational areas”—none of which require a special land-use permit in the type of zoning district ... in which plaintiffs’ parcel is located....

The court also held that a Township ban on organized gatherings on plaintiffs' property would likely substantially burden their religious exercise.

Judge Clay filed a concurring opinion expanding on the legal standards governing claims under RLUIPA.  CBS News reports on the decision.

Former Israeli Prime Minister Wins Defamation Action

Times of Israel reports that a Tel Aviv Magistrate's Court yesterday ruled in favor of former Israeli Prime Minister Naftali Bennett in his defamation action against Rabbi Yosef Mizrachi.  Mizrachi had falsely claimed that Bennett's mother is not Jewish. The court ordered Mizrachi to pay damages and to post an apology on his YouTube channel. The suit is part of a series of defamation actions that Bennett has filed since he left office seeking to “clean the internet” of "poison and fake news" in Israel.

Bulgaria Violates European Convention by Failing to Recognize Same-Sex Married Couple

In Koilova and Babulkova v. Bulgaria, (ECHR, Sept 5, 2023) (full text of decision in French) (Court's English Summary of decision), the European Court of Human Rights ruled that Bulgaria violated Article 8 of the European Convention on Human Rights (Respect for private and family life) by failing to have a procedure for recognizing or registering a same-sex marriage entered in another country. According to the English language summary of the decision, the Court said in part:

... [I]n the absence of official recognition, same-sex couples were nothing more than de facto unions for the purposes of national law, even where a marriage had been validly contracted abroad. The partners were unable to regulate fundamental aspects of life as a couple such as those concerning property, family matters and inheritance, except as private individuals entering into contracts under the ordinary law, where possible, rather than as an officially recognised couple. They were not able to rely on the existence of their relationship in dealings with the judicial or administrative authorities or with third parties. Even assuming that national law had allowed the applicants to apply to the domestic courts for protection of their basic needs as a couple, the necessity of taking such a step would have constituted in itself a hindrance to respect for their private and family life.

[Thanks to Law & Religion UK for the lead.]

Florida Supreme Court Hears Arguments On 15-Week Abortion Ban

On Friday the Florida Supreme Court heard oral arguments (video of full oral arguments) in Planned Parenthood of Southwest and Central Florida v. State of Florida, (FL Sup. Ct., 9/8/2-23). At issue in the case is a state constitutional challenge to Florida's 15-week abortion ban.  The Florida Supreme Court has links to all the pleadings and briefs in the case.

France's Conseil D'Etat Upholds Ban on Wearing Abayas in Schools

On Thursday, France's Council of State upheld the government's ban Muslim girls wearing the abaya at school.   France 24 explains:

President Emmanuel Macron's government announced last month it was banning the abaya in schools, saying it broke the rules on secularism in education that have already seen Muslim headscarves banned on the grounds that they constitute a display of religious affiliation. 

But an association representing Muslims filed a motion with the State Council, France's highest court for complaints against state authorities, for an injunction against the ban on the abaya and the qamis, its equivalent dress for men.

The association argued the ban was discriminatory and could incite hatred against Muslims, as well as racial profiling.

The court's decision, available in French (Association Action Droits des Musulman, (Conseil D'Etat, Sept. 7, 2023) (full text), is summarized by Daily News:

Wearing the abaya "is part of a logic of religious affirmation", estimated the judge in summary proceedings....

Accordingly, its prohibition "does not constitute a serious and manifestly unlawful interference with the right to respect for private life, freedom of worship, the right to education and respect for the best interests of the child or principle of non-discrimination,” he said.

Recent Articles of Interest

From SSRN:

• Ronald J. Colombo, The Repeal of Religious Accommodations – A Constitutional Analysis, (American University Law Review, Forthcoming 2024 Volume 73, Issue 3).
• Laetitia-Ann Greeff, A Critical Analysis of Parental Corporal Punishment: A Call for Legislative Reform (October 18, 2022).
• Elizabeth Platt, The Abortion Exception: A Response to 'Abortion and Religious Liberty', (124 Colum. L. Rev. Forum (2024 Forthcoming)).
• Siddharth Kamath, Reservation in India With Special Reference to EWS Quota, (March 6, 2023).
• Ronnie R. Gipson Jr, The Interjurisdictional Abortion Wars Have Arrived , (University of North Texas at Dallas Law Review On the Cusp, Forthcoming).
• Sai Jahnavi Thota & Shreya Dubey, Succession Rights of Women in India and Muslim Countries: Comparative Analysis, (May 2, 2023).

From SmartCILP:

• David N. Wecht, William O. Douglas Lecture. Majoritarianism Run Riot: Christian Supremacism and the Religion Clauses, 58 Gonzaga Law. Review 93-108 (2022-2023).
• Adam Mestyan & Rezk Nori, The Probate Regime: Enchanted Bureaucracy, Islamic Law, and the Capital of Orphans in Nineteenth-Century Egypt, 40 Law & History Review 597-624 (2022).
• Thomas C. Berg, Freedom in Serving Others: Arguments and Sources for Religious Institutional Freedom, 19 University of St. Thomas Law Journal 33-62 (2023).

Video Pressing Estranged Husband to Give Wife a Get Is Protected Speech

In S.B.B. v. L.B.B., (NJ App., Sept. 6, 2023), a New Jersey appellate court vacated a Final Restraining Order (FRO) issued by a trial court under the Prevention of Domestic Violence Act. The court said in part:

The FRO was based on the predicate act of harassment. The communication underlying the trial judge's finding of harassment was defendant's creation and dissemination of a video accusing her estranged husband of improperly withholding a get, a Jewish bill of divorce, and asking community members to "press" her husband to deliver the get. Because defendant's communication constituted constitutionally protected free speech, we reverse.

In reaching that conclusion, the appellate court said in part:

[The trial court] judge's finding that the Jewish community was prone to violence against get refusers—and the implicit holding that defendant was aware of and intentionally availed herself of such violent tendencies—is not supported by the record. The video was intended to get a get. The video did not threaten or menace plaintiff, and nothing in the record suggests that plaintiff's safety or security was put at risk by the video.... Without credible evidence that the video incited or produced imminent lawless action or was likely to do so, defendant's speech does not fall within the narrow category of incitement exempted from First Amendment protection.

Volokh Conspiracy has more on the decision.

Consent Decree Affirms Public Accommodation Law Exemption for Catholic Bookstore

 A Florida federal district court entered a Consent Order (full text) yesterday in The Catholic Store, Inc. v. City of Jacksonville, (MD FL, Sept. 7, 2023).  The Order concludes that plaintiff, a privately-owned, for-profit Catholic bookstore qualifies for the religious-organization exemption in Jacksonville, Florida's public accommodation law. This exempts the bookstore from the non-discrimination provisions relating to sexual orientation and gender identity. In its original complaint, the store contended that the public accommodation law would have required that employees address customers using their preferred pronouns and titles, regardless of their biological sex. The store also said it wants to post its Catholic beliefs about sexuality on its website and on social media. (See prior posting.) ADF issued a press release announcing the settlement in the case.

Coach Kennedy Resigns After One Post-Game Prayer

Last year, in a widely publicized Supreme Court decision, Bremerton, Washington high school football coach Joe Kennedy won the right to offer a personal prayer on the 50-yard line immediately after football games. After his Supreme Court win, Kennedy was reinstated as coach.  AP now reports that on Wednesday, after one game back at which he offered a brief post-game prayer, Kennedy resigned his coaching position and returned to Florida where he had been living full time. Kennedy posted a statement on his personal website, saying in part: "I believe I can best continue to advocate for constitutional freedom and religious liberty by working from outside the school system so that is what I will do."

California AG Challenges School District's Policy On Disclosure To Parents of Students' Gender Dysphoria

Suit was filed last week by California's Attorney General against the Chino Valley Unified School District challenging the district's policy that requires school personnel to notify parents whenever a student asks to be identified or treated as a gender other than the biological sex listed on the student's birth certificate.  The complaint (full text) in People ex rel. Bonta v. Chino Valley Unified School District, (CA Super. Ct., filed 8/28/2023), alleges in part:

Policy 5020.1 has placed transgender and gender nonconforming students in danger of imminent, irreparable harm from the consequences of forced disclosures. These students are currently under threat of being outed to their parents or guardians against their express wishes and will. They are in real fear that the District’s policy will force them to make a choice: either “walk back” their constitutionally and statutorily protected rights to gender identity and gender expression, or face the risk of emotional, physical, and psychological harm from non-affirming or unaccepting parents or guardians.

Policy 5020.1 unlawfully discriminates against transgender and gender nonconforming students, subjecting them to disparate treatment, harassment, and abuse, mental, emotional, and physical. This is by design: the Board’s plain motivations in adopting Policy 5020.1 were to create and harbor animosity, discrimination, and prejudice towards these transgender and gender nonconforming students, without any compelling reason to do so.

The Attorney General issued a press release announcing the filing of the lawsuit.

Yesterday, in an oral ruling from the bench, the court issued a temporary restraining order barring the school district from enforcing its disclosure policy. The Attorney General issued a press release announcing the court's ruling and providing links to briefs in the case.

California Legislature Passes Amendment to Outlaw Caste Discrimination

California's Unruh Civil Rights Act already bars discrimination, among other things, on the basis of "ancestry". The California legislature this week gave final passage to an amendment to the Act (full text) that adds a definition of "ancestry", making it clear that it includes discrimination on the basis of caste. The amendment defines "caste" as "a system of social stratification on the basis of inherited status". The bill now goes to Governor Gavin Newsom for his signature. The Independent reports on the passage of the bill and on those who opposed its passage.

Church Member's Defamation Suit Dismissed on Church Autonomy Grounds

In David v. South Congregational Church, (MA Super. Ct., Sept. 1, 2023), a Massachusetts trial court dismissed on church autonomy grounds a defamation suit against a Church, its Pastor and its Moderator brought by a Church member who was removed from the Church's Leadership, Finance and Investment Committees.  Plaintiff, a financial advisor, claims that he was inaccurately charged with unethical conduct in handling the funds of another church member. He seeks damages and other remedial action, including reinstatement on church committees. The court said in part:

... [T]here is no evidence that the defendant Moderator Figueroa's email to six Church leaders advising of the plaintiff's removal from the three Church leadership committees was ever communicated or published by the defendant Church officials beyond those leadership officials.... The sole disciplinary action taken by the church defendants was the plaintiff's removal from Church committees and positions of [Church] leadership.... Plaintiff's claimed defamation damages ... are necessarily limited exclusively to his reputation amongst the internal Church leadership.

But even limiting the scope of plaintiff's tort damage claim will not save his cause of action against the defendant Church, its Pastor and Moderator. A jury ... may not be permitted to second-guess church officials' and require them to pay damages because the jury disagrees with internal church discipline decisions...

The plaintiff is improperly asking this court to interject itself into-- and moreover reverse-- the internal disciplinary action imposed by the Church Pastor and Moderator upon another Chruch member.

[Thanks to John Egan for the lead.]

CT Supreme Court Upholds Refusal to Enforce Ketubah in Divorce Action

In Tilsen v. Benson, (CT Sup. Ct., Sept. 5, 2023), the Connecticut Supreme Court upheld a trial court's refusal to enforce the provisions of the parties' ketubah (Jewish marriage document) in setting alimony in a marital dissolution action. The husband, a rabbi, sought enforcement of the ketubah as a prenuptial agreement.  The ketubah provided that any divorce would be "according to Torah law."  Husband contended that meant a 50/50 division of property and no obligation to pay alimony, but conflicting interpretations of Jewish law were presented to the trial court.  The Supreme Court said in part:

... [W]e conclude that the plaintiff’s desired relief violates the establishment clause under the neutral principles of law doctrine. Most significant, the parties’ ketubah is facially silent as to each spouse’s support obligations in the event of dissolution of the marriage, thus leaving the court to determine those obligations from external sources as to Jewish law, namely, the parties’ expert witnesses, whose proffered opinions differed in this case, instantly alerting the court as to the establishment clause dilemma....

The court also rejected husband's argument that refusal to enforce the ketubah violated his free exercise rights by preventing him from divorcing according to Jewish law and denying him the generally available benefit of enforcing a prenuptial agreement only because of the agreement's religious nature.  The court said in part:

... [E]nforcement of this vaguely worded ketubah in the guise of protecting the plaintiff’s free exercise rights would have put the trial court on the horns of an establishment clause dilemma.

Second, the trial court did not deny the plaintiff access to the court or otherwise exact some kind of penalty in connection with his religious beliefs or practices; its decision simply meant that this dissolution action would be governed by generally applicable principles of Connecticut law as expressed in our alimony and equitable distribution statutes. Parties who desire specific tenets of their religious beliefs to govern the resolution of marital dissolution actions remain free to contract for that relief via a properly executed antenuptial, postnuptial, or separation agreement that is specifically worded to express those beliefs in a way that avoids establishment clause concerns under the neutral principles of law doctrine.

Religious Organization Lacks Standing to Challenge Interpretation of State Anti-Discrimination law

In Union Gospel Mission of Yakima, Wash. v. Ferguson, (ED WA, Sept. 1, 2023), a Washington federal district court dismissed for lack of standing a suit challenging the constitutionality of the Washington Supreme Court's interpretation of the state's anti-discrimination law. The state Supreme Court in a prior case interpreted the statute's exemption for non-profit religious organizations to be limited to situations covered by the ministerial exemption doctrine.  In this case, plaintiff that operates a homeless shelter and thrift store and also provides social services sought a declaration that religious organizations have a constitutional right to hire, even in non-ministerial positions, only those who agree with its religious beliefs and who will comply with its religious tenets and behavior requirements. In dismissing the lawsuit, the court found that there was no credible threat of enforcement against plaintiff, and that this suit was a disguised attempt to appeal a Washington Supreme Court decision in violation of the Rooker-Feldman Doctrine.

Hindu Organization Lacks Standing to Challenge State's Caste Discrimination Charges

In Hindu American Foundation, Inc. v. Kish,(ED CA, Aug. 31, 2023, a California federal district court held that a national education and policy organization that promotes religious freedom for Hindu Americans lacks standing to sue the California Civil Rights Department for asserting in enforcement actions that the caste system and caste discrimination is part of Hindu teachings and practices.

... [P]laintiff’s complaint fails to allege facts that, if proven, would show that plaintiff is “sufficiently identified with and subject to the influence” of the individuals it seeks to represent in this lawsuit.... Indeed, it is unclear even which specific individuals plaintiff seeks to represent in this action because its complaint merely alleges that it seeks to protect the constitutional rights of “all Hindu Americans” and “all Americans of faith.”...

See prior related posting.  Courthouse News Service reports on the decision.

Recent Articles and Books of Interest

From SSRN:

• Shelley Ross Saxer, Owning Church Property, (Florida State University Law Review, Forthcoming).
• Hershey H. Friedman, The Art of Argumentation: A Jewish Approach, (August 15, 2023).
• Elizabeth Sepper, Free Exercise of Abortion, (Brigham Young University Law Review, Vol. 49, 2023).
• Marc Spindelman, Trans Sex Equality Rights After Dobbs, (172 U. Pa. L. Rev. Online 1 (2023)).
• Rona Kaufman Kitchen, Privacy: Pre- and Post-Dobbs, (Duquesne University Law Review, Vol. 61, No. 1, 2023).
• Naomi R. Cahn, Mary E. Ziegler & Maxine Eichner, Erosion by Misdirection: The New Uses and Abuses of Parental Rights, (Virginia Public Law and Legal Theory Research Paper No. 2023-62 (2023)).

From SSRN (Islamic Law):

• Nzube Udechukwu, Critical Analysis of the Punishments of Canning and Amputation Under the Penal Code Act and Other Sharia Criminal Legislation Vis-à-vis the 1999 Constitution of the Federal Republic of Nigeria, as Amended, (August 15, 2023).
• Nasratullah Nasrat, Rohullah Hamidi, Abdul Rahman Mubashir & Shahidullah Safi, Ways to Reduce Poverty in the Economic System of Islam, (Integrated Journal for Research in Arts and Humanities, Volume-3 Issue-4, July 2023, pp. 113-120).
• Abdulrasaq Ariwoola, Challenges and Prospects of Cryptocurrency in Islamic Finance in Nigeria, (August 22, 2021).
• Zainuddin, Sahban & Andi Risma, Halal Certification as Sharia Legitimacy for Economic Empowerment of Zakat Mustahiq, (Journal of Law, Policy and Globalization, Vol.127, 2022).

From SmartCILP:

• Michael D. McNally, The Sacred and the Profaned: Protection of Native American Sacred Places That Have Been Desecrated, 111 California Law Review 395-464 (2023).
• Khaled A. Beydoun & Nura A. Sediqe, Unveiling: The Law of Gendered Islamophobia,111 California Law Review 465-527 (2023).
• Patricia McGuire, Title IX and Catholic Colleges' Long March into Modernity, [Abstract], 56 Creighton Law Review 341-358 (2023).
• Pooja R. Dadhania, Gender-Based Religious Persecution, 107 Minnesota Law Review 1563-1619 (2023).
• Thomas John Paprocki, Foreword. The Essential Relationship of the Judeo-Christian Intellectual Tradition to Ethics, Law & Public Policy, 37 Notre Dame Journal of Law Ethics & Public Policy 1-10 (2023).
• John S. Ehrett, Virtue and the Administrative State, [Abstract], 37 Notre Dame Journal of Law Ethics & Public Policy 43-80 (2023).

Recent Books:

• Nathan S. Chapman & Michael W. McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience, (Oxford University Press, June 27, 2023). reviewed in the Wall Street Journal.
• Paul L. Heck, Political Theology and Islam From the Birth of Empire to the Modern State, (Notre Dame University Press, November 2023).
• Thomas C. Berg, Religious Liberty in a Polarized Age, (W.D. Eerdmans Publishing Co., (July 11, 2023). Reviewed in a University of St. Thomas press release.

Court Refuses Stay Pending Appeal of Order That Attorneys Get Religious-Liberty Training

As previously reported, last month 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 then filed a motion to stay the sanctions while the case is appealed. In Carter v. Transport Workers Union of America, Local 556, (ND TX, Aug. 31, 2023), the court denied the motion to stay the sanctions. Among other things, Southwest objected to the court's requirement 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 said in part:

... Southwest complains that “[r]equiring religious-liberty training from an ideological organization with a particular viewpoint on what the law requires” is “unprecedented.” That appears to be more of a gripe than a legal objection, because Southwest doesn’t make any legal argument for why training with an “ideological organization” is unconstitutional or otherwise contrary to law.

In any event, the Court selected ADF for the following reason: Southwest does not appear to understand how federal law operates to protect its employees’ religious liberties. ADF has won multiple Supreme Court cases in recent years on the topic of religious liberties, evidencing an understanding of religious liberties.  And because ADF has agreed to conduct topical trainings in the past, ADF appears well-suited to train Southwest’s lawyers on a topic with which the lawyers evidently struggle.

In a footnote, the court added:

This doesn’t appear to be a First Amendment argument, as Southwest doesn’t cite the First Amendment or any First Amendment caselaw, so it appears that Southwest forfeited any First Amendment arguments concerning ADF’s viewpoint.

LawDork reports on the decision.

Texas Supreme Court Allows Ban on Transgender Care for Minors to Go into Effect

The Texas Supreme Court yesterday in State of Texas v. Loe, (TX Sup. Ct., Aug. 31, 2023), issued an Order allowing SB 14 to go into effect.  The law prohibits treating minors for gender dysphoria with surgery, puberty blocker or hormones. According to an ACLU press release:

A Travis County District Court had granted a temporary injunction last week that blocked implementation of the ban, but the Texas Attorney General immediately appealed to the Texas Supreme Court, thereby staying the injunction. The Texas Supreme Court did not provide any written explanation for allowing the law to remain in effect.

Court OK's Denial of Unemployment Benefits for Religious Objector to Covid Vaccine Mandate

In In re Parks v. Commissioner of Labor, (NY App., Aug. 31, 2023), a New York state appellate court affirmed the decision of the state Unemployment Insurance Appeal Bord denying unemployment compensation to a medical center security guard who was fired for refusing to comply with a Covid vaccine mandate. The court said in part:

Although claimant refused to comply with the mandate for personal reasons that he characterized as based upon his religious beliefs, the state mandate did not authorize a religious exemption. Contrary to claimant's contention that the vaccine mandate violates his First Amendment religious and other constitutional rights, religious beliefs do not excuse compliance with a valid, religion-neutral law of general applicability that prohibits conduct that the state is free to regulate, as the Board recognized.... When employment is terminated as a consequence of the failure to comply with such a law, including noncompliance with a religious motivation, the First Amendment does not prohibit the denial of unemployment insurance benefits based upon that noncompliance where, as here, the mandate has a rational public-health basis and is justified by a compelling government interest....

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Reproductive Rights Proponents Sue Ohio Ballot Board Over Ballot Language

On Monday, a suit seeking a writ of mandamus was filed in the Ohio Supreme Court by backers of Issue 1, "Right to Reproductive Freedom with Protections for Health and Safety." The suit challenges the Ohio Ballot Board's revised language describing the state constitutional amendment that will be on the November ballot in the state. (See prior posting.) Instead of placing the text of the proposed Amendment on ballots, the Ballot Board drafted new language which plaintiffs say misrepresents the proposed amendment. The complaint (full text) in State of Ohio ex rel. Ohioans United for Reproductive Rights v. Ohio Ballot Board, (OH Sup. Ct. filed 8/28/2023), alleges in part:

Article XVI of the Ohio Constitution requires the Ohio Ballot Board to prescribe ballot language for the Amendment that “properly identif[ies] the substance of the proposal to be voted upon” and does not “mislead, deceive, or defraud” voters. The language the Ballot Board adopted at its August 24, 2023, meeting flouts those requirements and aims improperly to mislead Ohioans and persuade them to oppose the Amendment. Accordingly, Relators request that the Court issue a writ of mandamus directing the Ballot Board to reconvene and adopt the full text of the Amendment as the ballot language. That remedy is appropriate because the Ballot Board’s prescribed language is irreparably flawed. In the alternative, Relators request that the Court issue a writ of mandamus directing the Ballot Board to reconvene and adopt ballot language that properly and lawfully describes the Amendment, correcting the numerous defects in the existing language....

CBS News reports on the lawsuit.