Nebraska Law on Abortion and Transgender Care Does Not Violate Single-Subject Rule

In Planned Parenthood of the Heartland, Inc. v. Hilgers, (NE Sup. Ct., July 29, 2024), the Nebraska Supreme Court in a 6-1 decision held that a 2023 Nebraska statute, L.B. 574, which both restricts abortions and restricts gender-altering care for minors does not violate the state Constitution's single subject requirement for legislation.  Chief Justice Heavican's majority opinion said in part:

... [W]e reject Planned Parenthood’s contention that L.B. 574 is unconstitutional because its regulation of abortion does not further its regulation of gender-altering care and vice versa. Here, even though abortion and gender-altering care are distinct types of medical care, and even though L.B. 574 effectuates its purpose or object differently for each type, when broadly construing L.B. 574, all its provisions certainly are encompassed within the regulation of permissible medical care. We emphasize that, in our determination that the provisions of L.B. 574 each seek to regulate medical care, we make no comment on the substance of L.B. 574. Our focus is on whether L.B. 574 complies with article III, § 14.

Justice Papik, joined by Justice Stacy filed a concurring opinion. Justice Miller-Lerman filed a dissenting opinion.

Liberty Counsel issued a press release announcing the decision.

Denial of Foster Care Licensure Subject to Strict Scrutiny

In Burke v. Walsh, (D MA, June 5, 2024), a Massachusetts federal district court refused to dismiss free exercise and free speech claims brought against Massachusetts Department of Children and Families personnel in their official capacities. Plaintiffs, a Catholic couple, were denied licensure for foster care and adoption because they did not demonstrate the ability to support the well-being of an LGBTQIA+ child that might be placed with them. The court said in part:

The court concludes it was clearly established, in 2023, that DCF's individualized and discretionary assessment of Plaintiffs' foster license application was not a "generally applicable" policy and thus was subject to strict scrutiny. Under the governing regulations, DCF considers 17 different subjective criteria, all of which must be demonstrated "to the satisfaction of the Department," when deciding on a foster license application. 110 C.M.R. § 7.104(1). One of these requirements, upon which Defendants relied in denying Plaintiffs' application, is "to promote the physical, mental, and emotional well-being of a child placed in his or her care, including supporting and respecting a child's sexual orientation or gender identity."...

 ... [T]he court need not decide, at this stage, whether it was also clearly established that Defendants' conduct would not withstand strict scrutiny analysis under these circumstances.

7th Circuit Gives Broad Interpretation of "Religious" Claims Under Title VII

In Passarella v. Aspirus, Inc., (7th Cir., July 29, 2024), the U.S. 7th Circuit Court of Appeals in an opinion by Judge Scudder held that a request for a religious accommodation under Title VII may include secular elements. At issue were employees' requests for an exemption from the employer's Covid vaccine mandate. The court said in part:

At the pleading stage, an employee seeking an accommodation in the form of an exemption from an employer’s vaccine mandate must allege facts plausibly permitting an inference that some “aspect[]” of the request is based on the employee’s “religious observance and practice” or “belief.” 42 U.S.C. § 2000e(j). 

Applying the statutory language necessarily requires an exercise of judgment: the standard is not amenable to formulaic resolution like solving a math equation. To the contrary, its application requires a holistic assessment of the terms of the employee’s exemption request, with the controlling inquiry at the pleading stage being whether the employee plausibly based her vaccination exemption request at least in part on an aspect of her religious belief or practice.  

... An employee may object to an employer’s vaccine mandate on both religious and non-religious grounds—for example, on the view that receiving the vaccine would violate a religious belief and implicate health and safety concerns. Congress permitted this, as we see no other way to give effect to the breadth of its definition of “religion”—as covering “all aspects” of an employee’s religious observance, practice, and belief.... And, for its part, the Equal Employment Opportunity Commission, in implementing this same definition, has likewise emphasized that a religious objection to a workplace requirement may incorporate both religious and secular reasons.... 

Judge Rovner dissented, saying in part:

I recognize that Dottenwhy, in the statements she submitted to Aspirus, invoked her rights as a Christian, said she had prayed about the matter and sought guidance from G-d, and expressed her conviction that “HE is with me on this decision.” ... Without more, such statements are not enough, in my view, to transform an otherwise secular objection to the vaccine into a religiously-based one.... I am not convinced that Congress meant to compel an employer to grant any requested accommodation that an employee has prayed about and has concluded that his or her G-d supports. If that were so, there would be almost no limit to the accommodations that an employer would have to entertain under Title VII’s ban on religious discrimination....

Passarella’s statement came somewhat closer to describing a religious basis for a vaccine exemption, but in the end, I believe that Aspirus correctly understood her objection to the COVID-19 vaccine to be secular rather than religious....

It cannot be enough to state a claim for a religious accommodation to assert that because one’s conscience is G-d given, any decision one reaches in their good conscience is necessarily inspired and endorsed by G-d, and therefore is religious in nature.

In Bube v. Aspirius Hospital, Inc., (7th Cir., July 29, 2024), a different panel of the 7th Circuit, with only Judge Scudder being on both, reversed the dismissal of claims by two employees for religious exemptions from a hospital's Covid vaccine mandate. The court, in a unanimous opinion written by Judge Scudder, said in part:

We have no trouble concluding that both of these requests are based at least in part on an aspect of the plaintiffs’ religious beliefs. God “gave” Bube a “mind, body and soul” so that she feels obligated to avoid what she considers unsafe substances in order to remain healthy. And Hedrington was “created … perfectly” by God so that accepting a “risk[y]” vaccine would be a “sin.” ...

Scrutinizing the composition of these requests—especially at the pleading stage—runs counter to not only the broad language of Title VII but also the Supreme Court’s repeated warnings that the law requires a hands-off approach when it comes to defining and discerning the core limits of religious exercise.

3rd Circuit: Jury Issues Remain in Suit Over Religious Exemption from Covid Vaccine Mandate

In Spivack v. City of Philadelphia, (3d Cir., July 29, 2024), the U.S. 3rd Circuit Court of Appeals vacated the dismissal of a suit brought by Rachel Spivack, an Orthodox Jewish employee of the Philadelphia District Attorney's Office, and remanded the case for trial.  Spivack was dismissed from her position for refusing, on religious grounds, to comply with the Office's Covid vaccine mandate. Spivack contended:

 “[a]ll three available brands of COVID-19 vaccines constitute a profound violation of the scriptural prohibitions against forbidden mixtures,” and that “[i]njecting such forbidden substances directly into our bloodstream completely challenges scriptural teaching that regards one’s body as the repository of the soul made in God’s image.” ...

The appeals court said in part:

There is ... a dispute of material fact as to whether anti-religious hostility tainted the DAO’s treatment of religious exemptions.  That is because a reasonable jury could conclude, based on some evidence in the record, that the DAO’s treatment of religious exemptions reflected “intoleran[ce] of religious beliefs.”...

But Krasner claims that Spivack was disciplined under a later policy—the January 2022 policy, which eliminated the religious exemption altogether and kept only the medical exemption.... 

That Krasner continued to evaluate medical exemption requests under the January 2022 policy does not undermine that policy’s general applicability.  Medical exemptions were a separate and objectively defined category of exemption requests....

The critical question is whether the medical exemptions in these policies are comparable to a religious exemption—in other words, whether the “preferential treatment of secular behavior” in the form of a medical exemption “affect[s] the regulation’s purpose in the same way as the prohibited religious behavior.” ...

Unlike a religious exemption, a medical exemption furthers the DAO’s interest in keeping its employees safe and healthy by allowing employees for whom the COVID-19 vaccine would cause death or illness to abstain from vaccination....

[T]he DAO must show that its policy was narrowly tailored, which “requires the government to demonstrate that a policy is the least restrictive means of achieving its objective.”...

Unanswered factual questions pervade this inquiry.  How many similar exemption requests would the DAO need to grant?  Would other, less restrictive mitigation measures for employees with religious exemptions ... have achieved the office’s objectives?  If strict scrutiny applies, a jury must consider these questions....

First Liberty Institute issued a press release announcing the decision.

6 More States Enjoin Enforcement of New Title IX Rules Barring Transgender Discrimination

Yet another court has enjoined the Department of Education from enforcing its new Title IX rules that interpret Title IX's ban on sex discrimination as including a ban on gender identity discrimination. In State of Arkansas v. U.S. Department of Education, (ED MO, July 24, 2024), a Missouri federal district court issued a preliminary injunction barring enforcement against Arkansas, Missouri, Iowa, Nebraska, North Dakota, South Dakota and the individual plaintiff, a student in a school in Arkansas who says the rule violates her religious beliefs.  the court said in part:

After preliminary review and without ultimately deciding the issue, the Court is persuaded that plaintiffs have a fair chance of prevailing on their argument that the reasoning of Bostock, a Title VII employment discrimination case, should not apply to Title IX. ...

Given that notice is the touchstone of Title IX, the statute contains no definition of sex or express prohibition of discrimination on the basis of gender identity, and it expressly permits sex-based differential treatment in certain circumstances, plaintiff States have met their preliminary burden of establishing a fair chance of prevailing on their argument that they lacked constitutionally sufficient notice that sex discrimination would be interpreted as including gender identity discrimination when they accepted federal funding under Title IX.

The court also preliminarily enjoined the new rules' expansion of the definition of harassment, concluding that the definition may violate the 1st Amendment by chilling speech. ADF issued a press release announcing the decision.

Recent Articles of Interest

From SSRN:

• Dov Fischer, Development of Accounting and the Jewish Calendar, a Comparative Study (Presentation Slides), (June 20, 2024).
• Justin Askins, Peace Lily (February 26, 2024).
• Bryan Dennis Tiojanco, Gender, Sexuality and Democratic Constitutionalism in the Philippines, (Chapter 8 of Wen-Chen Chang, Kelley Loper, Mara Malagodi, & Ruth Rubio-Marín (eds.), Gender, Sexuality and Constitutionalism in Asia, Bloomsbury Publishing, Jan 25. 2024).
• Muhammad Sarim Tahir, Concept of Usurpation(Ghasab) and its Remedies in Islamic Law of Torts and its Remedies  (February 05, 2024).
• Preston Green, Suzanne Eckes & Julie Mead, Chartering Religion: Educators' Civil Rights in Religious Charter Schools, (West's Education Law Reporter (forthcoming)).
• Muhammad Sarim Tahir, Khul'a Without Husband's Consent in the Eyes of Shariah vs Superior Courts of Pakistan: A Critical Analysis, (June 30, 2024).
• Bryan Dennis Tiojanco, Gender, Sexuality and Democratic Constitutionalism in the Philippines, (Chapter 8 of Wen-Chen Chang, Kelley Loper, Mara Malagodi, & Ruth Rubio-Marín (eds.), Gender, Sexuality and Constitutionalism in Asia, Bloomsbury Publishing, 2024).
• Benjamin Field, Jeff Rowes & Christian Lansinger, Brief of Appellees in Richwine v. Matuszak (7th Cir.) on the First Amendment Rights of End-of-Life Doulas, (June 28, 2024).

From SmartCILP:

• Frank Ravitch, Unprincipled, 61 Houston Law Review 517 (2024).

Nebraska Supreme Court Upholds Dismissal of Priest's Suit Against Archdiocese

 In Syring v. Archdiocese of Omaha, (NE Sup. Ct., July 26, 2024), the Nebraska Supreme Court upheld the dismissal of defamation, infliction of mental distress, interference with prospective employment and breach of fiduciary duty claims by a Catholic priest against his Archdiocese.  The priest was listed on an Archdiocese website that named those against whom there had been allegations of misconduct or abuse of a minor. He was forced to resign his ministry position and the Archdiocese refused to approve his serving as a hospital chaplain. The court held that the Archdiocese's action did not meet the standard for outrageous conduct needed to sustain a claim for intentional infliction of emotional distress. It went on the dismiss various of plaintiff's claims on the basis of the ministerial exception doctrine.  The court said in part:

Syring’s claims asserted that the Archdiocese “falsely impute[d] unfitness to preform [sic] duties of employment, and prejudice[d] [Syring] in his profession or trade.” The other claims were premised upon Syring’s assertion that the Archdiocese owed him fiduciary duties. For example, the complaint identified a purported breach of a fiduciary duty in the Archdiocese’s “requiring [Syring’s] resignation, and omitting to advise him of his right to counsel, both civil and canonical.”

We cannot uphold Syring’s claims without interfering with the internal governance of the church, or depriving the church of control, over the selection of its ministers. The claims— based on the conversation between officials of a Catholic archdiocese and a hospital operated by a Catholic religious order regarding permission for Syring to serve as a chaplain, Syring’s fitness to perform the duties of his employment, and the requiring of Syring’s resignation from that employment— lie at the heart of the ministerial exception articulated by the U.S. Supreme Court. The district court did not err in dismissing these claims.

Canadian Court Enjoins Enforcement of Guidelines That Adversely Impact Kosher Slaughtering

 In Jewish Community Council of Montreal v. Canada (Attorney General), (CA Fed. Ct., July 24, 2024), a judge of the Canadian Federal Court issued an interlocutory injunction preventing the Canadian Food Inspection Agency from enforcing Guidelines that require kosher slaughterers that do not stun animals before slaughter to test three indicators of unconsciousness before suspending an animal. Jewish organizations that are plaintiffs in the case say that imposition of the new Guidelines has reduced the volume of kosher beef produced in Canada by 55% and the volume of kosher veal by 90%. The court said in part:

The issue is therefore whether the Guidelines requiring the application of the three indicators of unconsciousness to ensure that an animal is unconscious before suspension, as required under section 143 of the SFCR, are reasonable when applied to shechita, or whether they represent an encroachment on the Applicants’ right to freedom of religion under subsection 2(a) of the Charter, or whether the requirement is discriminatory under section 15 of the Charter....

The Applicants submit that the Guidelines constitute a major departure from prior practice and are unduly protective as they essentially require that the animal be brain-dead before being suspended, when section 143 of the SFCR only requires that the animal be unconscious.... The Guidelines therefore require an unreasonable application of the precautionary principle which does not measurably add to animal welfare (as required under sections 141 to 144 of the SFCR) while slowing down the operation of kosher slaughter to the point where licence holders prefer to cease production. As a result, the Guidelines restrict access to kosher meat and prevent Canadian Jews from exercising the requirements of their faith.

The Guidelines are also discriminatory as they unfairly associate a religious practice of shechita to animal pain, and impose a challenge that does not apply to non-kosher meat production. The Guidelines therefore impose on Jews a burden and deny them benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage. Their Charter rights to freedom of religion and the right to equality enshrined in the Charter are therefore unjustifiably restricted....

For the perspective of shochetim and bodkim, they are deprived of their ability to practise their faith and profession, as they can no longer exercise their duties as religious leaders in the community. As shochetim and bodkim represent a precious resource for the Canadian Jewish community, the loss of their expertise will encroach on the Canadian Jewish community’s culture and collective aspect of religious beliefs. The interference is therefore substantial, both from an individual and collective point of view....

Hamodia reports on the decision. 

States Lack Standing to Challenge FDA's Rules on Dispensing of Abortion Pill

In State of Washington v. U.S. Food and Drug Administration, (9th Cir., July 24, 2024), the U.S. 9th Circuit Court of Appeals refused to permit the state of Idaho (and 6 other states) to intervene in a lawsuit brought by a group of states led by the state of Washington challenging the FDA's restrictions on pharmacies' dispensing of the abortion pill mifepristone. FDA regulations adopted in 2021 allow mifepristone to be dispensed by pharmacies in retail locations or by mail, but only if the pharmacy is specially certified to do so. Washington's lawsuit contends that the certification and documentation requirements are unnecessary.  Idaho, on the other hand, wants the court to order the FDA to go back to earlier requirements that only allowed mifepristone to be dispensed in person by a physician and did not allow it to be obtained directly from pharmacies. The court concluded that because Idaho seeks fundamentally different relief that does Washington, it must establish its own standing in order to intervene. The court concluded that Idaho did not have separate standing, saying in part:

Idaho first alleges that elimination of the in-person dispensing requirement will cause the state economic injury in the form of increased costs to the state’s Medicaid system.  At oral argument, Idaho stated that this is its “strongest basis” for standing.  Even taking Idaho’s highly speculative allegations as true, the complaint does not demonstrate an injury-in-fact because it depends on an attenuated chain of healthcare decisions by independent actors that will have only indirect effects on state revenue....

Idaho next alleges that elimination of the in-person dispensing requirement will harm its sovereign interest in law enforcement by making illegal mifepristone use harder to detect.  This allegation is insufficient to convey standing because nothing in the 2023 REMS impairs Idaho’s sovereign authority to enact or enforce its own laws regulating chemical abortion....

Finally, Idaho alleges that elimination of the in-person dispensing requirement will harm its “quasi-sovereign interest” in maternal health and fetal life.  Idaho cannot sue FDA on this basis because the allegations concern the interests of individual citizens—not the separate interests of the state itself....

Courthouse News Service reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Arkansas Supreme Court Orders Initial Count of Signatures on Abortion Amendment Petitions

 In Cowles v. Thurston, (AR Sup. Ct., July 23, 2024), the Arkansas Supreme Court ordered the state Secretary of State to perform an initial count of signatures submitted by volunteer canvassers for a state constitutional amendment that would give women the right to obtain an abortion during the first 18 weeks after fertilization, and later in cases of rape, incest, fatal fetal anomaly, or to protect the mother's life or physical health. As previously reported, the Secretary of State rejected all the petitions because they were not accompanied by required paperwork regarding those submitted by paid canvassers. 3 Justices would have gone further and given proponents a 30-day cure period. Arkansas Advocate reports on the Court Order. [Thanks to Thomas Rutledge for the lead.]

Equally Divided New Jersey Supreme Court Dismisses Defamation Suit Against Jewish School

 In Hyman v. Rosenbaum Yeshiva of North Jersey, (NJ Sup. Ct., July 24, 2024), an equally divided New Jersey Supreme Court decision resulted in affirmance through a short per curiam opinion of the dismissal of defamation claims brought against an Orthodox Jewish school by a Judaic Studies teacher whose employment by the school was terminated. The Justices were equally divided on whether discovery should be permitted in the case.

The 6 justices participating in the decision unanimously agreed on the standard for applying the ministerial exception, saying that the court must analyze each element of plaintiff's claim and determine whether adjudicating it would require the court to choose between competing religious visions or would interfere with a church's administrative prerogatives including its right to select and control the duties of its ministers, whether or not the alleged misconduct is rooted in religious belief. Here plaintiff's employment was terminated for inappropriate touching of female students. Information about his termination was emailed to the school's Board of Directors, parents of current students and faculty members. The letter was subsequently disseminated on social media.

Justice Patterson's concurring opinion for 3 justices said in part:

Here, the religious employer’s allegedly defamatory statement was not a description of claimed misconduct by Hyman; no such description appears in Price’s letter to the school community.  Instead, Hyman’s defamation claims are premised on Price’s statement that “it was determined that Rabbi Hyman’s conduct had been neither acceptable nor consistent with how a rebbe in our Yeshiva should interact with students.”  In short, the statement at the heart of this case was not an assertion of fact about the former students’ allegations, but an explanation of the Yeshiva’s decision to terminate Hyman -- a determination made in consultation with halachic authorities as well as legal counsel.  With or without discovery regarding the details of the allegations, the court’s inquiry as to the merits would be the same:  the court would be required to assess the reasons for a religious institution’s decision to terminate the employment of a minister, an inquiry that would violate the First Amendment.

Justice Pierre-Louis' dissenting opinion for 3 justices said in part: 

In order for a court to make [a determination that the ministerial exception applies] ... plaintiffs must be allowed discovery.... [U]nder the concurring opinion’s analysis, a religious entity can seemingly fire an employee based solely on a personal vendetta, publish a knowingly false and defamatory statement about the plaintiff, and shield itself from liability -- and even discovery -- by invoking the ministerial exception.  Such a holding slams the courthouse door shut on potentially wronged plaintiffs before they can even obtain discovery that would allow a court to determine whether adjudicating their claims actually interferes with religious autonomy....

Defendants have conflated the issues in this case, making it appear as though this defamation case is the same as an employment discrimination case.  But assessing the legality of what a religious institution says about an adverse employment action is not the same thing as determining the lawfulness of the adverse action itself.  The latter necessarily requires a court to interfere with a religious institution’s internal management, its doctrinal specificities, and its decisions regarding who preaches the faith, but the former does not.

Becket Fund issued a press release announcing the decision.

Leader in International Neo-Nazi Group Indicted for Soliciting Hate Crimes and Mass Violence

The U.S. Attorney's Office for the Eastern District of New York announced last week the federal indictment of the leader of an international neo-Nazi group. The press release said in part:

A federal grand jury in Brooklyn yesterday returned a four-count indictment charging Georgian national Michail Chkhikvishvili, also known as ... “Commander Butcher” ... with soliciting hate crimes and acts of mass violence in New York City.  Chkhikvishvili was arrested in Chișinău, Moldova on July 6, 2024 pursuant to an Interpol Wanted Person Diffusion.... Chkhikvishvili is alleged to be a leader of the Maniac Murder Cult,... an international racially or ethnically motivated violent extremist group.  Chkhikvishvili allegedly recruited others to commit violent acts in furtherance of MKY’s ideologies, including planning and soliciting a mass casualty attack in New York City....

Beginning in approximately November 2023, Chkhikvishvili solicited [an FBI undercover agent ("UC")] ... to commit violent crimes....  Chkhikvishvili provided detailed plans and materials such as bomb-making instructions and guidance on making Molotov cocktails.... In November 2023, Chkhikvishvili began planning a mass casualty attack in New York City to take place on New Year’s Eve.  The scheme involved an individual dressing up as Santa Claus and handing out candy laced with poison to racial minorities.  The scheme also involved providing candy laced with poison to children at Jewish schools in Brooklyn.  Chkhikvishvili drafted step-by-step instructions to carry out the scheme and shared with the UC detailed manuals on creating and mixing lethal poisons and gases.  He also instructed the UC on methods of making ricin-based poisons in powder and liquid form....

Prison Sentences Imposed in Two Separate Antisemitism Cases

Yesterday, an Indiana federal district court sentenced 67-year-old Andrezj Boryga to 24 months in prison followed by two years of supervised release after Boryga pleaded guilty to transmitting antisemitic threats in interstate commerce.  According to a Justice Department press release:

... [B]etween July 9 and Dec. 14, 2022, Boryga left voicemails at Anti-Defamation League offices located in New York, Texas, Colorado, and Nevada. Boryga used antisemitic slurs on eight voicemails as he threatened to assault or kill Jewish people.

Yesterday a New Jersey federal district court sentenced 29-year-old Dion Marsh to 40 years in prison followed by 5 years of supervised release after Marsh pleaded guilty to committing a series of violent assaults on visibly identifiable members of the Lakewood, New Jersey, Orthodox Jewish community.  According to a Justice Department press release:

[Marsh] pleaded guilty... to ... five counts of violating the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act and one count of carjacking. With respect to the Shepard Byrd Act violations, Marsh admitted to willfully causing bodily injury to five victims and attempting to kill and cause injuries with dangerous weapons to four of the victims because they are Jewish.

Report Ranking States on Legal Protections for Religious Liberty Released

 Last Friday, the Center for Religion, Culture and Democracy announced release of its 2024 report (full text) on Religious Liberty in the States. According to the Report:

Now in its third annual edition, RLS 2024 considers thirty-nine distinct kinds of legal provisions that states may adopt to protect religious liberty. These legal provisions, which we refer to as “items,” are aggregated into sixteen “safeguards” that we then average to produce one index score per state. The index allows us to rank states and to track changes in religious liberty protections over time....

States are far more likely to pass some protections than others. States either do not have mandates that require health-insurance plans to cover contraception, abortion, and/or sterilization or, if they do, most include a religious accommodation so that organizations that have religious objections to covering such procedures are not compelled to do so. Every state in the union requires children to be vaccinated before attending public (and sometimes private) schools, but the vast majority provide exemptions for families that have religious objections to vaccinations. And most states either provide absentee ballots for any reason or permit individuals who have religious commitments that prevent them from voting in person to receive them. 

The least widely adopted protections include guaranteeing that medical professionals and organizations with religious objections to providing contraception will not be compelled to do so. Very few states permit public officials who may be asked to participate in a wedding ceremony to decline to do so for religious reasons. Finally, only one state permits for-profit businesses to decline to participate in wedding ceremonies to which their owners/employees have sincere religious objections.

 This year's report ranks Illinois first and West Virginia 50th in protections for religious liberty.

Church Obtains Preliminary Injunction Under RLUIPA Allowing Its On-Site Shelter Program to Continue

In Church of the Rock, Inc. v. Town of Castle Rock, Colorado, (D CO, July 19, 2024), a Colorado federal district court granted a church a preliminary injunction preventing the Town of Castle Rock from interfering with the church's use of an RV and a trailer on church property in its On-Site Temporary Shelter Ministry. The court said in part:

The Town argues that the Church’s RLUIPA claim is not likely to succeed because the applicable zoning regulations do not substantially burden the Church’s exercise of its religious beliefs.... The Town instead characterizes the nature of the burden as a “mere inconvenience” and suggests that the Church could find other ways to satisfy its religious compulsion to provide for the needy, such as by providing hotel rooms or housing in other areas that are zoned for residential use.... It also suggests that finding a substantial burden in this case “effectively would be granting an automatic exemption to religious organizations from generally applicable land use regulations.”

The Church responds that its religious beliefs don’t just obligate it to provide for the needy in some general way; they obligate it to provide for the needy on Church property....

The Church has carried its burden on this question.... Although the Town alludes to a bit of a disconnect between the Church’s assertion that it is compelled to allow the poor to “live among you” and its desire to have people live in RVs on Church grounds rather than in homes and residential areas where Church members live, it does not ultimately dispute the sincerity of the Church’s assertions on this point, which are supported by sworn affidavits....

(See prior related posting.)  CBS News reports on the decision.

Recent Articles of Interest

From SSRN:

• Perry Dane, Some Thoughts on the Architecture of Freedom of Religion and Freedom of Speech, (Notre Dame Law Review Reflection (2024)).
• Nitsan Plitman, Harnessing Religious Arguments for The Benefit of Trans Advocacy: A New Approach, (Harvard Civil Rights - Civil Liberties Law Review, Vol. 58, pp. 395 (2023)).
• Matthew Cavedon, Fraternal Pluralism: How Catholics Approach Others, (July 15, 2024).
• Michel Rosenfeld, The Place of 'Hate' in Hate Speech: A Jurisprudential and Comparative Constitutional Inquiry, (Oxford Handbook of Hate Speech, Cardozo Legal Studies Research Paper No. 2024-28).
• Jeffrey A. Redding, Queer in a Time of Kashmir, (October 06, 2023).
• Areeba Butt, Minority Rights Under International Law, (July 03, 2024).
• Tyler B. Lindley, Anachronistic Readings of Section 1983, (June 14, 2024).
• Jordan Carr Peterson, Implementing Equality: State (Non)Compliance with Judicial Revisions to Public Policy on Gay Rights, (Law & Policy, Forthcoming).

From SmartCILP:

• Saumya Saxena, Policing Sati: Law, Order, and Spectacle in Postcolonial India, 41 Law & History Review 341-363 (2023).
• Leilah Vevaina, Mergers and Legal Fictions: Coverture and Intermarried Women in India, 41 Law & History Review 387-404 (2023).

Religious College Loses RFRA Challenge to SBA's Loan Forgiveness Rules

 In Gordon College v. U.S. Small Business Administration, (D DC, July 18, 2024), the D.C. federal district court dismissed claims by a religious nonprofit college that its rights under RFRA as well as the 1st and 14th Amendments were infringed when it was denied forgiveness of a $7 million loan that it received under the Covid era Paycheck Protection Program. Loan forgiveness was available to qualifying small businesses. Gordon College's loan forgiveness application was denied because it had over 500 employees and thus did not meet the SBA's small-business size standard. Rejecting plaintiff's RFRA claim, the court said in part:

... [P]laintiff fails to identify a “sincere religious belief” that has been infringed by application of the PPP’s 500-employee cap to plaintiff.... Absent here ... is any articulated connection between plaintiff’s asserted need to have more than 500 employees and its exercise of religion.  Plaintiff, for example, does not allege that “any religious group” has “as one of its tenets” the requirement that an associated religious institution have more than 500 employees ... or that it has treated having more than 500 employees to “ris[e] to [any] level of significance in [its] religion.”...

As to plaintiff's Constitutional challenges, the court said in part: 

... [T]he application of the PPP’s 500-employee cap to plaintiff is neutral and generally applicable, thereby triggering rational basis review, rather than strict scrutiny.  Plaintiff has failed to bring a rational-basis challenge by not plausibly alleging that no reasonable set of facts could provide a rational basis for the PPP’s 500-employee cap.  Accordingly, plaintiff’s Free Exercise and Equal Protection claims are dismissed....

Here, plaintiff alleges that “[d]efendants have interfered with the autonomy of [plaintiff] to define its own doctrine, membership, employment, staffing, affiliation, and other internal requirements” by “insisting on certain requirements [sic] for determining staffing and employment.... [P]laintiff has failed ... to explain why the PPP’s 500-employee cap... interfered with any “matters of faith and doctrine.”  Plaintiff’s religious autonomy claim is thus dismissed.

International Representatives Release Guidelines for Countering Antisemitism

On Wednesday in Buenos Aires, Argentina, representatives of 36 nations and international organizations, including U.S. Special Envoy to Monitor and Combat Antisemitism Ambassador Deborah Lipstadt, released a set of legally nonbinding Global Guidelines for Countering Antisemitism (full text). Thursday was the 30th anniversary of the 1994 Hizballah bombing of the Asociación Mutual Israelita Argentina (AMIA) in Buenos Aires in which 85 people were killed. On Thursday, Secretary of State Blinken issued a statement (full text) announcing the Guidelines, saying in part:

The United States is pleased to play a leadership role, together with the European Union, the Organization of American States, the Government of Argentina, and other governments and international bodies, in advancing these guidelines and we invite others across the international community to endorse and implement them.  The Guidelines identify practical actions that governments, international bodies, civil society organizations, and people of conscience everywhere can take against antisemitism wherever and whenever it occurs.

Suit Challenges California's Ban on School Parental Notification Requirements as to Gender Transitioning

A school district and parents of school-age children filed suit this week in a California federal district court challenging California's recently-enacted AB 1955.  The statute prohibits school districts from requiring notification of parents when their children are socially transitioning their gender in school, unless the student consents to the disclosure. The complaint (full text) in Chino Valley Unified School District v. Newsom alleges that the statute violates parental rights to control the upbringing of their children and parents' free exercise rights as well as being preempted by the federal Family Educational Rights and Privacy Act. The complaint alleges in part:

The Parent Plaintiffs have each alleged that they are devout Christians who believe God created man and woman as distinct, immutable genders; their religious beliefs require that they be notified if their child requests to socially transition at school so that they may be involved with their child's treatment at school.

ABC News 10 reports on the lawsuit.

Russian Court Bans Online Sale of Souvenir Toilet Paper: Depiction Offends Feelings of Religious Believers

Moscow Times and Vyorstka reported yesterday that a Russian District Court in Moscow has banned the offering on four websites in Russia of souvenir toilet paper imprinted with images of the 1997 version of Russia's 1000-ruble bills. The court found that the toilet paper "offends the feelings of religious believers" in violation of Article 148 of the Russian Penal Code. The 1000-ruble bill carries a picture of a statue of Yaroslav the Wise who was Grand Prince of Kiev from 1019 to 1054. Yaroslav the Wise was canonized in 2016 by the Bishops Council of the Russian Orthodox Church. Prior to that, in 2005 he was named a local saint by the Patriarch of Moscow and in 2004 he was included in the calendar of saints of the Ukrainian Orthodox Church (Moscow Patriarchate). The court said in part:

In a free democratic society, the dissemination of illegal information capable of offending the religious feelings of believers cannot be protected by freedom of thought, speech, opinion and information