School Did Not Violate Title VII in Denying Religious Exemption to Covid Rules

In Russo v. Patchogue-Medford School District, (ED NY, Jan. 12, 2024), a New York federal district court held that a school district did not violate title VII's ban on religious discrimination in employment when it refused to accommodate a school psychologist's religious objection to a state mandate to either test weekly for Covid or show proof of vaccination.  Plaintiff considered both of these alternatives to be medical interventions that would violate her faith in God's ability to protect her and keep her healthy.  She instead sought as an accommodation either periodically completing a health questionnaire or working remotely. Rejecting those alternatives, the school placed her on unpaid leave. The court said in part:

The state’s test-or-vaccination requirement was a neutral law of general applicability that only incidentally affected employees with religious objections and did not “target[] religious conduct for distinctive treatment.” ... The requirement is, therefore, constitutionally permissible if it survives rational basis review.... The state’s requirement clearly satisfies this standard....

Plaintiff’s claim that she was unlawfully denied a religious accommodation also fails....

A proposed accommodation becomes an undue hardship for an employer if it would cause the employer to violate the law....

Defendant’s rejection of Plaintiff’s proposed accommodation of working remotely also did not violate Title VII.... [H]er proposal that she be permitted to work remotely going forward included a request that Defendant cut back on her job responsibilities to accommodate remote work.... Plaintiff, therefore, implicitly conceded that her proposed accommodation would “involve the elimination of an essential function of [her] job,” thereby rendering the proposal unreasonable....

The court also concluded that plaintiff's employer did not violate the Genetic Information Nondisclosure Act.

State Department Issues Updated List of Religious Freedom Violators; USCIRF Reacts

On January 4, the State Department, pursuant to the International Religious Freedom Act, released its annual list of countries and entities that have engaged in or tolerated serious violations of religious freedom.  Secretary of State Blinken's announcement (full text) said in part:

I have designated Burma, the People’s Republic of China, Cuba, the DPRK, Eritrea, Iran, Nicaragua, Pakistan, Russia, Saudi Arabia, Tajikistan, and Turkmenistan as Countries of Particular Concern for having engaged in or tolerated particularly severe violations of religious freedom.  In addition, I have designated Algeria, Azerbaijan, the Central African Republic, Comoros, and Vietnam as Special Watch List countries for engaging in or tolerating severe violations of religious freedom.  Finally, I have designated al-Shabab, Boko Haram, Hayat Tahrir al-Sham, the Houthis, ISIS-Sahel, ISIS-West Africa, al-Qa’ida affiliate Jamaat Nasr al-Islam wal-Muslimin, and the Taliban as Entities of Particular Concern.

Reacting to the State Department's designations, the U.S. Commission on International Religious Freedom issued a press release stating in part:

The United States Commission on International Religious Freedom (USCIRF) calls for a congressional hearing after reiterating its extreme disappointment that the U.S. Department of State yet again failed to designate Nigeria and India as Countries of Particular Concern (CPC), despite both countries repeatedly meeting the legal standard. Despite this disappointment, USCIRF welcomed the State Department’s decision to include Azerbaijan on its Special Watch List (SWL) for committing or tolerating severe violations of religious freedom pursuant to the International Religious Freedom Act (IRFA).

Recent Articles of Interest

From SSRN:

• Marc Spindelman, Dobbs' Sex Equality Troubles, (William & Mary Bill of Rights Journal, Vol. 32, No. 1, 2023).
• Stephanie H. Barclay, Strict Scrutiny, Religious Liberty, and the Common Good, (Harvard Journal of Law and Public Policy, Vol. 46, No. 937, 2023).
• Ori Aronson & Shahar Lifshitz, A Jewish and Democratic State: Intra-Jewish Perspectives, (forthcoming, Oxford Handbook of the Israeli Constitution (Aharon Barak, Barak Medina, & Yaniv Roznai eds., 2024)).
• Josh Blackman, Reviewing The Three Trump Appointees: Ex Ante and Ex Post, (1 Texas A&M Journal of Law and Civil Governance, Forthcoming).

Court Supervision of Church Election Invalidated by Mississippi Supreme Court

In Melton v. Union Hill Missionary Baptist Church, (MS Sup. Ct., Jan. 11, 2024), the Mississippi Supreme Court reversed and vacated a decision of a state Chancery Court in a dispute over whether a church had dismissed its pastor.  After an initial vote to oust the pastor, the pastor continued to preach at the church.  The church filed suit and the chancellor ordered the congregation to hold a second vote at a church meeting at which the chancellor would preside. That meeting voted to retain the pastor. Invalidating the chancellor's order to hold a new meeting, the Supreme Court said in part:

The chancellor’s self appointment to oversee a congregational election outside the courthouse and inside a house of worship is far removed from the judicial function and treads heavily upon Mississippi’s Constitution and the Establishment Clause. Thus, the chancellor’s actions, though undoubtedly well intended, amounted to a constitutional violation, resulting in a blending of church and state. This unusual arrangement was the antithesis of the constitutional doctrine that historically has demanded separation of church and state....

Because the ecclesiastical abstention doctrine applies, this Court reverses and vacates the orders of the Madison County Chancery Court.

Students Sue Harvard for Antisemitism Violating Title VI

Suit was filed this week in a Massachusetts federal district court by Harvard University students against the University charging that the University is in violation of Title VI of the 1964 Civil Rights Act by failing to protect Jewish students from "rampant anti-Jewish hatred and harassment." It also alleges breach of contract claims. The 77-page complaint (full text) in Kestenbaum v. President and Fellows of Harvard College, (D MA, filed 1/10/2024) says in part:

Harvard’s antisemitism cancer—as a past Harvard president termed it—manifests itself in a double standard invidious to Jews. Harvard selectively enforces its policies to avoid protecting Jewish students from harassment, hires professors who support anti-Jewish violence and spread antisemitic propaganda, and ignores Jewish students’ pleas for protection. Those professors teach and advocate through a binary oppressor-oppressed lens, through which Jews, one of history’s most persecuted peoples, are typically designated “oppressor,” and therefore unworthy of support or sympathy. Harvard permits students and faculty to advocate, without consequence, the murder of Jews and the destruction of Israel, the only Jewish country in the world. Meanwhile, Harvard requires students to take a training class that warns that they will be disciplined if they engage in sizeism, fatphobia, racism, transphobia, or other disfavored behavior....

Harvard’s purported excuse for refusing to take disciplinary measures and sitting by idly as the Jew-bashing on campus escalates—that antisemitic harassment is protected by free expression principles—confirms its antisemitic double standard. Considering that Harvard aggressively enforces policies to address bias against other minorities and regularly disciplines students and faculty members who harass other groups or espouse viewpoints Harvard deems inappropriate, its refusal to discipline students attacking, harassing, or intimidating Jews is glaring. Based on its track record, it is inconceivable that Harvard would allow any group other than Jews to be targeted for similar abuse or that it would permit, without response, students and professors to call for the annihilation of any country other than Israel....

Harvard must now be compelled to implement institutional, far-reaching, and concrete remedial measures, including, among other things: (i) disciplinary measures, including the termination of, deans, administrators, professors, and other employees responsible for antisemitic discrimination and abuse, whether because they engage in it or permit it; (ii) disciplinary measures, including suspension or expulsion, against students who engage in such conduct; (iii) declining and returning donations, whether from foreign countries or elsewhere, implicitly or explicitly conditioned on the hiring or promotion of professors who espouse antisemitism or the inclusion of antisemitic coursework or curricula; (iv) adding required antisemitism training for Harvard community members; and (v) payment of appropriate damages for lost or diminished educational opportunities, among other things.

Harvard Crimson reports on the lawsuit.

State Regulation of Catholic Childcare Program Upheld

In South Hills Catholic Academy v. Department of Human Services, (PA Commonwealth Ct., Jan. 11, 2024), a Pennsylvania appellate court rejected a Catholic school's challenges to regulatory requirements imposed on it.  The state asserted that the school's program allowing parents to drop students off 45 minutes early and pick them up 90 minutes late constitutes an uncertified child care center. The school contended that the Department's regulations violate the Free Exercise and Establishment Clauses of the 1st Amendment and the freedom of conscience and religious practices clause of the Pennsylvania constitution. The court said in part:

Private School believes the Department’s regulations impermissibly infringe upon a religious school’s ability to hire staff “based upon their religious beliefs and their ability to transmit those beliefs to the individuals they instruct.”...

The Department’s regulations continue to require only “compliance” with existing civil rights statutes and regulation, from which religious schools are exempt. Therefore, we reject Private School’s contention that reference in the regulations to various civil rights laws infringes upon a religious school’s employment decisions.

With regard to Private School’s other asserted concerns, ..., Private School “has not explained how the regulations at issue interfere with the facility’s ability to communicate Church teachings,” and has “failed to identify any actual or imminent infringement upon [its] right.”... Accordingly, Private School’s “constitutional claims necessarily fail.”

11th Circuit: Transit Agency's Policy Barring Religious Ads Violates Free Speech Protections

In Young Israel of Tampa, Inc. v. Hillsborough Area Regional Transit Authority, (11th Cir., Jan. 10, 2024), the U.S. 11th Circuit Court of Appeals held unconstitutional a public transit agency's policy on the sale of advertising space on its vehicles and property.  While selling advertising space, the agency prohibited ads that "primarily promote a religious faith or religious organization." Applying this policy, the transit agency rejected an ad from plaintiff promoting a "Chanukah on Ice" event. The court concluded that the policy violates plaintiff's free speech rights, saying in part:

Though the analysis would not change one way or another, we’ll assume, without deciding, that the HART vehicles and property at issue here are nonpublic forums as opposed to limited public forums. Even so, when the government restricts speech in nonpublic forums, it “must avoid the haphazard and arbitrary enforcement of speech restrictions in order for them to be upheld as reasonable.”...

Given the inherent ambiguity of the word “religious,” the uncertainty and potential breadth of the term “primarily promote,” and the lack of any definitions, we agree with the district court that the policy fails to provide any objective or workable standards. The policy therefore fails under [the U.S. Supreme Court's decision in Minnesota Voters Alliance v.] Mansky....

Judge Newsom filed a concurring opinion, saying in part:

I'm not sure that any religious-speech restriction could survive a reasonableness inquiry under Mansky—because I’m not sure that any policymaker could define or identify “religious” speech using “objective, workable standards.”

Judge Grimberg filed a concurring opinion, saying in part:

By constructing a policy that is so clearly and completely incapable of reasonable application, HART has successfully evaded a ruling on the viewpoint-versus-subject-matter dispute that is at the heart of this case. And that evaded ruling, in my view, has long been settled by the Supreme Court’s “trilogy” of cases....

Where the same advertisement, with the same content is welcomed when references to religion are removed and replaced with secular ones, I see no way around concluding ... that the public transportation system engaged in unconstitutional viewpoint discrimination.

See prior related posting.

Inmate's Speech and Religion Challenges to His Execution Method Are Not Dismissed, But Execution Not Enjoined

In Smith v. Hamm, (MD AL, Jan. 10, 2024), plaintiff, who is scheduled for execution by nitrogen hypoxia on January 25, challenges the legality of his execution on several grounds.  Among these are his claims that his free speech rights as well as his free exercise rights are violated because masking him will interfere with his making an audible statement and praying audibly during his execution.  The court concluded that plaintiff had made plausible claims that the execution protocol violates his First Amendment free speech rights and his religious free exercise rights under RLUIPA, the First Amendment and the Alabama Religious Freedom Act (as well as his 8th Amendment rights).  Therefore, it denied defendants' motion to dismiss those claims.  The court went on, however, to conclude that plaintiff had not shown a substantial likelihood of success on the merits of those claims. Therefore, the court refused to issue a preliminary injunction to bar execution of plaintiff. At issue in the case is the state's second attempt to execute plaintiff. A previous attempt to execute him by lethal injection failed when after 90 minutes of trying, authorities were unable to access his veins.

9 Arrested In New York During Conflict Between Chabad Factions Over Secret Tunnel

In Brooklyn on Monday, nine people were arrested on charges of criminal mischief and reckless endangerment and three others were issued summonses for disorderly conduct after factional chaos broke out at Chabad's headquarters, known as 770.  As described by NBC New York:

A historic Brooklyn synagogue that serves as the center of an influential Hasidic Jewish movement was trashed this week during an unusual community dispute that began with the discovery of a secret underground tunnel and ended in a brawl between worshippers and police.

The conflict erupted in the global headquarters of the Chabad-Lubavitch movement in Crown Heights, a deeply revered Jewish site that each year receives thousands of visitors, including international students and religious leaders....

But on Tuesday, the synagogue remained closed off by police barricades as New York City building safety agents inspected whether a tunnel dug without official permission may have caused structural damage to the famed property.

Officials and locals said young men in the community recently built the passage to the sanctuary in secret. When the group’s leaders tried to seal it off Monday, they staged a protest that turned violent as police moved in to make arrests....

Those who supported the tunnel, meanwhile, said they were carrying out an “expansion” plan long envisioned by the former head of the Chabad movement, Rebbe Menachem Mendel Schneerson...

The Forward has additional background.

British Columbia Court Says Jehovah's Witness Elders Must Submit Confidential Documents to Privacy Commissioner

In Vabuolas v. British Columbia (Information and Privacy Commissioner), (BC Sup. Ct., Jan. 8, 2024), the British Columbia Supreme Court upheld an order issued by the B.C. Office of the Information and Privacy Commissioner over the objections raised by two elders of the Jehovah's Witness congregations. Petitioners claimed that the Order violated their rights under Canada's Charter of Rights and Freedoms. As the court explained:

Two former members of the Jehovah's Witnesses each sought disclosure from their former congregations of all records that include their personal information. The elders of the congregations refused, arguing that disclosure of confidential religious notes would be contrary to their religious beliefs....

[Under B.C. Personal Information Protection Act] Where an individual has made an access request to an organization for a copy of personal information about the individual held by the organization, and the individual is dissatisfied with the organization’s response to the access request, they may ask the Commissioner to conduct a review. This is what happened in this case....

Of particular concern to the petitioners is that the groups of elders who meet to determine membership must be able to discuss matters in confidence and without fear of having their confidential discussions disclosed. The petitioners are concerned that if the elders’ confidential communications are disclosed, they may be further disseminated for the purposes of mocking either the petitioners or elders, causing unnecessary embarrassment....

I am not satisfied that disclosure of the Disputed Records by the congregational elders to the Commissioner for review for the purpose of determining whether disclosure to the Applicants will be required would preclude the elders from continuing to follow their religious practices when weighing the rights of individuals to control over their personal information on the one hand and the religious freedom of the elders on the other. The Production Order represents a balancing of the competing interests, and I conclude that the infringement on the congregational elders’ religious freedoms that results from the Production Order is proportionate....

I conclude that while ss. 23(1)(a) and 38(1)(b) of PIPA infringe the petitioners’ rights under s. 2(a) of the Charter, those rights are limited in a manner that is reasonably justified in a free and democratic society.

CBC News reports on the decision.

Church May Move Ahead with RFRA Challenge to Limits on Its Use of Ayahuasca

In Church of the Celestial Heart v. Garland, (ED CA, Jan. 9, 2023), a California federal magistrate judge refused to dismiss a suit under RFRA challenging the application of the Controlled Substances Act to use of sacramental tea by a church whose beliefs are based on the Santo Daime religion. The court concluded that plaintiffs had adequately alleged that application of the CSA would substantially burden a sincere religious exercise, saying in part:

Similar to part of Defendants’ arguments above relating to standing, and additionally the alternative request for stay below, Defendants argue under 12(b)(6) that the complaint fails to state a claim because, fundamentally, all of Plaintiffs’ grievances stem from their failure to obtain, much less apply for, a registration through DEA’s exemption process. Defendants argue that to prevail on the RFRA claim, Plaintiffs must demonstrate how DEA’s exemption process substantially burdens their allegedly sincere exercise of religion, and Plaintiffs have not attempted to plead such burden.

The Court rejects this argument....

The court also refused to stay proceedings and require the Church to apply for a religious exemption from the Drug Enforcement Administration before reaching a decision on plaintiff's claims. 

HHS Adopts Rules Implementing Conscience Protections in Federal Law

The Department of Health and Human Services has made available a 100-page Release (full text) titled Safeguarding the Rights of Conscience as Protected by Federal Statutes that will be published in the Federal Register on January 11. The Release adopts the final version of amendments to rules initially adopted in 2011 and amended in 2019. though the 2019 version never took effect because of litigation. (See prior posting.) The new Rules seek to implement conscience protections in various statutes that bar recipients of federal funds from requiring health care personnel and organizations to participate in conduct that violates their religious or moral beliefs.  The new Rules provide in part:

OCR considers the posting of a notice consistent with this part as a best practice towards achieving compliance with and educating the public about the Federal health care conscience protection statutes, and encourages all entities subject to the Federal health care conscience protection statutes to post the model notice provided in Appendix A to this part. OCR will consider posting a notice as a factor in any investigation or compliance review under this rule.

(See prior related posting.) 

In a Release (full text) criticizing the new Rule, Alliance Defending Freedom said in part:

In its rule, HHS suggests it will continue its misguided use of the Emergency Medical Treatment and Labor Act to require doctors to perform abortions even though that federal law has no abortion requirement, and conscience laws provide no exception allowing forced performance of abortion.

In a Release (full text) commending the Biden Administration for the Rule change, the ACLU said in part:

The Biden administration announced it would partially repeal a dangerous and unnecessary Trump-era rule, which numerous courts had declared unlawful, that would have allowed health care institutions and providers to deny patients treatment and information based on personal religious or moral beliefs.

Pope Calls for Universal Ban on Surrogate Motherhood

In remarks (full text) yesterday at his Audience with the Diplomatic Corps Accredited to the Holy See for the Presentation of Greetings for the New Year, Pope Francis addressed a wide range of issues. Among those making news was his call for a ban on surrogate motherhood.  The Pope said in part:

The path to peace calls for respect for life, for every human life, starting with the life of the unborn child in the mother’s womb, which cannot be suppressed or turned into an object of trafficking. In this regard, I deem deplorable the practice of so-called surrogate motherhood, which represents a grave violation of the dignity of the woman and the child, based on the exploitation of situations of the mother’s material needs. A child is always a gift and never the basis of a commercial contract. Consequently, I express my hope for an effort by the international community to prohibit this practice universally.

AP reports on the Pope's remarks. The Pope's call echoes the position taken in 1987 by Pope John Paul II in Instruction on Respect for Human Life in Its Origin and on the Dignity of Procreation: Replies to Certain Questions of the Day (full text).

Art Institute School Sued for Antisemitic Discrimination and Hostility

Three weeks ago, suit was filed in an Illinois federal district court against the School of the Art Institute of Chicago by a Jewish Israeli student claiming a long-running pattern of discrimination and hostility at the school toward Jews and Israelis. The complaint (full text) in Canel v. School of the Art Institute of Chicago, (ND IL, filed 12/22/2-23), alleges discrimination against plaintiff in the admissions process and increasing harassment by faculty and students since the October 7 Hamas terror attack on Israel. Also named as a defendant was one Art Therapy faculty member who has taken a leading role in facilitating anti-Israel actions aimed at plaintiff. The complaint alleges violation of Title VI of the 1964 Civil Rights Act the Illinois Human Rights Act and the Illinois Consumer Fraud and Deceptive Business Practices Act, as well as breach of contract and intentional infliction of emotional distress. Jewish News Service reports on the lawsuit.

Ohio Adopting Administrative Rules on Gender Transition Treatments

 As previously reported, last month Ohio Governor Mike DeWine vetoed a bill which prohibited physicians from performing gender reassignment surgery or prescribing cross-sex hormones or puberty blockers to minors, and prohibited transgender women from participating on women's athletic teams in schools that participate in interscholastic athletics and in public and private colleges. However, in his veto message he urged the Ohio Department of Health to adopt rules to carry out part of what the vetoed legislation provided-- a ban on gender transition surgeries for minors and rules to prevent pop-up clinics for treating gender dysphoria. On January 5, the Department of Health published a draft of rules (full text) to carry out the Governor's proposal.  The Health Department's Release describes the rules:

The emergency rules filed today:

• Prohibit health care facilities, including ambulatory surgical facilities, and hospitals from performing gender surgeries on minors.

The draft rules proposed for public comment:

• Obligate the Department of Health to report deidentified data to the General Assembly and the public every six months.
• Set forth quality standards for those hospitals and ambulatory surgical facilities that wish to treat gender-related conditions.

On January 5, Governor DeWine signed an Executive Order (full text) allowing the Department of Health to adopt on an emergency basis without the usual comment procedures its proposed rules banning gender transition surgeries on minors and setting quality standards for facilities that treat gender dysphoria.  Under Ohio law, the emergency rules will be effective for 120 days. (It should be noted that there is a slight discrepancy in the rule numbers set out in the Health Department's Release and those set forth in the Governor's Executive Order.)

Court Limits Discussion of Religion in Trial for Blocking Abortion Clinic Entrance

In United States v. Gallagher, (MD TN, Jan. 5, 2024), a Tennessee federal district court ruled on the extent to which defendants can refer to their religious activities or beliefs and to the First Amendment in their upcoming criminal trial for violation of the Free Access to Clinic Entrances Act. Defendants are charged criminally with barricading the entrance to a Mt. Juliet, Tennessee abortion clinic in a so-called "rescue" operation. The court said in part:

It does not appear to be disputed that these defendants’ actions were motivated, at least in part, by their religious objections to the intentional termination of pregnancies. The Government argues, however, that evidence of those motivations would be “totally extraneous” to the “nature of the” charged offenses and should, therefore, be excluded.... The Government’s argument, however, is in significant tension with the FACE Act itself, which affirmatively places the defendants’ states of mind at issue by criminalizing only “intentional” acts taken “because [the victim] is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.” 18 U.S.C. § 248(a)(1). The defendants’ subjective motivations are, therefore, an unavoidable aspect of this case, and it is not clear to the court that those motivations can be accurately represented without at least some incidental reference to the details of their beliefs—which happen, in this instance, to be based in religion....

The court has already ruled that, as a matter of well-settled law, religious motivations are not a defense to a violation of either the FACE Act or the conspiracy statute.... The court, however, will not go so far as to wholly forbid the discussion of the defendants’ religious beliefs for the limited purpose of establishing or refuting intent or purpose.... 

... The defendants cannot turn an ounce of relevance into a gallon of irrelevant political messaging. The court, however, will not bar discussion of the defendants’ views altogether.

... When the defendants prayed or discussed their religious views, those specific actions were protected by the First Amendment. But if, in the next breath, they turned to discussing a plan to unlawfully obstruct the entrance of a clinic, then that conspiracy was just as illegal as it would have been if it had been the sole topic of conversation. Similarly, if they engaged in activities that would, in isolation, be protected by the First Amendment, but they did so while also violating the FACE Act through physical obstruction or intimidation, then the non-criminal components of their actions are no shield against prosecution for the criminal ones. Any argument to the contrary would be improper and will be barred.

The court also ruled that defendants may not present evidence or arguments at trial on various other matters including jury nullification, selective prosecution, potential sentences and good character. (See prior related posting.)

Recent Articles and Books of Interest

From SSRN:

• Ira C. Lupu, The Centennial of Meyer and Pierce: Parents’ Rights, Gender-Affirming Care and Issues in Education, Vol. 24, Journal of Contemporary Legal Issues (Univ. of San Diego) (forthcoming 2024).
• Lama Abu-Odeh, Gaza Shoah, Georgetown University Law Center Research Paper No. 2568 (2024).
• Miranda Perry Fleischer, The Morality of Charitable Bequests, (Inheritance and the Right to Bequeath: Legal and Philosophical Perspectives, ed. by Daniel Halliday, Thomas Gutmann, and Hans-Christoph Schmidt am Busch, Routledge (2022)).

Recent and Forthcoming Books:

• Norman Doe & Aetios Nikiforos, Legal Thought and Eastern Orthodox Christianity: The Addresses of Ecumenical Patriarch Bartholomew I, (Routledge, Nov. 3, 2023).
• Robert Wuthnow, Faith Communities and the Fight For Racial Justice, (Princeton University Press, Nov. 14, 2023).
• Bruce Hoffman & Jacob Ware, God, Guns and Sedition, (Columbia University Press, Jan. 2024).
• Mun'im Sirry, Youth, Education, and Islamic Radicalism: Religious Intolerance in Contemporary Indonesia, (University of Notre Dame Press, March 2024).
• Tom Navon, Radical Assimilation in the Face of the Holocaust-- Otto Heller 1897-1945, (SUNY Press, January 2024).

Supreme Court Grants Review of EMTALA's Impact on State Abortion Restrictions

Yesterday, the U.S. Supreme Court agreed to review an Idaho federal district court decision (see prior posting) that preliminarily enjoined the state of Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act. The Supreme Court Order (full text) comes in the companion cases of Moyle v. United States, (Docket No. 23-726) and Idaho v. United States, (Docket No. 23-727) (certiorari granted, 1/5/2024). In September 2023, a 3-judge panel of the U.S. 9th Circuit Court of Appeals stayed the district court's injunction pending appeal. (See prior posting.)  However, the full 9th Circuit in an en banc Order vacated the panel's opinion that stayed the injunction and granted en banc review. In yesterday's Order, the Supreme Court allowed plaintiffs to bypass review by the 9th Circuit and present the case to the Supreme Court.  The Supreme Court also again stayed the district court's preliminary injunction that limited enforcement of Idaho's abortion ban. It granted review on the Question Presented in Idaho's Application:

Whether EMTALA preempts state laws that protect human life and prohibit abortions, like Idaho's Defense of Life Act.

The Court set arguments for the April 2024 argument session. Here is the SCOTUSblog case page that will link to pleadings in the Supreme Court.

AP reports on the Supreme Court's decision. Yesterday President Biden issued a Statement (full text) criticizing the Supreme Court's action, saying in part:

Today’s Supreme Court order allows Idaho’s extreme abortion ban to go back into effect and denies women critical emergency abortion care required by federal law. The overturning of Roe v. Wade has enabled Republican elected officials to pursue dangerous abortion bans like this one that continue to jeopardize women’s health, force them to travel out of state for care, and make it harder for doctors to provide care, including in an emergency. These bans are also forcing doctors to leave Idaho and other states because of laws that interfere with their ability to care for their patients. This should never happen in America.

Constitutional Challenge to RLUIPA Dismissed on Sovereign Immunity Grounds

In Coritsidis v. Khal Bnei Torah of Mount Ivy, (SD NY, Jan. 3, 2024), a New York federal district court dismissed the portion of the lawsuit naming the United States as defendant. Plaintiffs sought a declaratory judgment that the Religious Land Use and Institutionalized Persons Act discriminates in favor of religion in violation of the Establishment Clause. The court did not get to the merits of the constitutional argument, saying in part:

Because Plaintiffs fail to meet their burden to establish an applicable waiver or exception to the doctrine of sovereign immunity, the Court dismisses all claims against the United States without prejudice for lack of subject matter jurisdiction under Rule 12(b)(1).

The court went on to refuse to exert supplemental jurisdiction over state law nuisance claims against defendant synagogue. Rcbizjournal reports on the decision.

Ministerial Exception Does Not Bar Whistleblower Suit by Liberty University Dean

 In Markley v. Liberty University, Inc., (VA Cir. Ct., Dec. 8, 2023), a Virginia state trial court held that the ministerial exception doctrine does not prevent a former Administrative Dean for Acedemic Operations from suing Liberty University, a Christian University, for unlawfully terminating his employment because he engaged in whistleblower activities. According to the court:

Markley, who holds a Bachelor of Science degree in Speech Communications, a Master of Divinity degree in Biblical Studies, a Master of Arts degree in Biblical Exegesis, and a Doctor of Philosophy degree in New Testament and Christian Origins, was employed by Liberty University from 2008 to 2022. During his employment, he held various positions. Though Markley never held a position that carried a religious title, such as minister, pastor, or deacon, Dr. Scott Hicks, Liberty University's Provost and Chief Academic Officer, testified that Liberty University considers all of its faculty to be ministers in the sense that they are ministering and spreading the university's religious doctrine to its students.

From 2008 until 2017, Markley taught Biblical Studies courses....

In 2018, Markley transitioned from being a full-time professor to being a full-time administrator.....

While Markley's administrative job carried no teaching responsibilities or requirements, he nonetheless did continue to teach online courses....

After considering Markley's job description and ...after taking all relevant circumstances into account, the Court finds that Markley's position as Administrative Dean for Academic Operations did not implicate the fundamental purpose of the ministerial exception. None of the essential functions or responsibilities of that administrative position involved Markley leading a religious organization, conducting worship services or important religious ceremonies or rituals, or serving as a messenger or teacher of the faith.... For purposes of the ministerial exception, the Court finds that Markley, as Administrative Dean for Academic Operations, was not a "minister."

The complaint in the case (full text) provides details of Markley's whistleblowing.