UN Marks 75th Anniversary of Genocide Convention

Today is the United Nations International Day of Commemoration and Dignity of the Victims of the Crime of Genocide and of the Prevention of This Crime. (UN press release.) It marks Saturday's 75th Anniversary of the 1948 Genocide Convention. The U.S. Commission on International Religious Freedom also issued a press release marking the occasion, saying in part:

USCIRF notes with deep sadness that since the convention’s ratification, millions of people, including those targeted on the basis of religion, have been killed in genocidal campaigns by states and nonstate actors alike.

6th Circuit Hears Arguments on Standing to Challenge Gender Identity Ban in Health Care

On Wednesday, the U.S. 6th Circuit Court of appeals heard oral arguments in American College of Pediatricians v. Becerra. (Audio of full oral arguments.) In the case, a Tennessee federal district court dismissed for lack of standing a challenge to a rule promulgated by the Department of Health and Human Services that barred discrimination on the basis of gender identity in the furnishing of health care. The court also concluded that plaintiffs lacked standing to challenge an HHS rule requiring grant recipients to recognize same-sex marriages. (See prior posting.) 

Appeals Court Hears Religious Challenges to Indiana Abortion Restrictions

On Wednesday, the Indiana Court of Appeals heard oral arguments in Individual Members of the Medical Licensing Board of Indiana et al. v. Anonymous Plaintiff 1. (Video of full oral arguments.) In the case, an Indiana state trial court preliminarily enjoined the state from enforcing Indiana's law restricting abortions against plaintiffs whose religious beliefs permit or require abortions in situations not allowed under Indiana law. (See prior posting.) The trial court also certified the case as a class action. (See prior posting.) Indy Star reports on the oral arguments.

Denial of Permission to Build Grotto Did Not Violate RLUIPA

 In Frederic v. City of Park Hills Board of Adjustment, (KY App., Dec. 1, 2023), a Kentucky state appeals court held that a denying a church permission to build a grotto on its property does not violate the Religious Land Use and Institutionalized Persons Act.   The court said in part:

The application of the ordinance to prohibit construction of the grotto may make practice of religion somewhat more difficult for the church’s congregation or the adherents of the Catholic faith broadly, but the Zoning Ordinance is not inherently inconsistent with their religious beliefs. Accordingly, we find the Park Hills Zoning Ordinance imposes no substantial burden on the religious exercise of any Appellee and, therefore, the ordinance does not constitute a violation of RLUIPA.

Elimination of Religious Exemption from School Vaccination Requirements Is Upheld

 In Milford Christian Church v. Russell-Tucker, (D CT, Dec. 1, 2023), a Connecticut federal district court dismissed 1st and 14th Amendment challenges to Connecticut's removal of its religious exemption from school vaccination requirements. The court said in part:

To be clear, Plaintiffs do argue that Conn. Gen. Stat. § 10-204a is not a neutral law and that it “specifically targeted religious practices that it disagreed with – refusing to take a vaccine because of its ingredients – and it eliminated any tolerance for those religious beliefs by completely foreclosing all avenues for parents who hold religious beliefs against taking vaccines to education their children at al.”... But this argument ... is based on Plaintiffs contention that Defendants’ failure to eliminate medical exemptions and legacy exemptions undermines their stated goal of protecting children’s and community health. ...

Here, the conduct regulated by Conn. Gen. Stat. § 10-204a—requiring vaccination before attending school—is applied to everyone regardless of religious or secular objections. 

The secular conduct permitted—exemptions for medical reasons—does not “undermine[] the government’s asserted interests in a similar way,”... These medical exemptions—because they are limited in number—are not “at least as harmful to the legitimate government interest purportedly justifying it,”....

In We the Patriots...., the Second Circuit held that that “protecting public health is a compelling government interest,”... and that “Act’s repeal of the religious exemption is rationally related to that interest because it seeks to maximize the number of students in Connecticut who are vaccinated against vaccine-preventable diseases.”...

To the extent that mandating the vaccination of students affects the Plaintiffs’ speech rights, it is “an incidental burden” related to a “neutral regulation” for “substantial” public health reasons, an interest not achievable by not requiring vaccinations, despite any “incidental” message it sends Plaintiffs’ about their religion....

Exclusion of Parochial School Students from District's Extracurricular Activities Violates Free Exercise

In Religious Rights Foundation of PA v. State College Area School District, (MD PA, Dec. 1, 2023), a Pennsylvania federal district court refused to dismiss a free exercise challenge to a school district's policy that allowed district students enrolled in a home school program or in a charter school to participate in the district's extracurricular activities, but did not allow parochial school students to participate.  The court said in part:

SCASD presents its policy as one prohibiting private students’ involvement in extracurricular programming and argues that by this definition its policy would be generally applicable. But by carving exemptions out of the definition of a policy, a defendant can make any policy appear generally applicable. This approach is clearly circular for the obvious reason that “every law applies to everything it applies to.” ...

Instead, the policy is more accurately stated at a broader level of generality—only students enrolled in SCASD may participate in its extracurricular activities. That general policy is subject to two categorical exemptions for charter-schooled and homeschooled students....

Where a regime refuses to exempt religious conduct but imposes a categorical exemption for secular conduct which threatens an analogous harm to the stated interest, it is a foregone conclusion that the regime is underinclusive. For if SCASD had a policy narrowly tailored to prevent overcrowding of its extracurricular programming, it would not have had the homeschool and charter school exemptions in the first place.....

Plaintiffs attend parochial schools as a form of religious exercise. Other students attend homeschool and charter school for their own reasons. Under the Free Exercise Clause, religious reasons for not attending public school must be considered at least as important as any secular reason. Plaintiffs have adequately alleged that SCASD’s failure to extend its exemption to students who do not attend its school for religious reasons offends the Free Exercise Clause, as it denies a government benefit on the basis of religious exercise through a law which is not generally applicable....

At one point in its opinion, the court added:

If SCASD proffers different justifications for its scheme of exemptions later in this litigation, such that strict scrutiny does not apply, it might succeed in defending the status quo. But such a justification must actually be grounded in some fact distinguishing homeschooled and charter-schooled students from parochially schooled students, in relation to the risks posed by allowing their participation.

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

RELIGION CLAUSE IS ON A PUBLICATION BREAK UNTIL DECEMBER 7

Christian Non-Profit Cannot Rescind Job Offer Because of Same-Sex Marriage

In McMahon v. World Vision, Inc., (WD WA, Nov. 28, 2023), a Washington federal district court held that a Christian non-profit organization violated Title VII and the Washington Law Against Discrimination when it rescinded a job offer originally made to plaintiff after it learned that she was in a same-sex marriage. Plaintiff had been offered the position of customer service representative which involved telephone cultivation of donor relationships. The court held that the religious employer exemption in Title VII only immunizes religious discrimination by such organizations; it does not immunize them from sex discrimination claims. It also held that the ministerial exception doctrine does not apply to the position offered to plaintiff.

Similarly, the rejected the bona fide occupational qualification defense, saying in part:

Nothing in the record indicates that being in a same-sex marriage affects one’s ability to place and field donor calls, converse with donors, pray with donors, update donor information, upsell World Vision programs, or participate in devotions and chapel.

The court went on to find that both Title VII and the WLAD are neutral laws of general applicability so that only rational basis review is required. Finally the court rejected defendants' free speech and expressive association claims.

British Appeals Court Upholds Preacher's Fraud Conviction For Selling COVID Preventative

In Wiseman v. Rex, (EWCA, Nov. 20, 2023), Britain's Court of Appeal upheld the fraud conviction of the head of the Kingdom Church for selling an oil mixture that he represented would protect against or cure COVID.  According to the court:

5.... Using the name Prophet Climate Wiseman, he described the oil mixture on his website ... as containing cedar wood, hyssop and prayer, and stated that it had “sat upon the altar for 7 days”.

6. The oil was generally referred to as “plague protection oil” or “divine cleansing oil”. Through its use, together with a scarlet yarn, it was said that the special ingredients “act like an invisible barrier” and that “coronavirus and any other deadly thing will pass over” the user....

8. The prosecution case was that promotion and sale of the oil mixture was little more than exploitative commercial opportunism disguised as an article of faith....

9. The defence case was that the appellant had promoted and sold the oil mixture in good faith. It was aimed at people who believed in God, and when the oil mixture was combined with prayer it would work to protect against and cure coronavirus.... He believed in the truth of claims made by him in respect of the oil mixture....

Appellant was given a suspended prison sentence, a 130 hour community service requirement and a costs order equivalent to more than $76,000 (US).  Appellant's unsuccessful appeal focused primarily on the judge's instructions to the jury and on statements by counsel during closing arguments.  PA Media reports on the decision.

EU Court OK's Neutral Ban on Employees Wearing Any Symbol of Belief

In Request for a preliminary ruling under Article 267 TFEU from the tribunal du travail de Liège (Labour Court, Liège, Belgium), (EUCJ, Nov. 28, 2023), the European Union Court of Justice, interpreting Council Directive 2000/78 (Equal Treatment in Employment) held:

an internal rule of a municipal authority prohibiting, in a general and indiscriminate manner, the members of that authority’s staff from visibly wearing in the workplace any sign revealing, in particular, philosophical or religious beliefs may be justified by the desire of the said authority to establish, having regard to the context in which it operates, an entirely neutral administrative environment provided that that rule is appropriate, necessary and proportionate in the light of that context and taking into account the various rights and interests at stake....

The Court also issued a press release summarizing the decision.

Jewish Groups Sue Over Berkeley Law Student Organizations' Antisemitic Policies

Suit was filed yesterday in a California federal district court against the University of California at Berkely and Berkeley Law School challenging growing antisemitic discrimination and harassment on campus. The complaint (full text) in Louis D. Brandeis Center, Inc. v. Regents of the University of California, (ND CA, filed 11/28/2023), alleges that policies of law student organizations violate the Equal Protection and Free Exercise Clauses, violates the §1981 right to contract and violates Title VI of the 1964 Civil Rights Act. The complaint alleges in part:

4. In spite of the recognition of anti-Zionism as a form of anti-Semitism, no fewer than 23 Berkeley Law student organizations have enacted policies to discriminate against and exclude Jewish students, faculty, and scholars. For example: 

• To be a member of Women of Berkeley Law, the Queer Caucus at Berkeley, or the Asian Pacific American Law Students Association, Jewish students must accede to the groups' support of the Boycott Divestment and Sanctions movement, which seeks to dismantle the modern State of Israel; 

• In order to volunteer to provide pro bono legal services through a number of Berkeley Law Legal Services organizations, Jewish students must undergo a "Palestine 101" training program that emphasizes the illegitimacy of the State of Israel; 

• And to speak to any of these student organizations, invited speakers must first repudiate Zionism under a bylaw that prohibits speakers who hold Zionist views (the "Exclusionary Bylaw"). In fact, the Berkeley Journal of Gender, Law, and Justice, goes one step further, prohibiting Zionists not only from speaking to its members but from publishing in its pages. 

5. Under these policies, Jewish students, faculty, and guest speakers must deny a central part of their cultural, ancestral heritage and a fundamental tenet of their faith in order to be eligible for the same opportunities Berkeley accords to others....

118.  Specifically, Defendants have selectively chosen not to enforce Berkeley's all-comers policy and Policy on Nondiscrimination against student organizations in the Law School and the undergraduate campus that have discriminated against or excluded Jewish members of the school community from participating in organizations, programs, and activities. For similar reasons, Defendants' decision not to enforce the Policy on Nondiscrimination against these groups where they refuse to accept Jewish speakers is unlawful.,,,

Politico reports on the lawsuit.

2nd Circuit: 1st Amendment Free Exercise Claim Requires Only "Burden", Not "Substantial Burden" On Religion

In Kravitz v. Purcell, (2d Cir., Nov. 27, 2023), the U.S. 2nd Circuit Court of Appeals held that unlike suits under RFRA, an inmate alleging a 1st Amendment violation of his religious freedom need not show a "substantial burden" on his sincere religious beliefs, but only a "burden." The suit was brought by an inmate whose observance of the Jewish holiday of Shavuot was impaired by harassment of prison correctional officers. As described by the court:

The admissible evidence shows that Kravitz was unable to observe his religious holiday due to the abusive conduct of corrections officers. On the first night, corrections officers obstructed all communal prayer and threw paper bags at the inmates, “laughing and say[ing], here is your kosher meal. You Jew, blah, blah, and F-U.” ... On the second night, an officer interrupted Kravitz’s prayer after approximately thirty seconds, stating, “I don’t want to hear that. You need to stop and get eating that food. I got things to do.” ... 

In vacating the district court's grant of summary judgment, the court said in part:

When we are considering government policies that are not neutral and generally applicable—that is, policies that discriminate against religion rather than burden it incidentally—there is no justification for requiring a plaintiff to make a threshold showing of substantial burden. “The indignity of being singled out for special burdens on the basis of one’s religious calling is so profound that the concrete harm produced can never be dismissed as insubstantial...." 

... The district court erred in deciding that the burden on Kravitz’s observance was insufficient to establish an infringement of his right to free exercise under the First Amendment. The district court could reach that conclusion only by deciding that thirty seconds of prayer or a blessing over bread suffices for Shavuot observance. But what the observance of Shavuot entails is beyond the competence of a federal court.

Attorney Fee Award to Freedom from Religion Foundation of $342K Recommended.

In another demonstration of the high cost to governmental entities of litigating First Amendment claims, a Texas federal magistrate judge in Freedom from Religion Foundation v. Abbott, (WD TX, Nov. 27, 2023) has recommended an award of attorneys' fees to FFRF of $342,566 (plus costs of $3,957). At issue in the case was the removal of FFRF's "Bill of Right Nativity Exhibit" from the Texas state capitol. The case twice made its way to the 5th Circuit Court of Appeals (see prior postings 1, 2).

Kapparot Protesters Lose Suit Against City

In Karlan v. City of Los Angeles, (CA App., Nov. 27, 2023), a California state appellate court affirmed the dismissal of a lawsuit brought by protesters who objected to an Orthodox synagogue's pre-Yom Kippur kapparot ritual in which chickens are killed and their carcasses are discarded.  According to the court:

The complaint alleged the City abused its discretion and endorsed the exercise of religion by refusing to enforce Penal Code section 597, which prohibits the intentional and malicious killing of animals, against Kapparot practitioners. The complaint also alleged violations of the Tom Bane Civil Rights Acts ... and the Ralph Civil Rights Act of 1976... against Captain Vernon for his threats to arrest appellants if they used a projector or amplified sound during their protest....

The order appellants seek in this case—“to compel [the City] ‘to make enforcement decisions without regard to religion’”—would control the manner in which the City exercises its discretion to enforce criminal laws. This type of order is barred under the rule codified in Civil Code section 3369....

Appellants here fail to demonstrate how the City acted unreasonably and arbitrarily. Appellants admit their purpose in filing this action was to obtain a ruling as to whether “religious motivation [can lawfully] create[ ] an exemption from prosecution” under Penal Code section 597. Appellants’ pursuit of a definitive ruling means the issue remained unsettled at the time the City made its choice not to enforce the law....

... Appellants identify no allegation in which Captain Vernon threatened them with violence beyond his threats of arrest. Without more, appellants have failed to plead sufficient facts to establish violations under the Bane and Ralph Act....

Appellants finally contend ... violation of the Establishment Clause..... Raised for the first time on appeal, appellants contend they have taxpayer standing to assert this claim. Appellants’ failure to present this theory in the trial court and adequately brief the issue on appeal has forfeited the argument....

Australian State's Religious Vilification Act Takes Effect

As reported by Law and Religion Australia, the New South Wales Religious Vilification Act 2023 (full text) which was enacted in August took effect on November 11. The law provides in part:

It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for or severe ridicule of—

(a) a person on the ground the person— (i) has, or does not have, a religious belief or affiliation, or (ii) engages, or does not engage, in religious activity, or

(b) a group of persons on the ground the members of the group— (i) have, or do not have, a religious belief or affiliation, or (ii) engage, or do not engage, in religious activity.

Among the exceptions in the law are: 

[A] public act, done reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of an act or matter.

Recent Articles of Interest

From SSRN:

• Imran A. Nyazee, The Probable Islamic State of the Future, (October 21, 2023).
• Mark Satta, 303 Creative v. Elenis, Groff v. DeJoy and the Difference a Sentence Can Make, (The Canopy Forum, 2023).
• Rafal Mańko, Exceptio Popularis: Resisting Illiberal Legality, (forthcoming in "Law, Populism and the Political in Central and Eastern Europe", edited by Rafał Mańko et al., Birkbeck Law Press (Routledge), 2024).
• Andrew M. Koppelman, Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment, (Wayne Law Review, Forthcoming).
• Anne Marie Lofaso, Does Title VII Prohibit Discrimination in Employment-Transfer Decisions Only if They Cause Materially Significant Disadvantages for Employees?, ( PREVIEW of United States Supreme Court Cases, Vol. 52, Issue 3 (2023)).
• Erika Bachiochi & Rachel Morrison, Dobbs, Equality and the Contested Meaning of Women's Rights, (Texas Review of Law and Politics (Fall 2024), Forthcoming).
• Ben Charoenwong, Shariah-Compliant Investing in the Machine Age: Equity Classifications with Machine Learning, (September 2021).

From SmartCILP:

• Richard P. Hiskes, The Image of a Lesser God: Imago Dei and the Human Rights of Children, [Abstract], 45 Human Rights Quarterly 513-532 (2023).

Court Disqualifies Proposed Nevada Reproductive Freedom Amendment From 2024 Ballot

In Washington v. Aguilar, (NV Dist. Ct., Nov. 21, 2023), a Nevada state trial court held that an Initiative Petition proposing a Reproductive Freedom Constitutional Amendment could not be placed on the 2024 ballot. The court held that the initiative proposal violates the single subject rule, contains a misleading description of the Amendment's effect and contains an unfunded mandate.  The court said in part:

This Court agrees with Plaintiffs that the Petition embraces a multitude of subjects that amount to logrolling. Subsection 1, alone, embraces the following subjects: prenatal care, childbirth, postpartum care, birth control, vasectomy, tubal ligation, abortion, abortion care, management of a miscarriage, and infertility care. Subsection 1 purportedly creates a “fundamental right to reproductive freedom,” but there is no limiting language in that section to circumscribe that right such that the section embraces a single and articulable subject....

The court found the description of the Amendment misleading because "it fails to mention that the law will bar the State from prosecuting, fining, or regulating any miscarriage or stillbirth"; it fails to mention that a medical provider can order a late term abortion to protect the pregnant person's health.; and it fails to explain that it affects equality and equal protection.

Finally, the court found that the proposed Amendment creates an unfunded mandate because a Panel or Board would need to be created to determine whether a healthcare provider acted within the standard of care.

Nevada Independent reports on the decision.

Inclusion of "Caste" In Antidiscrimination Policy Does Not Violate Establishment Clause

In Kumar v. Koester, (CD CA, Nov. 21, 2023, a California federal district court rejected an Establishment Clause challenge to the inclusion of "caste" in California State University's Discrimination, Harassment and Retaliation Policy. The Policy includes in its anti-discrimination ban a prohibition on discrimination based on "Race or Ethnicity (including color, caste, or ancestry)". Plaintiffs-- two Hindu professors-- contend that the Policy defines Hinduism as including a caste system and amounts to government disapproval of Hinduism.  In rejecting these contentions, the court said in part:

Plaintiffs argue that the CFA [California Faculty Association] and CSSA [California State Student Association] Resolutions demonstrate anti-Hindu sentiments. And because Defendant considered its stakeholders' input when amending the Policy, Defendant, in turn, expressed disapproval of Hinduism when it included the word "caste" in the Policy.

Plaintiffs' argument fails for two reasons. First, Plaintiffs have not demonstrated that CFA or CSSA speak for Defendant.... Plaintiffs do not offer any evidence that the Workgroup inappropriately considered the two Resolutions amongst the large amount of feedback it received from a wide array of CSU stakeholders....

Second, Plaintiffs' argument fails because the resolutions do not express anti-Hindu sentiments. To be sine, the Resolutions clearly denounce caste discrimination that occurs in South Asian societies and CFA's resolution explicitly references the presence of caste discrimination in "the Hindu religion."... But CFA's resolution does not link caste discrimination to Hinduism exclusively.... [Its] description of "caste" recognizes caste discrimination as a social ill that permeates South Asian culture and society....

Just as Plaintiffs fail to show that the Policy disapproves of Hinduism, they also fail to demonstrate that the Policy defines Hindu doctrines.

The court also dismissed plaintiffs' due process challenges for lack of standing. 

President Biden Issues 2023 Thanksgiving Day Proclamation

Yesterday President Biden issued a Proclamation (full text) designating today as a National Day of Thanksgiving. The Proclamation reads in part:

We are truly a good Nation because we are a good people — the First Lady and I see it every time we travel the country because we meet so many incredible people doing the most extraordinary things.  We have met with service members, veterans, and their families, who have selflessly served and sacrificed for our country.  We have witnessed the resolve of firefighters, police officers, and first responders, who risk their lives every day to protect us.  We have seen the best of our character in the doctors, nurses, scientists, public servants, union workers, and teachers, who ensure everyone is taken care of and no one is left behind.  We have seen all the possibilities this Nation holds in the mothers, fathers, and caregivers, who work hard to build a future worthy of their children’s greatest dreams, and in young people across the country, who are the most talented, engaged, and educated generation in history.

This Thanksgiving we are grateful for our Nation and the incredible soul of America.  May we all remember that we are the United States of America — there is nothing beyond our capacity if we do it together.

Appeals Court Upholds Denial of Unemployment Benefits To Health Care Worker Who Was Denied Religious Exemption From Vaccine Mandate

In Cyriaque v. Director- Ohio Department of Job and Family Services, (OH App., Nov. 22, 2023), an Ohio state appellate court upheld the denial of unemployment benefits to a clinical trainer at a community health center who was denied a religious exemption from a federal Covid vaccine mandate.  Her employment was terminated when she continued to refuse the vaccine.  In upholding the denial of benefits, the appeals court said in part:

It was, of course, the hearing officer’s province to assess the credibility of Cyriaque’s assertion that the exemption request was based upon her sincere religious opposition to the COVID-19 vaccines. In coming to this decisive determination, the hearing officer was free to believe all, some, or none of Cyriaque’s testimony. As noted, Cyriaque’s exemption statement submitted to Community Health did not assert that her religious opposition to the COVID-19 vaccines was based upon the use of aborted fetal cells in the development of the vaccines. In contrast, Cyriaque’s hearing testimony and other evidence exclusively focused upon the use of aborted fetal cells being used in the development of the vaccines as the basis for the requested exemption. This contrast between Cyriaque’s statement provided to Community Health and her hearing testimony provided support for the hearing officer’s finding that Cyriaque’s exemption request was not premised upon her sincere religious opposition to the COVID-19 vaccines. Given this, we cannot conclude the commission’s decision was unlawful because it violated Cyriaque’s rights under the Free Exercise Clause, that the decision was unreasonable, or that the decision was against the manifest weight of the evidence.