Presumption of Discrimination in Virginia Fair housing Law Held Unconstitutional

 In Carter v. Virginia Real Estate Board, (VA Cir. Ct., Jan. 24, 2024), a Virginia state trial court held unconstitutional a portion of Virginia's Fair Housing Law (§36-96.3) that provides:

The use of words or symbols associated with a particular religion, national origin, sex, or race shall be prima facie evidence of an illegal preference under this chapter that shall not be overcome by a general disclaimer. However, reference alone to places of worship, including churches, synagogues, temples, or mosques, in any such notice, statement, or advertisement shall not be prima facie evidence of an illegal preference....

In the case, a realtor's e-mails contained a signature line reading "For Faith and Freedom, Jesus Loves You, and with God all things are Possible." Her e-mails also contained a personal statement reading "For God so loved the world that He gave his only begotten Son, that whosoever believeth in Him should not perish but have everlasting life. John 3:16". The Virginia Real Estate Board began an investigation of the realtor based on these religious statements. The court invalidated this portion of the Fair Housing Law, saying in part:

[This section of the] Virginia Fair Housing Law ... infringes the natural right of individuals to express their identity and, as such, stands in sharp contrast to the freedom of Virginians and Americans to express their identity that lie at the heart of the First Amendment ... and the Virginia Statute of Religious Freedom. Moreover, the statute restricts individual expression with a sweeping generalization so broad that any expression of individual identity related to religion, national origin, sex, or race is deemed tantamount to a desire to engage in unlawful discrimination.... Virginia's presumption of animus in the Fair Housing Law inequitably and overbroadly inhibits those rights, and as such, it fails to give the breathing space that First Amendment freedoms require....

ACLJ issued a press release announcing the decision.

County Revises Policy on Religious Head Coverings in Booking Photos in Settlement of Suit by Muslim Woman

In a Settlement Agreement (full text) in Johnston v. Rutherford County, Tennessee, (MD TN, 1/18/2024), the county has agreed to pay $100,000 in damages to a Muslim woman who authorities required to remove her hijab for a booking photo. Sophia Johnston was stopped by police for having a taillight out and was arrested when it turned out she had a 6-year-old outstanding warrant for failing to appear on charges of driving with a suspended license. (Background.) In the Settlement Agreement, the county also agreed to delete from its records photos and video of Johnston without her hijab. Johnston will have a booking photo wearing her hijab retaken. Under the Agreement, the county has also adopted a new policy on Religious Accommodations for Head Coverings During Booking Process (full text) and has updated its Detention Center Protocols (full text) to allow booking photos to be taken with religious head coverings so long as the head covering is first removed for a search.  WZTV News reports on the settlement.

11th Circuit Rejects RLUIPA Challenge to Novel Execution Method; Supreme Court Denies Review

In Smith v. Commissioner, Alabama Department of Corrections, (11th Cir., Jan. 24, 2024), the U.S. 11th Circuit Court of Appeals in a 2-1 decision refused to stop the January 25 execution of death row inmate Kenneth Smith.  The U.S. Supreme Court also refused to stay Smith's execution and denied certiorari in the case, initially in an Order dated January 24 (Smith v. Alabama, (Docket No. 23-6517)), and subsequently in an order dated January 25, to which Justice Sotomayor filed a dissent, as did Justice Kagan joined by Justice Jackson. (Smith v. Hamm, (Docket No. 23-6562)). Smith was executed in the evening of January 25. The case has garnered substantial news coverage because Alabama used a novel execution method-- nitrogen gas-- after a first attempt at execution by lethal injection failed. In addition to 8th Amendment claims, Smith, who wished to engage in audible prayer as he was being executed, raised free exercise claims under RLUIPA (as well as other claims).  The 11th Circuit affirmed the district court's refusal to issue a preliminary injunction, saying in part:

Here, Smith argues that the Protocol substantially burdens his ability to audibly pray during the course of his execution because he faces an untenable choice—audibly pray or face a substantial risk of superadded pain or prolonged death due to a dislodged mask. It is not speculative that Smith would engage in religious exercise because he both audibly prayed and sang the contemporary hymn “I Am Not Alone” during his failed execution. However, we cannot say that the district court clearly erred when it found that any risk of the mask gaping or dislodging is speculative based upon the same factual findings regarding the mask’s design, fit, and nitrogen volumes above. Without such findings, we cannot conclude that Smith will be substantially burdened in his ability to audibly pray during the course of the execution. Based upon this standard of review, we are bound to accept the district court’s findings as to Smith’s claim and affirm the district court on its RLUIPA holding.

Judge Wilson filed a concurring opinion and Judge Pryor filed a dissent on the 8th Amendment issue.

Ohio Legislature Overrides Governor's Veto of Bill on Transgender Health Care and Sports Participation

The Ohio Senate yesterday voted 24-8 to override Governor Mike DeWine's veto of HB 68, the Saving Adolescents from Experimentation (SAFE) Act. The Ohio House of Representatives two weeks ago voted 65-28 to override. The bill, which will now become law, bars physicians from performing gender reassignment surgery or prescribing cross-sex hormones or puberty blockers to minors. It also prohibits transgender women from participating on women's athletic teams in schools that participate in interscholastic athletics and in public and private colleges. (See prior posting.) WCMH News reports on the Senate's vote and says that a court challenge to the legislation is expected.

Arkansas AG Certifies Abortion Amendment Proposal; Signature Collection May Begin

After rejecting two prior proposals as being unclear or misleading (1 , 2 ) on Tuesday, Arkansas Attorney General Tim Griffin certified the popular name and ballot title for a proposed constitutional amendment that, if adopted by voters, will liberalize abortion rules in Arkansas.  The ballot proposal describes the changes as follows in part:

... [T]his amendment changes Arkansas law by amending the Arkansas Constitution to provide that the government of the State of Arkansas, its officers, or its political subdivisions shall not prohibit, penalize, delay, or restrict abortion services (1) in cases of rape, (2) in cases of incest, (3) in the event of a fatal fetal anomaly, or (4) when, in a physician’s good-faith medical judgment, abortion services are needed to protect a pregnant female’s life or to protect a pregnant female from a physical disorder, physical illness, or physical injury; to provide that the government of the State of Arkansas, its officers, or its political subdivisions shall not prohibit, penalize, delay, or restrict abortion services within 18 weeks of fertilization....

As reported by the Arkansas Democrat Gazette, the Attorney General's approval allows proponents to begin to collect 90,704 signatures needed to get the proposal on the November 2024 ballot.

White House Fact Sheet Focuses on Administration's Protection of Access to Reproductive Health Care

On Monday, which was the 51st anniversary of the Supreme Court's decision in Roe v. Wade, the White House issued a Fact Sheet (full text) announcing new actions to protect access to reproductive health care. According to the Whtie House, these include:

The Departments of the Treasury, Labor, and Health and Human Services (HHS) are issuing new guidance to clarify standards and support expanded coverage of a broader range of FDA-approved contraceptives at no cost under the Affordable Care Act....

The Secretary of HHS is issuing a letter to private health insurers, state Medicaid and Children’s Health Insurance Programs, and Medicare plans about their obligations to cover contraception for those they serve....

... The Administration is committed to helping ensure all patients, including women who are experiencing pregnancy loss and other pregnancy-related emergencies, have access to emergency medical care required under the Emergency Medical Treatment and Labor Act (EMTALA). The Administration has long taken the position that the required emergency care can, in some circumstances, include abortion care. The Department of Justice (DOJ) is defending that interpretation of the law before the Supreme Court, which is expected to rule by June. 

To increase awareness of EMTALA and improve the procedures for ensuring that patients facing all types of medical emergencies receive the care to which they are entitled, HHS is announcing today a comprehensive plan to educate all patients about their rights and to help ensure hospitals meet their obligations under federal law....

The Fact Sheet went on to outline at length steps the Administration has taken to protect access to abortion, including medication abortion, and to contraception. The Fact Sheet comes as the White House is convening the fourth meeting of its Task Force on Reproductive Health Care.

Nurse Sues Clinic for Refusing to Accommodate Her Objection to Prescribing Contraceptives

A religious discrimination lawsuit was filed last week in a Florida federal district court by a nurse-practitioner who was fired from her position at a Florida CVS MinuteClinic. The complaint (full text) in  Kristofersdottir v. CVS Health Corp., (SD FL, filed 1/18/2024), alleges that CVS revoked all religious accommodations that allowed employees to refuse to prescribe contraceptives, including the accommodation it had given to plaintiff for more than 7 years.  Plaintiff, a Roman Catholic, objected to prescribing hormonal contraceptives for patients. According to the complaint:

CVS corporate culture changed around 2021. Instead of protecting religious freedom, CVS began to treat religious practice as a source of "privilege."...

CVS never discussed possible accommodation options with Ms. Kristofersdottir even though CVS had numerous ways to provide a reasonable accommodation without undue hardship on the business.

When Florida subsequently passed a law protecting conscience-based objections by employees, CVS offered plaintiff her job back, but she declined the offer. The complaint alleges violations of Title VII and the Florida Civil Rights Act.

First Liberty issued a press release announcing the filing of the lawsuit.

Catholic Bishops Issue Report on Religious Liberty In the United States

Last week, the Committee on Religious Liberty of the U.S. Conference of Catholic Bishops issued its Annual Report on The State of Religious Liberty in the United States (full text) (executive summary). The 48-page Report reviews developments at the national level in Congress, the Supreme Court and the Executive Branch.  It goes on to examine national trends in politics, culture and law. It forecasts important issues for 2024 and identifies what its authors see as the top 5 threats to religious liberty in the coming year.

EEOC Religious Discrimination Suit Against Hospital That Refused Vaccine Exemption Settled For $50,000

The EEOC announced yesterday that Trinity Health Grand Rapids, a Michigan hospital, has agreed to pay $50,000 in damages to settle a Title VII religious discrimination lawsuit brought on behalf of a job applicant whose job offer was rescinded when the applicant applied for a religious exemption to the requirement that employees receive a flu shot. The applicant had received a conditional offer for a position as business office coordinator. The consent decree also enjoins the hospital from refusing to hire applicants because of their sincerely held religious beliefs opposing taking flu vaccine, or denying religious exemptions from vaccination in the future, unless doing so would impose an undue hardship. It also calls for compliance training of personnel.

Church Sues City Over Operation of Ministry for Homeless

Suit was filed yesterday in an Ohio federal district court seeking to enjoin the city of Bryan, Ohio from enforcing its zoning ordinances in an attempt to prevent a Christian church that ministers to the homeless from remaining open 24-hours a day. The complaint (full text) in Dad's Place of Bryan, Ohio v. City of Bryan, (ND OH, filed 1/22/2024), contends that the city has begun "a coordinated effort to exclude ministries from operating downtown." The city has charged the church's pastor with 18 criminal counts for allowing homeless to reside on the property for an extended amount of time in violation of zoning rules. The Church in its complaint contends that the city has violated the 1st and 14th Amendments, RLUIPA, the Fair Housing Act and the Ohio Constitution. First Liberty Institute issued a press release announcing the filing of the lawsuit.

UPDATE: Friendly Atheist has additional background on the city's concerns regarding the church's activities.

Montana AG Says Abortion Rights Initiative Cannot Go on Ballot

In a Memorandum dated January 16, Montana's Attorney General has ruled that proponents of an abortion rights amendment to the Montana Constitution may not begin to collect signatures to get the proposal on the ballot because the proposal is legally insufficient. (Full text of AG's ruling.) Montana's Supreme Court in Armstrong v. State (1999) has previously held that the state Constitution's privacy provisions protect the right to pre-viability abortion. The proposed Amendment as summarized by the Secretary of State would explicitly protect that right, would assure the right to abortion even post-viability when necessary to protect the pregnant person's life or health, and would prohibit the state from taking adverse action against patients, healthcare providers or anyone assisting someone in obtaining reproductive care. The Attorney General's Memorandum concludes that the proposed Amendment "logrolls multiple distinct political choices into a single initiative," in violation of the separate-vote provision of the state Constitution. Montana Free Press reporting on the Attorney General's action, says that Amendment proponents plan to challenge the Attorney General's action in court. [Thanks to Thomas Rutledge for the lead.]

Controversial Hindu Temple Dedication Takes Place In India

In the Indian holy city of Ayodhya, the politically and religiously controversial dedication of the Ram Mandir, a Hindu Temple, took place this morning. An article last week in Time explains the significance of the event. Here are excerpts:

A decades-long flashpoint in India’s sectarian politics is poised to reach a climax next week. The Ram Mandir, a Hindu temple, will be consecrated Jan 22. on a contested holy site once home to a mosque in India’s northern city of Ayodhya. The special ceremony for the temple, which is still in construction, has been a decades-long effort in the making.

For Hindus, site marks the birthplace of Lord Ram, one of the most revered deities in the Hindu faith. But the site is also revered by Muslims for having once housed the 16th century Babri Mosque, a monument of faith for Indian Muslims that stood on the site for centuries before it was razed by a Hindu nationalist mob in 1992. Sectarian riots ensued, killing thousands of people....

Indian Prime Minister Narendra Modi, whose Hindu-nationalist government has overseen a steady rise in violence against Muslims and other religious minorities, will play a key role in the ceremony—one observers say will mark the unofficial start of his campaign to win a third consecutive term when Indians go to the polls in the spring....

In 2019, India's Supreme Court awarded the site to the Hindu community. (See prior posting.).

Sign Ordinance Restricting Anti-Abortion Protester Does Not Violate 1st Amendment

In Roswell v. Mayor and City Council of Baltimore, (D MD, Jan.19, 2024), a Maryland federal district court dismissed a suit by an anti-abortion sidewalk counselor who communicates with women entering and exiting a Planned Parenthood Clinic. A city ordinance prevented plaintiff from using A-frame signs in front of the clinic to communicate his religious convictions about abortions as well as information about alternatives to abortion. A permit to erect such signs can be obtained only by the owner of the property or an agent of the owner. Finding that the city ordinance did not violate plaintiff's free speech rights, the court said in part:

Plaintiff asks this Court to find that zoning ordinances cannot distinguish between the owners and tenants of adjacent properties utilizing A-frame signs for non-residential uses and those with no such property interest without running afoul of First Amendment principles. Fatal to Roswell’s position is the simple fact that the regulations do not “target speech based on its communicative content.” ...

The court also rejected plaintiff's free exercise of religion challenge, saying in part: 

Here, the challenged ordinances are unconcerned with religious exercise. They neither prohibit nor compel religious conduct. And even if the ordinances did burden religious exercise, a law that “incidentally burden[s] religion” does not violate the Free Exercise Clause if it is “neutral and generally applicable.”

State Department Names Recipients of International Religious Freedom Awards

Last Thursday, the State Department announced that Secretary Blinken has awarded the Department's International Religious Freedom Awards to individuals in New Zealand, Nigeria, Iraq, Pakistan, Nicaragua, South Africa, and People's Republic of China-Tibet, as well as to a group of nine Orthodox clergy in Lithuania. Detailed information about the award recipients is available on the website of the State Department's Office of International Religious Freedom.

Defamation Claim Not Subject to Ministerial Exception Doctrine; Discrimination and Contract Claims Are

In Uzomechina v. Episcopal Diocese of New Jersey, (D NJ, Jan. 18, 2024), a New Jersey federal district court held that the ministerial exception doctrine requires the court to dismiss racial discrimination and wrongful discharge claims brought by an African-American Episcopal priest who was dismissed from his position after allegedly false charges of financial and sexual misconduct. The court dismissed the claims saying that they "directly implicate the employment relationship between the religious institution and its ministerial employee." It dismissed breach of contract claims for similar reasons.

Plaintiff also brought a defamation claim against the Diocese for passing on false information about him to his subsequent employer-- a drug abuse rehabilitation center. The court concluded that this claim was not barred by the ministerial exception doctrine, saying in part:

... [B]y sharing its internal disciplinary procedures and beliefs with a secular third-party, ... the Diocese Defendants subjected itself to the laws that govern the public realm. In other words, exercising jurisdiction over Plaintiff's claim will not second-guess or threaten the Diocese Defendants' decisions to investigate its clergy, find misconduct by a clergy member, or impose internal disciplinary measures against a member of the church. What it will threaten is a religious organization's ability to make false and defamatory statements about its clergy or members to the general public, outside of the organization's internal operations. The ministerial exception, therefore, is not applicable to Plaintiff's defamation claims.

The court, nevertheless, dismissed this claim without prejudice for failing to adequately set out facts supporting the claim.

Michigan Prisons Implement Settlement Agreement on Religious Practices

In a press release yesterday, the Department of Justice announced that Michigan correctional authorities have now fully implemented prison reforms required by a 2021 settlement agreement. DOJ had alleged that various prison policies violated the Religious Land Use and Institutionalized Persons Act. The challenged policies required at least 5 people for group worship, barred group religious practices for Hindu, Yoruba, Hebrew Israelite and Thelema inmates and allowed access to the kosher Passover diet only to those who were on the year-round kosher diet.  According to DOJ's press release:

MDOC changed each of these policies to expand access to religious practice in compliance with the settlement. Under the revised policies, MDOC allows group religious practice for groups of two or more, permits previously banned religious groups to hold group services and allows people to participate in the Passover diet even if they do not participate in the kosher diet year-round. Department monitoring revealed that a significant number of people whose religious exercise was previously limited by policy can now worship together and can celebrate Passover consistent with their beliefs.

Denial of Vaccine Mandate Exemption for Nurse Is Upheld

 In St. Hillaire v, Montefiore Medical Center, (SD NY, Jan. 16, 2024), a New York federal district court rejected claims of religious discrimination brought by a hospital's Patient Safety Manager who was denied a religious exemption from a state Covid vaccine mandate and subsequently was fired. Plaintiff is an Apostolic Pentecostal Christian.  Denying Plaintiff's claim under Title VII, the court said in part:

As a New York hospital system, Defendant is legally obligated to comply with the DOH Mandate and is subject to stringent penalties for non-compliance, including loss of its license.... Defendant could not have accommodated Plaintiff’s request because Plaintiff was a registered nurse... and was a person covered by the DOH Mandate. Had Defendant granted Plaintiff’s request for an exemption, it would have been in direct violation of New York State law, thus suffering an undue hardship.

The court also rejected plaintiff's 1st Amendment free exercise claim because defendant is not a state actor. 

Certiorari Denied In Transgender Bathroom Case

Yesterday, the U.S. Supreme Court denied review in Metropolitan School District v. A.C., (Docket No. 23-392, certiorari denied 1/16/2024) (Order List). In the case (A.C. v. Metropolitan School District, (7th Cir., Aug. 1, 2023)) the U.S. 7th Circuit Court of Appeals-- invoking Title IX and the Equal Protection Clause-- affirmed an injunction issued by an Indiana federal district court ordering a school to grant a transgender boy access to boys' rest rooms. ACLU issued a press release on the Supreme Court's action.

New Report on Attitudes Toward Religious Freedom Released

Becket yesterday released its 2023 Religious Freedom Index (full text). This is the fifth year the Report has been compiled. The Executive Summary of the 99-page report says in part:

The Index is designed to give a holistic view of American attitudes toward religious freedom by surveying a nationally representative sample of approximately 1,000 American adults each year. The survey consists of 21 annually repeating questions that cover a broad range of topics, from the rights of religious people to practice their respective faiths to the role of government in protecting and promoting religious beliefs. The responses to these questions are broken down into six dimensions: 1) Religious Pluralism, 2) Religion and Policy, 3) Religious Sharing, 4) Religion in Society, 5) Church and State, and 6) Religion in Action....

In addition to the 21 repeating Index questions, the survey contains additional questions that differ from year to year and ask Americans about timely or special topics. This year, the Index asked about the Religious Freedom Restoration Act (which is celebrating the 30th anniversary of its passage), religion and parental rights in education, and the proper standard for religious accommodations on issues like abortion and Native American sacred sites....

Across a variety of questions, this year’s Index shows that Americans are deeply committed to the rights of parents to educate and raise their children in accordance with their faith and values....

Today Is Religious Freedom Day

Today is Religious Freedom Day, commemorating Virginia's adoption of the Virginia Statute for Religious Freedom on January 16, 1786. President Biden last week signed a Proclamation (full text) designating today as Religious Freedom Day in 2024.  The Proclamation reads in part:

Everyone must be free to practice their faith without fear, whether they are gathering for worship, attending a religious school, participating in the activities of other faith-based organizations, or simply walking down the street wearing the symbols of their faith.  That is why, working with the Congress, my Administration secured the greatest increase in funding in our history for the physical security of non-profits — including churches, gurdwaras, mosques, synagogues, temples, and other places of worship.  In my 2024 Budget proposal to the Congress, I requested that this funding be raised to $360 million, and my Administration works continually to protect places of worship, including through an annual Protecting Places of Worship Week of Action.