5th Circuit Hears Arguments on Louisiana Requirement for Classroom Posting of Ten Commandments

Yesterday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Roake v. Brumley. (Audio of full oral arguments.) In the case, a Louisiana federal district court held that Louisiana House Bill 71 that requires a copy of the Ten Commandments to be posted in every public-school classroom in the state is facially unconstitutional and unconstitutional in all applications. (See prior posting.) Courthouse News Service reports extensively on the oral arguments.

DOJ Civil Rights Division Freezes New Initiatives

The Washington Post yesterday reported that the Justice Department's new Chief of Staff has sent a memo to Kathleen Wolf, the new supervisor of the Civil Rights Division, freezing temporarily any new actions by attorneys in the Division.  The length of the freeze is unclear. The memo says that Civil Rights Division attorneys should not file any new complaints, motions to intervene, agreed-upon remands, amicus briefs, or statements of interest during the freeze. It explains that the freeze was imposed in order to be “consistent with the Department’s goal of ensuring that the Federal Government speaks with one voice in its view of the law and to ensure that the President’s appointees or designees have the opportunity to decide whether to initiate any new cases.”  Movement in pending cases already filed will be determined by the judge assigned to each case. Among the cases handled by the Civil Rights Division are those alleging religious discrimination in violation of federal civil rights laws.

7th Circuit Hears Arguments on Accommodating Teacher Who Objects to Using Students' Preferred Names and Pronouns

Yesterday the U.S. 7th Circuit Court of Appeals heard oral arguments in Kluge v. Brownsburg Community School Corporation. (Audio of full oral arguments.) In the case, an Indiana federal district court dismissed an orchestra teacher's Title VII claim that the school had failed to reasonably accommodate his religious objections to referring to transgender students by their preferred names and pronouns. The district court agreed with the school's rejection of using only students' last names as an accommodation. (See prior posting.) ADF, the teacher's counsel, issued a press release ahead of yesterday's arguments.

Kansas Court Says Statute Sets Low Threshold for Religious Exemption from Covid Vaccine Mandate

In St. Luke's Health System, Inc. v. State of Kansas ex rel. Schultz, (KS App., Jan. 17, 2025), a Kansas state appeals court held that under a Kansas statute, an employee's request for a religious exemption from an employer's Covid vaccine mandate does not require as much proof as the trial court in the case demanded.  The appeals court said in part:

The statute does not require the employee to articulate a basis for their sincerely held religious beliefs, nor does it require the employee to provide written evidence of those religious beliefs, as the district court held Glean was required to do. It only requires the employee to explain in a written statement that complying with a COVID-19 vaccine mandate would violate their sincerely held religious beliefs, which Glean did. K.S.A. 2023 Supp. 44-663(a). And, in fact, the statute specifies:  "An employer shall grant an exemption requested in accordance with this section based on sincerely held religious beliefs without inquiring into the sincerity of the request." K.S.A. 2023 Supp. 44-663(b)....

Not only did she [employee Sheryl Glean] explain that her refusal to get the COVID-19 vaccine is based on her religious views—as in she believes the vaccine may cause harm to her body—she clarified the religious basis for her concern (or why she believes getting the vaccine would be wrong) when she said since she became a Christian she believes the Bible tells her that her body is holy. See 1 Corinthians 6:19-20..... Glean further evidenced the religiosity of her beliefs when she stated that she had discussed her concerns about getting the vaccine with the pastor from her church. Glean's invocation of both the Bible and her pastor as sources of guidance in this matter evidence the religiosity of her beliefs about the COVID-19 vaccine.

Negligence Claim Against Army Chaplain Barred by Ecclesiastical Abstention Doctrine

In Winder v. United States, (ND TX, Jan. 17, 2025), a Texas federal district court held that the ecclesiastical abstention doctrine requires dismissal of a negligence lawsuit filed under the Federal Tort Claims Act growing out of advice given by an Army Chaplain.  The Chaplain was consulted by Latrisha Winder, an Army National Guard member, about her husband's suicide threat which her husband conveyed by phone to her from Texas while she was in Virginia. The Chaplain advised Winder to have local law enforcement conduct a welfare check. When Ms. Winder objected, the Chaplain threatened to call local law enforcement himself if she did not.  This led Ms. Winder to call law enforcement. The welfare check led to a confrontation and to the fatal shooting of Winder's husband by a sheriff's deputy conducting the check. The court said in part:

Contrary to Plaintiffs' argument, this action is not "simply a civil dispute in which a religious official happens to be involved." Based on the Complaint's allegations and its reference to Army regulations and training materials, Plaintiffs have failed to allege facts showing that this action "entails[] no inquiry into [the Chaplain's] religious doctrine."...

Plaintiffs argue the Chaplain threatened to breach his duty of confidentiality by telling Latrisha "he would call law enforcement if she did not call," which they contend "is wholly secular and a neutral principle that the Court can apply without inquiring into and applying [the Chaplain's] religious training, faith, and beliefs."...

The existence of this tension—whether the Chaplain's duty of confidentiality is religious or secular in nature—is precisely why free exercise principles mandate the Court abstain from adjudication here. Indeed, "[i]t is a core tenet of First Amendment jurisprudence that, in resolving civil claims, courts must be careful not to intrude upon internal matters of" religious doctrine.... It is not for the Court to adjudicate, or even question, the Chaplain's duty of confidentiality, given that Plaintiffs have admitted, and Army regulations make clear, there is a religious component to this inquiry.

9th Circuit: Hindu Out-of-Stater Lacks Standing to Challenge Ban on Caste Discrimination

In Bagal v. Sawant, (9th Cir., Jan. 21, 2025), the U.S. 9th Circuit Court of Appeals held that a practicing Hindu who lives in North Carolina lacks standing to challenge a Seattle, Washington Anti-Caste Discrimination Ordinance. The court said in part:

Appellant argues that the Ordinance violates the Free Exercise and Establishment Clauses of the First Amendment and the Equal Protection and Due Process Clauses of the Fourteenth Amendment....

Appellant speculates that the Ordinance could be enforced against him on a future visit to Seattle for ordering a vegetarian meal or wearing a religious marker called a Mauli thread on his wrist.  But these activities are not prohibited by the Ordinance, and Appellant fails to demonstrate that engaging in them would subject him to a credible threat of prosecution....

Appellant argues that the Ordinance creates stigma toward the Hindu religion, which amounts to disapproval of Hinduism over other religions and causes Appellant to refrain from certain Hindu practices.... Appellant has offered no plausible connection between his decision to refrain from engaging in certain Hindu practices in North Carolina and a Seattle Ordinance that prohibits none of those activities....

Appellant has also not demonstrated that he has a geographical connection to the Ordinance sufficient for standing for an Establishment Clause claim. 

1st Circuit Accepts Employer's Undue Hardship Defense for Denying Religious Exemption from Covid Vaccination

In Rodrique v. Hearst Communications, Inc., (1st Cir., Jan. 17, 2025), the U.S. 1st Circuit Court of Appeals upheld the dismissal of a Title VII lawsuit brought by a TV news photographer who asserted religious objections to his employer's Covid vaccine mandate. The employer refused to provide an accommodation, asserting that it would impose an undue hardship. The district court dismissed plaintiff's claim on the ground that his objection was not religious but instead reflected "a personal medical judgment about the necessity of COVID-19 vaccination" expressed in religious language. On appeal, the 1st Circuit held that it did not have to reach the issue of whether plaintiff's objections were religious because defendant had adequately carried its undue hardship defense. The court said in part:

Rodrique contends that Hearst has not proffered admissible evidence showing that the vaccine actually protects against the transmission of COVID-19.  As Rodrique frames the issue, if the vaccine does not reduce the likelihood of COVID-19 transmission -- as opposed to merely mitigating symptoms, for example -- then Hearst suffers no undue hardship by granting him an exemption.  And in Rodrique's view, only expert testimony can support this conclusion.,,,  

,,, [W]e disagree with Rodrique that Hearst did not provide legally sufficient evidence....  Because ... Hearst relied "on the objective, scientific information available to [it]," with particular attention to "the views of public health authorities," we hold that it acted reasonably when it determined that vaccinated employees are less likely to transmit COVID-19 than unvaccinated employees.

Business Insurance reports on the decision.

Harvard Settles Suit Charging Antisemitism in Violation of Title VI

The Brandeis Center for Human Rights Under Law issued a press release yesterday announcing that a settlement agreement has been reached in a suit filed last May against Harvard University charging Harvard with tolerating antisemitic bullying, harassment, and discrimination aimed at Jewish and Israeli students in violations of Title VI of the 1964 Civil Rights Act. An email from Harvard Hillel summarizes the settlement:

Adoption of the IHRA definition of antisemitism for purposes of discipline;

Explicitly recognizing Zionism as a protected category under the university’s non-discrimination policy;

A dedicated position for antisemitism complaints and reporting;

Annual public reporting on antisemitism-related cases and their outcomes for at least five years (including retrospective to October 1, 2023);

Mandatory outside training for staff reviewing antisemitism complaints;

Expanded academic programming on anti-Semitism;

Partnerships with an Israeli University and with the Brandeis Center.

Trump Executive Order Reverses Agency Policies Protecting Transgender Individuals

Yesterday President Trump signed an Executive Order titled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (full text). The Executive Order seeks to eliminate the recognition of transgender individuals in federal agency policies interpreting antidiscrimination provisions.  The lengthy Executive Order provides in part:

Across the country, ideologues who deny the biological reality of sex have increasingly used legal and other socially coercive means to permit men to self-identify as women and gain access to intimate single-sex spaces and activities designed for women, from women’s domestic abuse shelters to women’s workplace showers.  This is wrong.  Efforts to eradicate the biological reality of sex fundamentally attack women by depriving them of their dignity, safety, and well-being.  The erasure of sex in language and policy has a corrosive impact not just on women but on the validity of the entire American system.  Basing Federal policy on truth is critical to scientific inquiry, public safety, morale, and trust in government itself.

This unhealthy road is paved by an ongoing and purposeful attack against the ordinary and longstanding use and understanding of biological and scientific terms, replacing the immutable biological reality of sex with an internal, fluid, and subjective sense of self unmoored from biological facts.  Invalidating the true and biological category of “woman” improperly transforms laws and policies designed to protect sex-based opportunities into laws and policies that undermine them, replacing longstanding, cherished legal rights and values with an identity-based, inchoate social concept....

It is the policy of the United States to recognize two sexes, male and female.  These sexes are not changeable and are grounded in fundamental and incontrovertible reality....

Agencies shall remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages....

 The prior Administration argued that the Supreme Court’s decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act.  This position is legally untenable and has harmed women.  The Attorney General shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities....

School's Transgender Policy Does Not Violate Teacher's 1st Amendment Rights

In Polk v. Montgomery County Public Schools, (D MD, Jan. 17, 2025), a public-school substitute teacher alleged that a Maryland school system violated her free exercise and free speech rights when it insisted that she affirm Guidelines on dealing with transgender students. The Guidelines required her to refer to students by their preferred pronouns and barred them from discussing a student's gender identity with the student's parents without the student's consent. Plaintiff insisted that the Guidelines conflict with her religious beliefs. She also contended that under Title VII she is entitled to a reasonable accommodation of her beliefs. The court dismissed plaintiff's free exercise claim, finding that the Guidelines are neutral and generally applicable. It dismissed her free speech claim because the speech required by the Guidelines are part of plaintiff's official duties as a teacher. The court however, while refusing to issue a preliminary injunction, permitted plaintiff to move ahead on her Title VII failure to accommodate claim against the school board saying that the Board's undue hardship defense should be raised at the summary judgement stage of the proceedings rather than on a motion to dismiss.

Suit Challenges Wisconsin Tax Exemption as Violation of State Constitution's Ban on Preference to Religious Establishments

Suit was filed last week in a Wisconsin state trial court by the Freedom from Religion Foundation and three individual property owners challenging a Wisconsin property tax exemption tailored to only benefit two apartment buildings serving students at the University of Wisconsin-Madison. The buildings are owned by the Presbyterian Student Center Foundation and by a Catholic parish. The complaint (full text) in Gaylor v. City of Madison, (WI Cir. Ct., filed 1/14/2025), alleges that the exemption violates the equal protection and uniformity clauses of the Wisconsin state constitution, the state constitution's provision on private bills and the prohibition in Article I, section 18 of the Wisconsin Constitution which prohibits legislation that gives a preference to any religious establishment or mode of worship. Christian Post reports on the lawsuit.

Trump Designates New Acting Chair of EEOC

In one of the first actions taken after he was sworn in as President, Donald Trump designated new Chairmen and Acting Chairmen of 15 federal agencies. Among these was the designation of EEOC Commissioner Andrea R. Lucas to be Acting Chair of the Equal Employment Opportunity Commission. She replaces Charlotte A. Burrows who will remain a member of the Commission. The EEOC adjudicates claims of employment discrimination, including religious discrimination in employment.

6 Clergy Will Offer Prayers at Trump Inauguration Today

Donald Trump's inauguration as President begins at 11:30 AM Eastern Time today. The ceremony includes prayers offered by clergy from a variety of faiths. According to CBS News, opening invocations will be delivered by Timothy Cardinal Dolan, the Archbishop of New York and Christian evangelist Rev. Franklin Graham.

The ceremony will conclude with benedictions offered by four clergymen: Rabbi Dr. Ari Berman, president of Yeshiva University; Imam Husham Al-Husainy, a founder of the Dearborn, Michigan Karbalaa Islamic Education Center;  Pastor Lorenzo Sewell of 180 Church in Detroit, Michigan; and the Rev. Father Frank Mann of the Roman Catholic Diocese of Brooklyn, New York.

The inauguration ceremony will be streamed live by numerous news organizations, including PBS News livestream beginning at 10:30 AM Eastern Time.

Suit Challenges Federal Agency Rule Changes Protecting Against Gender Identity Discrimination

Suit was filed last week in a Louisiana federal district court challenging rule changes interpreting five federal statutes. Defendants are HHS, Department of Agriculture, EEOC and the Department of Justice. The rule changes define sex discrimination and sexual harassment as including discrimination or harassment on the basis of gender identity and define gender dysphoria as a disability. The complaint (full text) in Rapides Parish School Board v. U.S. Department of Health and Human Services, (WD LA, filed 1/17/2025), contends that the rule provisions are not authorized by the various statutes being implemented, are arbitrary and capricious and violate the Spending Clause of the Constitution. It also alleges that various of the rule provisions compel speech in violation of the First Amendment and are unconstitutionally vague. ADF issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

 From SSRN:

• Evangelos Venizelos, Religious Freedom for Muslims: A Challenge to the Historical Foundations and Resilience of European Constitutionalism, (June 15, 2023).
• Gader Wren, A Continued Sign of the Court’s Unwillingness to Overrule Smith, 7 Nev. L.J. Forum (2023).
• Gader Wren, The Establishment Clause: No Longer a Lemon, (100 U. Det. Mercy L. Rev. Online 1 (2023)).
• Gader Wren, Dobbs: A Powerful Opinion with Discrete Weaknesses, (Idaho Law Review Spotlight, Vol. 2 (2023), Iss. 1, Art. 2).
• Kate Redburn, The Equal Right to Exclude: Religious Speech and the Road to 303 Creative LLC v. Elenis, (December 18, 2023).
• Natasha Bakht & Lynda Margaret Collins, Notwithstanding the Notwithstanding Clause: A Case for Constitutional Guardrails on Section 33 of the Charter of Rights and Freedoms, (November 21, 2024).
• Carl H. Esbeck, Church Autonomy, Textualism, and Originalism: SCOTUS's Use of History to Give Definition to Church Autonomy Doctrine, (108 Marquette Law Review (forthcoming 2025)).
• Mark Storslee, History and the School Prayer Cases, (110 Va. L. Rev. 1619 (2024)).
• John Witte, Table Talks on Law & Religion, Canopy Forum, 2024 (forthcoming).
• John Witte, “Foreword,” to Walters-Sleyon, The Rush for Black Diamonds, (forthcoming).
• Jeffrey A. Van Detta, Heresies, Heretics, and Hermeneutics: The Battle of Textualism Against Pragmatism-And Itself-On the Roberts Court, (Belmont University College of Law Research Paper No. 2024-15).

From SSRN (Christian, Jewish, Buddhist and Islamic Law):

• Amit Kumar Ghosh, Tantric Union of Male and Female in Vajrayana, (November 25, 2024).
• Haseeb Fatima Saikhu, Inheritance Rights of Orphaned Grandchildren under Section 4 of Muslim Family Law Ordinance, 1961 and its Alternative Solutions, (Law and Policy Review, Volume 3, No. 2, Pp.21–42 (2024).
• Christopher Hampson, The Spirit of Jubilee, (University of Florida Levin College of Law Research Paper Forthcoming).
• John Witte, The Oxford Handbook of Christianity and Law, (Canopy Forum, 2024).
• Johari, et. al., The Role of Temporary Waqf in Improving the Social Welfare of the Muslim Community (November 26, 2024).
• Ihsan, Hidayatul Ihsan, et. al., Factors Affecting the Motivation of Prospective Waqifs to Endow Insurance in Indonesia, (International Journal of Scientific and Management Research, volume 07, issue 11, 2024).
• Hidayatul Ihsan, Firman Surya, Eliyanora & Nurul Hafizah, A Digital Transformation in Waqf Management: Leveraging Microsoft Access for Financial Accountability, (International Journal of Scientific and Management Research, volume 07, issue 11, 2024).

National Guard Officer Sues After Dismissal for His Religion-Based Anti-LGBTQ Views

Suit was filed last week in an Idaho federal district court by an Idaho National Guard officer who was removed from a command position that he had just assumed because of his Christian religious views on sexuality that he had expressed during his previous campaigns for mayor and state senator. The complaint (full text) in Worley v. Little, (D ID, filed 1/17/2025), reads in part:

74. The Investigating Officer stated, in his findings, that Major Worley had “well documented discriminatory views against the LGBTQ community” that “suggest an inability to uphold the values of equality, respect, and impartiality expected of a company commander.”...

75.... In addition to his unconstitutional and unconscionable findings as it relates to Major Worley’s religious beliefs, views, expression, and exercise, the Investigating Officer also recommended to Defendants that they institute a “No Christians in Command” Policy. ...

The complaint alleges that this violates plaintiff's free speech, free exercise and equal protection rights.

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

Cert. Granted on Whether Opt-Out is Required When Parent Objects on Religious Grounds to Public School Curricular Material

Yesterday the U.S. Supreme Court granted review in Mahmoud v. Taylor, (Docket No. 24-297, certiorari granted 1/17/2025). (Order List.) The question presented to the Court in the Petition for Certiorari is:

Do public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out?

In the case, the Montgomery County, Maryland Board of Education adopted certain LGBTQ-Inclusive Books as part of a larger array of books for use by English Language Arts teachers. An initial arrangement allowing parents to opt their children out of exposure to these books was ended by the Board.

The U.S. 4th Circuit Court of Appeals in a 2-1 decision held that a free exercise violation occurs only when there is some sort of direct or indirect pressure to change religious beliefs or conduct, and that mere presence in the classroom when these materials may be read does not create that kind of coercion. (See prior posting.) 

CBS News reports on the Court's action.

United Nations Releases Plan to Respond to Antisemitism

Today the High Representative for the United Nations Alliance of Civilizations announced the launch of the United Nations Action Plan to Enhance Monitoring and Response to Antisemitism. The Action Plan (full text) sets out a list of steps that the United Nations itself should take to combat antisemitism.  It also sets out recommendations to governments, international organization and non-state actors. The 22-page Plan says in part:

Antisemitism is a global challenge that requires a coordinated global response. The United Nations cannot stamp-out the scourge of antisemitism and other forms of discrimination and bigotry alone. State and non-state actors including civil society organizations, faith actors, social media companies, educators and many others, each have a role to play. In an interconnected world, where hate respects no borders, transnational cooperation can identify threats, raise awareness, broaden the use of best practices, and more effectively and proactively coordinate responses.

2 Reports Survey the State of Religious Liberty in the U.S. in 2024

Two broad reviews of the state of religious liberty in the United States were released yesterday. Becket Fund for Religious Liberty released the 6th edition of its Religious Freedom Index: American Perspectives on the First Amendment (full text). The 119-page report is based on an online poll of a nationally representative sample of 1000 American adults conducted by an independent research company. The report says in part:

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 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....

 Across multiple questions in our Index, one message rings loud and clear: Americans deeply value their First Amendment freedoms, even in the face of tough, controversial issues....

We are pleased to report that political division did not seem to negatively impact Americans’ convictions about the importance of religion and religious liberty....  Americans also report being more accepting of people of faith and more appreciative of their contributions than ever before. Encouragingly, both people of faith as a whole and non-Christian people of faith reported feeling more accepted in society than in 2023.

The U.S. Conference of Catholic Bishops yesterday released its 2025 annual report on The State of Religious Liberty in the United States (full text) (Executive Summary). The 83-page Report, which reviews developments at the national level in 2024 in Congress, the Courts and the Executive Branch, says in part:

... [B]ecause control of the two chambers of Congress was divided, most bills that threatened religious liberty—that is to say, immunity from coercion in religious matters—did not move forward. Legislation aiming to increase access to in vitro fertilization (IVF) was introduced in 2024. The most significant threats to religious liberty at the federal level came in the form of finalized regulations by federal agencies, such as the Section 1557 rule, which implements the nondiscrimination provision of the Affordable Care Act (ACA). These rules heavily focused on imposing requirements regarding abortion, sexual orientation, and gender identity....

The five areas of critical concern—threats and opportunities—for religious liberty are:

• The targeting of faith-based immigration service

• The persistence of elevated levels of antisemitic incidents 

• IVF mandates, which represent a significant threat to religious freedom, while the national discussion of IVF represents an opportunity for Catholics to share Church teaching and advocate for human dignity

• The scaling back of gender ideology in law

•  Parental choice in education, one of the longest-running areas of concern for American Catholics

Court Dismisses Some Challenges To ED Rule Protecting Student Religious Organizations

In Secular Student Alliance v. U.S. Department of Education, (D DC, Jan. 15, 2025), plaintiffs challenged a rule promulgated by the Department of Education in 2020. The rule prohibits universities receiving Education Department grants from denying any student religious organization any right, benefit or privilege available to secular groups because of the religious organization's "beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs." The D.C. federal district court dismissed two of plaintiff's claims: that the rule was ultra vires agency action and that it was in excess of the agency's statutory authority under the Administrative Procedure Act. The court held that a "sense of Congress" provision in 20 USC §1011a which says that no college student should be excluded from participation in any activity because of the student's protected speech or association, does not impose a limitation on the Department's rulemaking. The court said that the phrase is "a suggestive guideline, rather than a mandatory limitation...." The court left open to still be decided "whether the Rule is arbitrary and capricious, an abuse of the agency discretion, or otherwise not in accordance with law...." ADF issued a press release commenting on the decision.