2nd Circuit Reverses Dismissal of Muslim Inmate's Complaint About Eid Meal

In Brandon v. Royce, (2d Cir., May 15, 2024), the U.S. 2nd Circuit Court of Appeals held that the district court erred in granting summary judgment dismissing a Muslim inmate's free exercise of religion claim against three Sing Sing prison officials. At issue was plaintiff's participation in a special meal for Muslim inmates and their guests around Eid al-Adha. Because the event was overbooked, prison officials offered inmates the special meal in their cells if they withdrew from attending the group event. Plaintiff withdrew but did not receive a meal.  On appeal, defendants argued, among other things, that they had a legitimate penological interest in not delivering the meal to plaintiff's cell-- a concern that civilian and inmate cooks who prepared meals for the event might place contraband in the meal trays. The court concluded:

In granting summary judgment to the defendants, the district court did not resolve the parties’ dispute as to whether the September 26 event was a religious event related to Eid al-Adha or an unrelated “family event.”  Rather, the district court relied on the defendants’ asserted penological interests and their view that there was an alternative means of Brandon exercising his First Amendment right: by attending the September 26 event and receiving the special meal there.  Neither ground supports granting judgment as a matter of law to the defendants at the summary judgment stage....

To be sure, we do not dispute that an increased possibility that a visitor would introduce contraband into a prison is a legitimate penological concern ....  We simply conclude that there is no unambiguous record support for the defendants’ claim that they denied Brandon a meal tray on September 26 because “the presence of outside guests increased the risk that contraband could be hidden in the food.”...  And we further conclude, based on the evidence before the district court, that the penological concerns relied on by the district court and raised on appeal cannot at this juncture support summary judgment in favor of the defendants....

11th Circuit: Excluding Sex Change Surgery from Health Plan Violates Title VII

 In Lange v. Houston County, Georgia, (11th Cir., May 13, 2024), the U.S. 11th Circuit Court of Appeals in a 2-1 decision held that an employer violated Title VII's ban on sex discrimination in employment when its employee health insurance plan excluded coverage for sex change surgery. The majority said in part:

The Exclusion is a blanket denial of coverage for gender-affirming surgery.  Health Plan participants who are transgender are the only participants who would seek gender-affirming surgery.  Because transgender persons are the only plan participants who qualify for gender-affirming surgery, the plan denies health care coverage based on transgender status....

 By drawing a line between gender-affirming surgery and other operations, the plan intentionally carves out an exclusion based on one’s transgender status.  Lange’s sex is inextricably tied to the denial of coverage for gender-affirming surgery.

Judge Brasher dissenting said in part:

... [T] the employer-provided health insurance plan here does not deny coverage to anyone because he or she is transgender. The alleged problem with this plan is that it excludes coverage for sex change surgeries, not that it denies coverage to transgender people. On the face of this policy, it doesn’t treat anyone differently based on sex, gender nonconformity, or transgender status....

... [T]he majority’s reasoning effectively eliminates “disparate impact” as a separate theory of liability. For various reasons, Lange is proceeding here under a disparate treatment theory, which is why the claim requires a showing of discriminatory intent. But we have developed an entire body of law—disparate impact—to address claims about certain facially nondiscriminatory employment policies that harm members of a protected class.... That body of law requires, among other things, an evaluation of an employer’s legitimate business reasons for adopting the policy.....

TLDEF issued a press release announcing the decision.

18 States Sue EEOC Over Guidance on Transgender Sexual Harassment

Eighteen states filed suit this week in a Tennessee federal district court challenging an EEOC Enforcement Guidance on Harassment in the Workplace issued on April 29.  The lengthy Guidance includes the following:

[S]ex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed. Harassing conduct based on sexual orientation or gender identity includes epithets regarding sexual orientation or gender identity; physical assault due to sexual orientation or gender identity; outing (disclosure of an individual’s sexual orientation or gender identity without permission); harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex; repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.

The complaint (full text) in State of Tennessee v. EEOC, (ED TN, filed 5/13/2024) among other things alleges that the Guidance violates the First Amendment, saying in part:

By purporting to require employers and their employees to convey the Administration’s preferred message on controversial gender-identity preferences— for example, requiring the use of pronouns that align with an employee’s self-professed gender identity and prohibiting the use of pronouns consistent with that employee’s biological sex—the Enforcement Document unconstitutionally compels and restrains speech, even if contrary to the regulated parties’ viewpoints....

Requiring that employers and their employees adhere to EEOC’s chosen gender ideology orthodoxy likewise treads on religious freedoms.  Because Title VII provides exemptions for small employers, it is not “generally applicable,” and the Enforcement Document triggers strict scrutiny under free-exercise caselaw.... EEOC’s gender-ideology-accommodation mandate impermissibly violates employers’ and employees’ free-exercise rights.... Thus, adopting the policies required by the Enforcement Document would cause Plaintiff States to violate their employee’s First Amendment rights.

Tennessee's Attorney General issued a press release announcing the filing of the lawsuit.

New Report Finds 63% of Americans Support Legalized Abortion

Yesterday, the Pew Research Center released a new report on public attitudes toward legal abortion. The Report (full text) is titled Broad Public Support for Legal Abortion Persists 2 Years After Dobbs. The Center's Summary of the Report says in part:

About six-in-ten (63%) say abortion should be legal in all or most cases. This share has grown 4 percentage points since 2021 – the year prior to the 2022 decision in Dobbs v. Jackson Women’s Health Organization that overturned Roe....

A narrow majority of Americans (54%) say the statement “the decision about whether to have an abortion should belong solely to the pregnant woman” describes their views extremely or very well. Another 19% say it describes their views somewhat well, and 26% say it does not describe their views well.

... About a third of Americans (35%) say the statement “human life begins at conception, so an embryo is a person with rights” describes their views extremely or very well, while 45% say it does not describe their views well....

Americans say medication abortion should be legal rather than illegal by a margin of more than two-to-one (54% vs. 20%). A quarter say they are not sure.

A second report concludes:

Seven-in-ten adults say IVF access is a good thing. Just 8% say it is a bad thing, while 22% are unsure.

European Court: Romania Violated European Convention When It Reversed Conviction of 2 Nazi War Criminals

In Zăicescu and Fălticineanu v. Romania, (ECHR, April 23, 2024), the European Court of Human Rights in a Chamber Judgment held that Romania had violated the European Convention on Human Rights when, in the late 1990's, it reopened the conviction of two Nazi war criminals and acquitted them of war crimes.  As summarized in a press release issued by the Court:

The applicants stated that they felt humiliated and traumatised because of the revision of historically and judicially established facts that, in their opinion, had amounted to a denial of the ethnically motivated violence of which they had been victims during the Holocaust.

The Court held that that the findings of the Supreme Court of Justice – specifically that only German troops had carried out on the territory of Romania actions against Jews and that R.D. had only followed orders issued by a superior – in the acquittal decisions of 1998 and 1999 had been excuses or efforts to blur responsibility and put blame on another nation for the Holocaust contrary to well established historical facts – all elements of Holocaust denial and distortion.

States that had experienced Nazi horrors could be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis. This obligation formed part of the case at issue, where alleged discriminatory acts had been performed by State authorities.  

As matters of public interest, the authorities should have publicised the retrial proceedings and their outcome. The Court found that, owing to that failure, the applicants had found out about them by accident, which could have caused them to feel vulnerable and humiliated. 

The Court was satisfied that the Government had not provided relevant and sufficient reasons for the revision of historical convictions for crimes connected with the Holocaust. The acquittals had therefore been “excessive” and “not necessary in a democratic society”, leading to a violation of Article 8 read in conjunction with Article 14.

In its opinion, the Court quoted findings of the International Commission on the Holocaust in Romania which concluded in part:

Of all the allies of Nazi Germany, Romania bears the responsibility for the greatest contribution to the extermination of the Jews, outside of Germany itself.

The Court's majority refused however to find violations of Article 3's prohibition on torture and inhuman or degrading treatment because these actions occurred before Romania became a party to the European Convention and indeed before the Convention came into existence. A partially dissenting opinion by two judges argued against this part of the majority's decision.

The two survivors who filed suit had not requested damages.  The Court said in part:

[The applicants] contended that the issue in this case was a matter of principle and that no financial compensation could correlate to the mental harm, humiliation and psychological suffering endured as result of the State’s actions. Under these circumstances, the Court considers that there is no call to award any sum in respect of damage.

The Court did award costs and expenses.

Recent Articles of Interest

From SSRN:

• Scott DeVito, Anti-Abortion Statutes as Religious Beliefs. (32 American University Journal of Gender, Social Policy & the Law 151 (2023)).
• Robert L. Tsai, Becoming Steve Bright, (Kentucky Law Journal, Vol. 113, 2024).
• Anthony Sangiuliano & Mark Friedman, Words that Wound and Laws that Silence: Offense, Harm, and Legal Limits on Discriminatory Expression, (McGill Law Journal, Forthcoming).
• Lois A. Weithorn, The Intrusive State: Restrictions on Gender-Affirming Healthcare for Minors, Exceptions to the Doctrine of Parental Consent, and Reliance on Science and Medical Expertise, 75 UC Law Journal 713 (2024)).
• Regina Hillman, The Battle Over Bostock: Dueling Presidential Administrations & the Need for Consistent and Reliable LGBT Rights, (32 Am. U. J. Gender Soc. Pol’y & L. 1 (2023)).
• Laura Lane-Steele, Sex-Defining Laws and Equal Protection, (California Law Review, Vol. 112, No. 1, 2024).
• Ebenezer Kojo Gyesi Menash, The Female Genital Mutilation (FGM) Prosecutions: Exploring Legal Approaches to Combat Gender-Based Violence and Protect Women's Rights Across African Nations, (May 2, 2024).
• James Morton, We Need to Talk About Islam - And the Western Blight on Sudanese Politics, (Shaw Sheet Publications, London, Issue 364, 7 March 2024).

Washington State AG Investigating Sex Abuse Cover-Up by Catholic Diocese

Washington state Attorney General Bob Ferguson announced yesterday that it has filed a petition to enforce a subpoena against the Catholic Diocese of Seattle in the AG's investigation of allegations of the misuse of charitable funds to cover up clergy child sex abuse claims. The Seattle Diocese has refused to cooperate in the investigation of three dioceses in the state. The Petition to Enforce the Subpoena of the Complex Litigation Division, (Super. Ct., filed 5/9/2024) (full text) says in part:

Although the Church has released only limited records regarding the extent of its complicity in the sexual abuse of children by its clergy, these limited records make clear that the Archdiocese in Washington State not only failed to warn the public about serial child sex abusers within the Church’s ranks, but actively protected such abusers and repeatedly ensured they would have access to new child victims by frequently allowing them to transfer locations. One especially illustrative example is Father Michael J. Cody, whom the Archdiocese allowed to minister in multiple parishes for over 15 years without ever warning the public, reporting his extensive history of sexually abusing children, or taking any meaningful action to protect the many vulnerable children he victimized.

Relying on Washington's Charitable Trust Act in subpoenaing the Diocese, the AG argues that the religious organization exemption in the Act should not be applied to prevent a sexual abuse investigation. It also argues that the 1st Amendment's Free Exercise clause does not shield the Diocese here.

Religious Discrimination Claim for Denial of Personal Leave Moves Ahead

In Balchan v. New Rochelle City School District, (SD NY, May 7, 2024), a New York federal district court refused to dismiss claims of religious discrimination, retaliation for submitting claims of religious discrimination, and a due process claim for stigmatization plus loss of employment. Plaintiff is a Jewish woman who was employed as the school district's Medial Director. At issue are disciplinary charges brought against her for allegedly using personal leave days for a vacation and the stigmatizing report by a hearing officer in connection with those charges. The court details the factual background in part as follows:

Plaintiff observes Jewish holidays including, but not limited to, Yamim Nora’im (a/k/a the “Days of Awe”), Rosh Hashanah, and Yom Kippur..... Plaintiff alleges that her personal scheme of things religious evolved over the course of her life, and that marriage to her Trinidadian husband resulted in her “meld[ing] many of her Jewish religious beliefs into her new Trinidadian identity.” ...

... Specifically, Plaintiff’s “personal scheme of things religious required that she take personal leave during [the Days of Awe] to adjust, meditate, repair her connection to [God], and re-focus . . . .” Accordingly, she planned a trip with her family to Trinidad and Tobago which she alleges was “religious in nature given its relation to the Jewish high holy days” and what had been going on in her personal and professional life....

10th Circuit: Vaccine Exemption for Only Some Religions Violates 1st Amendment

In Jane Does 1-11 v. Board of Regents of the University of Colorado, (10th Cir., May 7, 2024), the U.S. 10th Circuit Court of Appeals held that the policies for granting or denying a religious exemption from the Covid vaccine mandate on one of the campuses of the University of Colorado violated the 1st Amendment's Free Exercise and Establishment Clauses. As explained by the court:

The September 1 Policy declared that “[a] religious exemption may be submitted based on a person’s religious belief whose teachings are opposed to all immunizations.” ...  The Administration made clear that it would “only accept requests for religious exemption that cite to the official doctrine of an organized religion . . . as announced by the leaders of that religion.”  ....

...  Therefore, as the Administration explained to Anschutz students and employees, Christian Scientists and Jehovah’s Witnesses would qualify for an exemption under the Administration’s criteria.  However, the Administration would reject an application for an exemption if it deemed the applicant’s beliefs “personal,” not “religious,” or “not part of a comprehensive system of beliefs.”...  For example, the Administration decided that “it is ‘morally acceptable’ for Roman Catholics to take vaccines against COVID-19,” and that any Roman Catholic objections to the COVID-19 vaccine are “personal beliefs,” not “religious beliefs.” ... For similar reasons, the Administration refused to approve exemptions for Buddhist applicants.  Nor would the Administration approve exemptions for applicants who were members of the Eastern Orthodox Church.  The Administration also rejected exemption applications from Evangelical Christians, non-denominational Protestants, and applicants who did not specify whether they were affiliated with a particular religious organization....

The University adopted a modified policy on September 24 in the face of litigation, but, according to the majority, it was a mere pretext to continue its September 1 policy. The majority found that both policies were unconstitutional, summarizing its holding in part as follows:

We hold that a government policy may not grant exemptions for some religions, but not others, because of differences in their religious doctrines, which the Administration’s first policy did.  We further hold that the government may not use its views about the legitimacy of a religious belief as a proxy for whether such belief is sincerely-held, which the Administration did in implementing the first policy.  Nor may the government grant secular exemptions on more favorable terms than religious exemptions, which the Administration’s second policy does.  Finally, we hold that the policies at issue in this appeal were motivated by religious animus, and are therefore subject to strict scrutiny—which neither policy survives.  The district court concluded otherwise and, in so doing, abused its discretion.....

Judge Ebel filed a partial dissent, saying in part:

I agree the September 1 mandate should be enjoined preliminarily, although for reasons different from those relied upon by the majority.  However, I would not enjoin the September 24 mandate....  

... I see no evidence indicating that the University adopted either mandate out of an animus—that is, a hostility—toward religion generally or toward some religions in particular.  Second, Plaintiffs have not shown that the two inquiries the University posed to those applying for a religious exemption under the September 1 mandate infringed any First Amendment protection.  The University was entitled to ask applicants why they opposed being vaccinated in order to determine whether that opposition was based on religious beliefs and, if so, whether those religious beliefs were sincerely held and, if so, how those beliefs could be accommodated.

Thomas More Society issued a press release announcing the decision. 

Indiana Suit Seeks Release of Reports from Abortion Providers

Suit was filed last week in an Indiana state trial court by an anti-abortion organization objecting to the state Health Department's new policy of releasing only aggregate data from Termination of Pregnancy Reports filed by abortion providers. The organization seeks continued release of individual reports (which do not contain information identifying patients) in order to identify violations of health or safety standards by providers.  The complaint (full text) in Voices for Life v. Indiana Department of Health, (IN Super. Ct., filed 5/1/2024), alleges in part:

On April 11, 2024, Indiana Attorney General Todd Rokita issued an Official Opinion 2024-2. Exhibit 14. In it he rejected the Public Access Counselor’s informal opinion (23-INF-15) asserting that TPRs are patient medical records exempt from disclosure under I.C. § 5-14-3-4(a)(9), and set forth reasons why TPRs are not exempt from disclosure under the APRA on the theory they are patient records....

IDOH’s refusal to provide access to TPRs deprives private citizens of their role in petitioning the Attorney General to investigate cases that suggest a termination of pregnancy was unlawful. Complaints by members of the public are a condition precedent to the Attorney General’s exercise of his lawful authority....

Because it frustrates needed investigation into potentially unlawful abortions, IDOH’s refusal to disclose TPRs to Plaintiffs places human lives at risk. It also frustrates Voices For Life’s mission to protect the lives of mothers and the unborn. These results of the Public Access Counselor’s Informal Opinion are the opposite of what the statute intends in mandating creation and filing of TPRs. The Court must not allow this situation to continue.

Thomas More Society issued a press release announcing the filing of the lawsuit.

4th Circuit: Ministerial Exception Bars Suit by Catholic School Teacher Fired Over Same-Sex Marriage Plans

In Billard v. Charlotte Catholic High School, (4th Cir., May 8, 2024), the U.S. 4th Circuit Court of Appeals held that a Catholic high school teacher's suit alleging sex discrimination in violation of Title VII should be dismissed. The court's majority held that the ministerial exception doctrine defeated the suit by the teacher of English and drama who was not invited back to teach after he announced plans to marry his same-sex partner. The majority, finding that the teacher should be classified as a "minister" for purposes of the ministerial exception, said in part:

[F]aith infused CCHS’s classes – and not only the expressly religious ones.  Even as a teacher of English and drama, Billard’s duties included conforming his instruction to Christian thought and providing a classroom environment consistent with Catholicism.  Billard may have been teaching Romeo and Juliet, but he was doing so after consultation with religious teachers to ensure that he was teaching through a faith-based lens....  The record makes clear that CCHS considered it “vital” to its religious mission that its teachers bring a Catholic perspective to bear on Shakespeare as well as on the Bible.   

Moreover, we note that Billard did – on rare occasions – fill in for teachers of religion classes.... CCHS’s apparent expectation that Billard be ready to instruct in religion as needed is another “relevant circumstance” indicating the importance of Billard’s role to the school’s religious mission.   

Our court has recognized before that seemingly secular tasks like the teaching of English and drama may be so imbued with religious significance that they implicate the ministerial exception.

The majority rejected the school's argument for broadening statutory defenses to the Title VII claim.

Judge King filed an opinion concurring in the result but differing as to rationale. He said in part:

... I would neither reach nor resolve the First Amendment ministerial exception issue on which the majority relies.  I would decide this appeal solely on Title VII statutory grounds, that is, § 702 of Title VII.... [M]y good friends of the panel majority have unnecessarily resolved the appeal on the First Amendment constitutional issue.  In so ruling, they have strayed from settled principles of the constitutional avoidance doctrine and our Court’s precedent.

Court Says NY Proposed Amendment on Abortion, Sexual Orientation and Gender May Not Go on Ballot

In Byrnes v. Senate of the State of New York, (Livingston County NY Sup. Ct., May 7, 2024), a New York state trial court held that the proposed state Equal Protection constitutional amendment must be removed from the November 2024 ballot because the state legislature did not follow the proper procedures in approving the amendment for placement on the ballot.  The proposed amendment (full text) would expand the state constitution's Equal Protection clause by adding ethnicity, national origin, age, disability, sex (including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes and reproductive healthcare and autonomy) to race, color, creed and religion that are already protected against discrimination by the clause. The clause covers discrimination by private individuals and firms as well as by the state and the proposed amendment provides that no characteristic listed in the section shall be interpreted to interfere with the civil rights of any other person based on any of the other characteristics listed. The court held that the state legislature's failure to wait 20 days for an Attorney General's opinion on the proposed amendment before taking the initial vote on it invalidated the Resolution proposing the amendment. The City reports on the decision.

NY Sues Crisis Pregnancy Centers for False Advertising

New York's Attorney General filed suit this week in a New York state trial court against eleven crisis pregnancy centers and their parent organization alleging that they have violated the state's deceptive business practices and false advertising laws in promoting abortion pill reversal. The complaint (full text) in People of the State of New York v. Heartbeat International, Inc., (NY County Sup. Ct., filed 5/6/2024), alleges in part:

There is no competent and reliable scientific evidence to substantiate Defendants’ claims about APR’s efficacy and safety, including the central promise that APR can “reverse” the “abortion pill.”  The process has never been FDA approved, and researchers and major medical professional associations in the United States and abroad, including the American College of Obstetricians and Gynecologists (“ACOG”), have warned that it is unproven and unscientific. 

New York Attorney General Letitia James issued a press release announcing the filing of the lawsuit.

Alabama May Not Prosecute Those Who Arrange Out-of-State Abortions for Women

In Yellowhammer Fund v. Marshall, (MD AL, May 6, 2024), an Alabama federal district court held that the state Attorney General would violate women's right to travel and the free expression rights of reproductive health providers and their staffs if he carried out his threat to prosecute anyone who assists women in arranging out-of-state abortions that would be illegal if performed in Alabama. Refusing to dismiss these claims by plaintiffs, the court said in part:

... [T]he Constitution protects the right to cross state lines and engage in lawful conduct in other States, including receiving an abortion.  The Attorney General’s characterization of the right to travel as merely a right to move physically between the States contravenes history, precedent, and common sense.  Travel is valuable precisely because it allows us to pursue opportunities available elsewhere.  “If our bodies can move among states, but our freedom of action is tied to our place of origin, then the ‘right to travel’ becomes a hollow shell.”...

Moving to plaintiffs' free expression claim, the court rejected the state's reliance on the exception found in the Supreme Court's 1949 Giboney decision for speech integral to unlawful conduct. The court went on to say in part:

Having established that the Attorney General’s attempt to invoke Giboney is unavailing, the court turns to whether the plaintiffs have stated a viable First Amendment claim, taking the factual allegations in their complaints as true.  The plaintiffs submit that the State plans to initiate a prosecution under Alabama’s statutes punishing conspiracy, complicity, solicitation, and other crimes based on the content of the speech they and their staff wish to engage in about out-of-state abortions.  “[C]ontent-based speech regulations face ‘strict scrutiny,’ the requirement that the government use the least restrictive means of advancing a compelling government interest.”...   

The Attorney General does not argue that his threatened prosecutions can satisfy strict scrutiny.

The Hill reports on the decision.

President Speaks at Holocaust Museum's Ceremony

President Biden yesterday spoke for nearly 15 minutes at the U.S. Holocaust Memorial Museum's Annual Days of Remembrance Ceremony. (Full text of remarks.) He said in part:

This ancient hatred of Jews didn’t begin with the Holocaust; it didn’t end with the Holocaust, either, or after — or even after our victory in World War Two.  This hatred continues to lie deep in the hearts of too many people in the world, and it requires our continued vigilance and outspokenness.    

That hatred was brought to life on October 7th in 2023.  On a sacred Jewish holiday, the terrorist group Hamas unleashed the deadliest day of the Jewish people since the Holocaust.  

Driven by ancient desire to wipeout the Jewish people off the face of the Earth, over 1,200 innocent people — babies, parents, grandparents — slaughtered in their kibbutz, massacred at a musical festival, brutally raped, mutilated, and sexually assaulted.  Thousands more carrying wounds, bullets, and shrapnel from the memory of that terrible day they endured.  Hundreds taken hostage, including survivors of the Shoah.  

Now, here we are, not 75 years later but just seven and a half months later, and people are already forgetting.  They’re already forgetting that Hamas unleased this terror, that it was Hamas that brutalized Israelis, that it was Hamas who took and continues to hold hostages.  I have not forgotten, nor have you, and we will not forget....

Nebraska Governor Says State Will Not Comply with New Title IX Rules On Gender Identity Discrimination

As previously reported, last month the U.S. Department of Education promulgated new rules under Title IX on sex discrimination by educational programs receiving federal financial assistance. Among other things, the new rules provide that sex discrimination includes discrimination on the basis of sexual orientation or gender identity. Last Friday, Nebraska Governor Jim Pillen announced that Nebraska will not comply with the new title IX requirements which go into effect on August 1.  His announcement says in part:

 “The Biden administration’s rewrite of Title IX is an affront to the commonsense idea that men do not belong in women’s only spaces,” said Gov. Pillen. “It’s also a direct attack on the Women’s Bill of Rights, established by my executive order last August.” 

Gov. Pillen’s executive order declares the biological definition of male and female and protects women’s sports and the privacy of women-only spaces. 

"Protecting our kids and women’s athletics is my duty," said Gov. Pillen. "The President's new rules threaten the safety of women and their right to participate in women’s sports. Nebraska will not comply. We must fight against radical gender ideology and vigorously protect the rights of Nebraska women and girls.”

Vice President Issues Statement on Yom HaShoah

Today is Yom HaShoah. The White House has posted a Statement from Vice President Harris on Holocaust Remembrance Day (full text).  The Statement says in part:

[I]n recent days in the United States, we have seen hateful rhetoric and harassment against Jews. This is Antisemitism and must be condemned unequivocally. Hate of any kind has no place in our country.

For the Jewish people, the past seven months have evoked the memories—along with fear and anguish—of the Holocaust. So to all the Jewish people around the world, know this: President Joe Biden and I stand with you. We will fight Antisemitism with the full force of the U.S. government, including through the first-ever National Strategy to Counter Antisemitism. We will continue to stand with the people of Israel and its right to defend itself from those that threaten its existence. And we remain committed to Holocaust remembrance and education.

Like many Jewish Americans, my husband Doug has learned the harrowing stories of his family members that perished in the Holocaust. Last year, he traveled to the town where some of them lived in what is now Poland, and heard stories of family members shot and others who were deported to an unknown fate. He walked through the old Jewish Quarter of Krakow. And he visited Auschwitz-Birkenau, and the gas chambers, to bear witness.

President Biden will deliver the keynote address at tomorrow's commemoration at the Capitol Visitors Center, along with Congressional leaders.

UPDATE: On May 3, President Biden issued A Proclamation on Days of Remembrance of the Victims of the Holocaust, 2024 declaring May 5 through May 12 as a week of observance of the Days of Remembrance.  The Proclamation says in part:

I often reflect on memories of sitting around our kitchen table where my father would educate my siblings and me about the horrors of the Holocaust.  Entire families wiped out.  Communities savagely destroyed.  Survivors left with memories and traumas that will never go away — even as the tattoos etched into their skin by the Nazis fade and the number of survivors dwindles.  My dad taught us that silence is complicity — a lesson I have passed down to my children and grandchildren by taking them to the Dachau concentration camp in Germany.

Recent Articles of Interest

 From SSRN:

• Caitlin Millat, Race, Religion, and the Antiparallel, (American Journal of Law and Equality, Arizona State University Sandra Day O'Connor College of Law Legal Studies Research Paper No. 4776907 (2024).
• Danny Li, The Comstock Act's Equal Protection Problem, (April 26, 2024).
• Lawrence B. Solum, Original Public Meaning, (Michigan State Law Review, Vol. 2023, No. 807).
• Liz Tobin-Tyler, Putting Your Money Where Your Mouth Is: Maternal Health Policy After Dobbs, (Seton Hall Law Review, Vol. 53, 2023).
• Carlo A. Pedrioli, In re Marriage Cases, Same-Sex Marriage, and the California Supreme Court as Critical Social Movement Ally, (33 S. Cal. Interdisc. L.J. 137 (2023)).
• Alberto Alemanno, Philanthropy’s Commitment With the Future, (in Futures Philanthropy: Aspirations in the 21st century. Anticipation for the common good, Copenhagen Institute for Future Studies and Philea, Brussels, March 2024).

From SSRN (Non-U.S. Law):

• Nicholas Stamates, The Legal Status of American Indians, South American Indians, and Alaska Natives under the Canon Law of the Catholic and Orthodox Churches as seen through Papal Bull, Missions, Indian Boarding Schools, the Amazonian Synod, and Orthodox Autocephaly, (Indigenous Peoples' Journal of Law, Culture & Resistance, UCLA School of Law, Vol 10. (Forthcoming)).
• Abubakar Yusuf Mamud, Ummah: a Holistic Framework for Preventing and Countering Violent Extremism in Nigeria, (March 16, 2024).
• Neil James Foster, Liability of a Bishop for Sexual Abuse Committed by Clergy: Bird v DP (A Pseudonym). (April 28, 2024).
• Tabrez Ebrahim, Islamic Intellectual Property, (Seton Hall Law Review, Vol. 54, No. 4, 2024).
• Craig B. Mousin, A Migrant 4 Life Journeys to the New Tower of Babel: Christianity and Immigration,  (Abrahamic Hospitality and Its Contemporary Implications, Ori Z. Soltes and Rachel Stern, eds., (NY: Fordham University Press, 2024)).
• Ebenezer Kojo Gyesi Mensah, Investigating International Criminal Law and Sovereignty Issues Surrounding the Prosecution of Heads of State for War Crimes and Genocide, (April 30, 2024).

From elsewhere:

• Special Issue: Theology and Jurisprudence, Australian Journal of Law & Religion, Volume 4 (2024).

White House Sends Greetings on Orthodox Christian Easter

The White House today issued a Statement from President Biden (full text) sending warm wishes from him and the First Lady to those celebrating Orthodox Christian Easter. The Statement says in part:

The Resurrection of Jesus Christ reminds us of God’s abundant love for us and the power of light over darkness. We join Orthodox Christians in giving thanks for these and other blessings and rededicate ourselves to caring for those most in need.

In this sacred season, we hold people who are suffering from war and persecution especially close to our hearts. We will continue to pray and work for peace and justice for all people.

Feds Sue Texas Correctional Authorities for Failing to Accommodate Employee's Religious Head Covering

The Justice Department today filed suit against the Texas Department of Criminal Justice alleging that it violated Title VII by failing to accommodate a clerical employee's religious practice of wearing a head covering pursuant to her Ifa faith. The complaint (full text) in United States v. Texas Department of Criminal Justice, (SD TX, filed 5/3/2024), alleges in part:

34. Though Spears identified her belief in the Ifa faith and her religious practice of wearing a head covering, TDCJ was not satisfied that her religious beliefs were sincere or should be accommodated. 

35. Instead, when Spears turned in her accommodation form, Fisk informed her that TDCJ would further research her religion and its practices. Spears questioned whether it was a normal practice to research religions. Specifically, she asked whether research would be done for more mainstream religions. Fisk indicated that it was not TDCJ’s normal practice.

 36. On October 15, 2019, Fisk conducted an internet search of the Ifa religion and practices and faxed the search results along with Spears’s accommodation request to Terry Bailey for her consideration. 

37. Then, on October 16, 2019, TDCJ further questioned the sincerity of Spears’s faith when Bailey mailed a letter demanding documentation or a statement from a religious institution pointing to the specific Ifa belief or doctrine that supported the necessity of Spears’s head covering. The letter also stated that TDCJ would not take any further action to review Spears’s accommodation request until the additional information was submitted.

The Department of Justice issued a press release announcing the filing of the lawsuit.