Religion Clause

Tuesday, January 28, 2025

Executive Orders Call for Military Reinstatement of Vaccine Objectors, Military Exclusion of Transgender Individuals

Yesterday, President Trump issued an Executive Order titled Reinstating Service Members Discharged Under the Military's Covid-19 Vaccination Mandate (full text). The Order reads in part:

The vaccine mandate was an unfair, overbroad, and completely unnecessary burden on our service members. Further, the military unjustly discharged those who refused the vaccine, regardless of the years of service given to our Nation, after failing to grant many of them an exemption that they should have received. Federal Government redress of any wrongful dismissals is overdue.

The Executive Order calls for reinstatement with back pay for those who left the service rather than be vaccinated. Many service members who refused vaccination did so on religious grounds.

Yesterday, the President also issued an Executive Order titled Prioritizing Military Excellence and Readiness (full text) which ordered the military to revise its Medical Standards for Military Service to exclude transgender individuals from service in the military. The Executive Order reads in part:

Consistent with the military mission and longstanding DoD policy, expressing a false “gender identity” divergent from an individual’s sex cannot satisfy the rigorous standards necessary for military service. Beyond the hormonal and surgical medical interventions involved, adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life. A man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member....

It is the policy of the United States Government to establish high standards for troop readiness, lethality, cohesion, honesty, humility, uniformity, and integrity. This policy is inconsistent with the medical, surgical, and mental health constraints on individuals with gender dysphoria. This policy is also inconsistent with shifting pronoun usage or use of pronouns that inaccurately reflect an individual’s sex.

Quaker Organizations Sue Over New Immigration Enforcement Policy

Yesterday three organizations of Quaker congregations along with two individual congregations filed suit in a Maryland federal district court challenging the Department of Homeland Security's recent change in policy that allows immigration agents to conduct enforcement operations in houses of worship and at religious life-cycle ceremonies. The complaint (full text) in Philadelphia Yearly Meeting of the Religious Society of Friends v. U.S. Department of Homeland Security, (D MD, filed 1/27/2025), alleges that the policy change violates the Religious Freedom Restoration Act, the 1st Amendment's protection of expressive association and the Administrative Procedure Act. The complaint alleges in part:

89. A diversity of worshippers is an essential component of the Quaker value of “experience[ing] God in a broader, more encompassing way,” as “one’s life experience affects how one hears the spirit and what conclusions one might draw.”... Deterring immigrants from worshipping in-person with a Quaker meeting would therefore directly interfere with Plaintiffs’ religious exercise by lessening their “ability to hear God and what God is trying to tell [them].” ...

90. Moreover, Plaintiffs’ Quaker beliefs make it essential that they “encourage others for whom [that] path is meaningful to join.”... But DHS’s new policy, by opening meeting houses to immigration-enforcement activities, inhibits Plaintiffs from doing just that.... Knowingly putting a person in harm’s way or subjecting them to the possibility of a violent encounter with an armed law-enforcement officer would violate Quaker beliefs in peace and nonviolence....

91. Quakers have held a religious commitment against violence for hundreds of years.... For many Quakers, “[t]he presence of a weapon in a Quaker meeting would be absolutely unacceptable.”... The presence of armed immigration officers at meeting houses—which the new policy allows—would thus significantly hamper Plaintiffs’ ability to exercise their faith.... Importantly, even the threat of armed government agents at meeting houses—which has existed since the moment DHS announced its new policy—does the same.

Axios reports on the lawsuit.

Trump Takes Actions to Limit Federal Funding of Abortions

On January 24, President Trump issued an Executive Order (full text) titled Enforcing the Hyde Amendment. The Hyde Amendment bars federal funding of elective abortions. The Executive Order revokes two Executive Orders issued by President Biden: Executive Order 14076: Protecting Access to Reproductive Health Care Services and Executive Order 14079: Securing Access to Reproductive and Other Healthcare Services. (See prior posting.) President Trump also signed a Presidential Memorandum (full text) reinstating a 2017 Memorandum which enforced the Mexico City Policy -- a policy that has been enforced by Republican Administrations since 1985 and suspended by Democratic Administrations since then. The Policy is described by Wikipedia as follows:

The policy requires non-governmental organizations to "agree as a condition of their receipt of [U.S.] federal funds" that they would "neither perform nor actively promote abortion as a method of family planning in other nations". The policy has exceptions for abortions performed in response to rape, incest, or life-threatening conditions.

The Memorandum also directs the State Department to ensure that federal funds do not go to organizations or programs that support coercive abortion or involuntary sterilization.

The Trump White House issued a Fact Sheet titled President Donald J. Trump Enforces Overwhelmingly Popular Demand to Stop Taxpayer Funding of Abortion describing the President's actions.

Monday, January 27, 2025

Today Is International Holocaust Remembrance Day

As designated by the United Nations, today is International Holocaust Remembrance Day. January 27 was chosen because it is the anniversary of the liberation of the Auschwitz-Birkenau concentration and extermination camps by Soviet troops in 1945. U.N. Secretary General António Guterres issued a Message (full text) today marking the anniversary, saying in part:

Eighty years since the Holocaust’s end, antisemitism is still with us – fuelled by the same lies and loathing that made the Nazi genocide possible. And it is rising. Discrimination is rife...

Hate is being whipped-up the world over… Indisputable historical facts are being distorted, diminished, and denied… And efforts are being made to recast and rehabilitate Nazis and their collaborators. We must stand up to these outrages.

In these days of division – and more than a year since the appalling 7th October terror attacks by Hamas – we must hold fast to our common humanity. We must condemn antisemitism – just as we must condemn all forms of racism, prejudice and religious bigotry. And we must renew our resolve to defend the dignity and human rights of all. Those causes go to the very core of the United Nations. We will never forget – and we will never waver in that fight.

Saturday, January 25, 2025

Pardons and Policy Changes Limit Use of FACE Act Against Abortion Protesters

On Thursday, President Trump granted full and unconditional pardons to 23 defendants who were convicted of violations of the Freedom of Access to Clinic Entrances Act. (Full text of Pardon document.) The pardons which were issued a day before the annual January 24 March for Life in Washington D.C. cover defendants in five separate cases: United States v. Handy (blockade of a Washington, D.C. abortion clinic); United States v. Gallagher (barricading of a clinic in Mt. Juliet, Tennessee); United States v. Zastrow, (blockading of abortion clinics in Sterling Heights and Saginaw, Michigan); United States v. Williams (Blocking entrance to Manhattan Planned Parenthood Clinic); United States v. Moscinski (blocking access to Hempstead, N.Y. Planned Parenthood Clinic). AP reports on the pardons.

The Trump Administration also took steps to limit future prosecutions under the Freedom of Access to Clinic Entrances Act. AP reports that a memo sent by the Attorney General's Chief of Staff, Chad Mizelle, to the head of the Civil Rights Division orders dismissal of three pending cases growing out of 2021 clinic blockades in Tennessee, Pennsylvania and Ohio. The memo also says that future prosecutions or civil actions under FACE Act will only be permitted in extraordinary circumstances or in cases presenting significant aggravating factors. Mizelle called prosecutions against anti-abortion protesters a weaponization of law enforcement because few prosecutions were brought against attacks on crisis pregnancy centers and other pro-life organizations.

Supreme Court Grants Cert. In Oklahoma Publicly-Funded Catholic Charter School Case

The U.S. Supreme Court yesterday granted review in Oklahoma Virtual Charter School Board v. Drummond, (Docket No. 24-394, certiorari granted 1/24/2025) (Certiorari petition.) It also granted review in St. Isidore of Seville Virtual Charter School v. Drummond, (Docket No. 24-396, certiorari granted 1/24/2025), which was a separate petition filed by and Intervenor in the same case. (Order List.) The petitions were consolidated for oral argument. In the cases, the Oklahoma Supreme Court held that the state Charter School Board's authorization of a Catholic-sponsored publicly-funded charter school violates Oklahoma statutes, the Oklahoma Constitution and the First Amendment's Establishment Clause. (See prior posting.) The petitions for review contend that exclusion of religious schools from the state's charter school program violates the 1st Amendment's free exercise clause despite Establishment Clause concerns, and that religious instruction by a state-funded charter school does not constitute state action. Links to filings in the cases and other materials can be found at the SCOTUSblog case pages here and here. Politico and NBC News report on the Court's action.

Friday, January 24, 2025

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.

Thursday, January 23, 2025

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.

Wednesday, January 22, 2025

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.

Tuesday, January 21, 2025

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.

Monday, January 20, 2025

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.