Recent Articles and Reports of Interest

From SSRN:

• Bethany Berger & Chloe Scherpa, Mohegan Women, the Mohegan Church, and the Lasting of the Mohegan Nation, (June 12, 2022).
• Cherian George, Analytical and Normative Frameworks for Studying Religious Nationalism, (May 30, 2022).
• Mark Friedman & Anthony Sangiuliano, Limiting Rights to Protect Morality: Upholding Charter Values as a Pressing and Substantial Objective, (Review of Constitutional Studies, vol. 26, no. 1 (2022)).
• Dustin N. Sharp, A Larger 'We'; Social Change and Spirituality in an Identitarian Age, (June 10, 2022).
• Taimoor Ali Shah, The Concept of Law, Justice and Morality in Islamic and Western Jurisprudence, (June 7, 2022).
• Muhammad Munir, Dower in Islamic Law and Pakistani Legal System, (June 2, 2022).

From elsewhere:

• ADL Report, Hate in the Empire State: Extremism & Antisemitism in New York, 2020-2021.

Iowa Supreme Court Overrules 2018 Decision That State Constitution Strongly Protects Abortion Rights

In a complicated set of opinions that span 182 pages, the Iowa Supreme Court overruled their own 2018 decision (referred to in the opinion as "PPH II") and held by a vote of 5-2 that neither the due process nor the equal protection clause of Iowa's constitution grants a fundamental right to an abortion. It thus rejected subjecting abortion regulation-- here a new 24-hour waiting period-- to strict scrutiny under the state Constitution. However the court did not decide what level of scrutiny should apply.  This left the standard to be the undue burden test imposed by federal law. In Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Sup. Ct., June 17, 2022), Justice Mansfield's majority opinion said in part:

[Law] professors [in an amicus brief] urge that adhering to a precedent when the membership of a court changes “refutes the cynical view that a supreme court is a political institution guided by the justices’ personal values, rather than the law.” But we know that the professors do not share that cynical view, so why do they ask us to act in fear of it? Shouldn’t we instead follow our solemn oaths to uphold the Iowa laws and constitution? In the end, court decisions should be—and we believe are—judged by the strength of their reasoning, not by the identity of the persons who wrote or joined them....

Constitutions—and courts—should not be picking sides in divisive social and political debates unless some universal principle of justice stands on only one side of that debate. Abortion isn’t one of those issues....

In summary, PPH II lacks textual and historical support. It is doctrinally inconsistent with prior Iowa jurisprudence concerning family rights that followed a balancing approach. Its rhetoric is one-sided. Its constitutional footing is unsound. While it is true that some other states have provided heightened protection for abortion rights, they have done so by invoking more relevant substantive constitutional guarantees—such as the right of privacy—not a procedural clause like due process.....

While 5 Justices concurred in that conclusion, 2 of those Justices in an opinion by Justice McDermott disagreed with the instructions on remand given in Justice Mansfield's opinion, saying in part:

I join almost all parts of the court’s opinion, including...  its overruling of ... PPH II.... But I dissent from my colleagues’ remand directing the district court to apply an “undue burden” standard, subject (apparently) to the standard being “litigated further” by the parties. In my view, we should emphatically reject—not recycle—Casey’s moribund undue burden test and instead direct the district court to apply the rational basis test to the plaintiffs’ constitutional challenge.

Chief Justice Christensen filed an opinion dissenting in part, saying: 

Out of respect for stare decisis, I cannot join the majority’s decision to overrule ... PPH II ... because I do not believe any special justification “over and above the [majority’s] belief ‘that the precedent was wrongly decided’ ” warrants such a swift departure from the court’s 2018 decision....

Since 2018, the makeup of our court has significantly changed with the appointment of four new justices to replace outgoing justices. Coincidentally, all four outgoing justices were part of the 5–2 majority that recognized a fundamental right to decide whether to continue or terminate a pregnancy in the 2018 case.

Justice Appel, who is the only Justice on the court who was part of the majority in 2018, filed an 88-page dissent, concluding in part:

The majority has chosen to simply rule that strict scrutiny is not the applicable test of a statute regulating abortion ... and has remanded the case to the district court for further consideration of other issues. The problem with this approach is twofold. First, the majority opinion grossly understates the importance of this life-changing abortion decision on women. Second, the majority opinion eliminates a strong, workable, and widely accepted barrier to governmental intrusion into the reproductive choices of a woman and invites us to stare into the standard-less abyss....

I have some thoughts to seek to salvage what can be salvaged from the decision. First, the district court must recognize the rights primacy of the Iowa Constitution and reject summarily a rational basis test, which is too often no test at all. Second, if a version of the undue burden test is to be adopted, it must be with teeth.

Des Moines Register reports on the decision. [Thanks to Scott Mange for the lead.]

Ecclesiastical Abstention Doctrine Bars Mississippi Courts From Adjudicating Claims Of Fired Diocese Finance Officer

In Catholic Diocese of Jackson, Mississippi v. DeLange, (MS Sup. Ct., June 16, 2022), the Mississippi Supreme Court held that the ecclesiastical abstention doctrine prevents Mississippi courts from adjudicating wrongful termination, defamation and infliction of emotional distress claims brought by the former Finance officer of the diocese.  Plaintiff was given several reasons for his termination by the bishop. Under the Code of Canon Law, the Finance officer can be removed only for "grave cause." Plaintiff claimed that the reasons given for his termination were false. The court said in part:

 ... de Lange argues that his request merely asks a court to determine the truthfulness of the reasons given by the Diocese for his termination. De Lange insists that a civil court will not be required to interpret the Code of Canon Law. We disagree.

Even if the Diocese’s reasons were found to be based on falsehoods, and we are making no such determination, a reason existed for de Lange’s termination. That is, there was some reason for his termination, whether it is one of the reasons cited by the Diocese or, perhaps, it is simply the apparent incompatibility that existed between de Lange and Bishop Kopacz. Whatever that reason may be and regardless of the strength of that reason, the request that de Lange now makes ... would ultimately require judicial interpretation of what constitutes “grave cause” under the Code of Canon Law....  Such an interpretation is off limits for a civil court to make.

Parents' Group Says Infrastructure Appropriations To Private Schools Violate Mississippi Constitution

A parents' organization has filed suit in a Mississippi state trial court challenging two Mississippi laws that together appropriate $10 million for grants to private or nonpublic schools for water, sewer and broadband infrastructure projects.  The appropriated funds come from federal Coronavirus State Fiscal Recovery Funds received under the American Rescue Plan. The complaint (full text) in Parents for Public Schools v. Mississippi Department of Finance and Administration, (MS Chancery Ct., filed 6/15/2022), contends that the Mississippi laws violate Section 208 of the Mississippi Constitution that provides:

No religious or other sect or sects shall ever control any part of the school or other educational funds of this state; nor shall any funds be appropriated toward the support of any sectarian school, or to any school that at the time of receiving such appropriation is not conducted as a free school.

The Mississippi ACLU issued a press release announcing the filing of the lawsuit. 

9th Circuit Hears Oral Arguments In Tribe's Challenge To Geothermal Project

On Wednesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Fallon Paiute-Shoshone Tribe v. U.S. Department of the Interior (video of full oral arguments). In the case, in a January 14, 2022 opinion (full text) a Nevada federal district court, among other things, rejected a claim by the Fallon Paiute-Shoshone Tribe that construction of a geothermal facility will violate their rights under the Religious Freedom Restoration Act. The district court held that plaintiffs' claim that the project destroys the Tribe's ability to exercise its religious traditions is not enough to amount to a "substantial burden" on religious exercise. Desecration of a sacred area does not coerce Tribe members to act contrary to their religion. A conservation organization is also a plaintiff in the case. (See prior related posting.)  Nevada Current reports on this week's oral arguments.

President Issues Executive Order On Equality For LGBTQI+ Individuals

President Biden yesterday issued an Executive Order on Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals. (Full text). The Order sets out a long list of initiatives to be undertaken by various Cabinet departments and federal agencies. These include using federal authority to counter state laws which limit access to medically necessary care, reducing the risk of exposure to conversion therapy, and strengthening non-discrimination protections.  The Order also focuses on support for LGBTQI+ individuals in schools, housing programs, family counseling and health care.

Yeshiva University Must Recognize LGBTQ Student Group

In YU Pride Alliance v. Yeshiva University, (NY Cty. Sup.Ct., June 14, 2022), a New York state trial court held that New York City's public accommodation law requires Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance.  The University must immediately grant the organization the full and equal treatment accorded to other student organizations.  The court rejected the University's claim that it is exempt from coverage under the definitions in NY Admin Code §8-102 which excludes from coverage a "religious corporation incorporated under the education law."  While Yeshiva University is incorporated under the education law, according to the court:

Yeshiva's organizing documents do not expressly indicate that Yeshiva has a religious purpose. Rather, Yeshiva organized itself as an "educational corporation" and for educational purposes, exclusively.... [T]he inquiry must focus on the purpose of the institution, which is typically expressed in a corporation's organizing documents. There may be schools organized under the education law that have a stated religious purpose so that they are exempt.... Since Yeshiva has not done so, the court does not need to reach this issue.

The court went on to hold that applying the public accommodation provisions of the New York City Human Rights Law to Yeshiva does not violate its First Amendment free exercise or free speech rights, saying in part:

Assuming arguendo that Yeshiva's refusal to recognize an LGBTQ student group is part of its exercise of religion, the NYCHRL's impact on Yeshiva's exercise of religion is only incidental to the NYCHRL's ban on discrimination. There can be no dispute that the NYCHRL is a neutral law of general applicability. It does not target religious practice....

... Yeshiva's Free Speech rights will not be violated by application of the NYCHRL. Formal recognition of a student group does not equate with endorsement of that group's message....

Washington Examiner reports on the decision.

New Jersey Township Settles RLUIPA Zoning Case With DOJ

The Department of Justice announced yesterday that a proposed Consent Order (full text) has been filed with a New Jersey federal district court in United States v. Township of Jackson, (D NJ, filed 6/15/2022). According to the Justice Department:

[The order] would resolve a lawsuit the United States filed in May 2020 alleging that the Township and Planning Board passed zoning ordinances that broadly prohibited religious schools and banned schools with dormitories, both of which are important to providing religious education within the Orthodox Jewish community. The complaint alleged that the intent of the ordinances was to prevent Orthodox Jewish schools from opening in the Township and thereby dissuade members of that community from living in or moving to Jackson....

The consent order requires Jackson Township to repeal the remaining active discriminatory ordinance and replace it with an ordinance that will allow religious elementary and secondary schools, religious higher learning institutions and religious residential schools. The consent order also requires that the new zoning ordinance treat religious schools equally with non-religious institutions that operate in the Township.

Also, the Township must pay a $45,000 civil penalty and pay $150,000 into a settlement fund.

Meat Processor Is Not State Actor In Requiring COVID Vaccination of Employees

In Reed v. Tyson Foods, Inc., (WD TN, June 14, 2022), a Tennessee federal district court dismissed plaintiffs' claims that their rights under RFRA and free exercise clause were violated when their employer required them to be vaccinated against COVID.  The court held that plaintiffs were not state actors, even though the President had invoked the Defense Production Act and instructed meat and poultry procession plants to continue operations.  The court said in part:

Plaintiffs contend that Defendant acted as an “agent of the government … by imposing strict worker vaccination rules to (in the estimation of the federal government), in order to preserve the integrity of the national food supply.”... However, no facts are pled that would enable the Court to find a sufficient nexus between Defendant’s vaccine policy and the involvement of the Government. The mere fact that Defendant relied on OSHA and CDC guidance in formulating its vaccine policy does not make Defendant an “agent of the government.” Nor does the fact that Defendant is subject to the federal government’s COVID-19 guidance for meat and poultry plants convert Defendant into a government actor.

The court also dismissed several other, but not all, of plaintiffs' additional claims.

Synagogue Sues In Challenge To Florida's Restrictive Abortion Law

Suit was filed last week in a Florida state trial court by a Palm Beach County synagogue challenging Florida's recently enacted 15-week abortion ban. The complaint (full text) in Generation to Generation, Inc. v. Florida, (FL Cir. Ct., filed 6/10/2022) contends that the law violates the free exercise, establishment, right to privacy, due process and equal protection provisions of the Florida Constitution.  The complaint alleges in part:

40. Some women, such as the members, congregants, supporters of Plaintiff L’Dor Va-Dor and their families have an abortion because it is required by their religious faith.  For Jews, all life is precious and thus the decision to bring new life into the world is not taken lightly or determined by state fiat.  In Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act.  As such, the Act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom.....

71. The Jewish people have often borne the brunt of the horrors that occur when the power of Christianity has merged with the power of the state.  The result has been Inquisitions, Crusades, ghettoes and pogroms for the Jews and the eventual loss of freedom for everyone else.... 

72.  The architects of the Act have taken a first step towards the dismantling of that wall and returning the state of Florida and our nation back to a time when the merger of Christianity and government produced genocide, slavery, misogyny, and the denial of equal rights and in many cases, any rights at all to those who did not share the gender, race or religion of those in power.

Jews for a Secular Democracy issued a press release announcing the filing of the lawsuit.

German Federal Court Refuses To Order Removal Of Medieval Antisemitic Sculpture

As reported by AP, Germany's Federal Court of Justice yesterday refused to order a Wittenberg church where Martin Luther once preached to remove a 730-year old antisemitic sandstone relief carved on the outside of the church. The sculpture is known as the "Judensau" or "Jew pig".  A display explaining the history of antisemitism in Germany was added in 1988. While the full opinion is not yet online, the Court issued a press release summarizing the Court's decision. The press release describes the sculpture:

It shows a sow whose teats are being suckled by two people who are identified as Jews by their pointy hats. A person, who can also be identified as a Jew by his hat, lifts the sow's tail and looks into her anus. In 1570, the inscription "Rabini Shem Ha Mphoras" was placed over the sow, based on two anti-Judaist writings published by Martin Luther in 1543.

The press release also summarizes the Court's holding that while the sculpture was originally "massively defamatory," a bronze base and and a nearby display added in 1988 remedied the situation:

From the authoritative point of view of an unbiased and reasonable observer, it has ... converted [the sculpture] into a memorial for the purpose of commemoration and remembrance of the centuries-long discrimination and persecution of Jews up to the Shoah and distanced itself from the defamatory and anti-Jewish statement - as expressed in the relief when viewed in isolation.

State Department Issues International Religious Freedom Report

On June 2, the State Department issued its annual Report to Congress on International Religious Freedom.  Issued in accordance with the International Religious Freedom Act of 1998, the Report describes the status of religious freedom in nearly 200 foreign countries. The 2000-page Report is available on the State Department's website only in a format that allows the reader to choose one country at a time and read the report on that nation.  Appendices to the Report, also available on the website, give additional information on the legal framework that attempts to assure religious freedom internationally. Secretary of State Blinken and Ambassador At Large for International Religious Freedom Rashad Hussain delivered remarks (full text) on the release of the Report, highlighting issues in a number of  nations.  Ambassador Hussain said in part:

I’d like to lay out three key themes in the report.

First, too many governments use discriminatory laws and policies and abuse their own people. We have seen two genocides of religious minority communities in recent years – in China and in Burma.

Second, rising societal intolerance and hatred are fueling violence and conflict around the world. Governments must not sit silent or stand idly by in the face of such oppression.

Third, powerful collaboration among civil society, governments, and multilateral partners has led to some progress and provides hope in addressing these complex challenges.

European Court: Lithuania Should Have Provided Civilian Service Alternative To Jehovah's Witness

In Teliatnikov v. Lithuania, (ECHR, June 7, 2022), the European Court of Human Rights in a Chamber Judgment held that Lithuania violated Article 9 (freedom of thought, conscience and religion) of the European Convention On Human Rights when it refused to grant a Jehovah's Witness deacon alternative service under civilian control. The petitioner has religious objections to military service or any alternative service controlled, supervised or directed in any way by the military, or which supports military activity. Lithuania only provides alternative national defense service under military supervision. The court concluded:

the Court finds that the system in Lithuania failed to strike a fair balance between the interests of society and those of the applicant who has deeply and genuinely held beliefs.

The court also issued a press release summarizing the decision.

Title VII 90-Day Right To Sue Runs From Receipt Of Email, Not From Opening It

In Paniconi v. Abington Hospital- Jefferson Health, (ED PA, May 24, 2022), plaintiff, a 62-year-old white woman and a born-again Christian had filed a race and religious discrimination claim against her employer with the EEOC.  The EEOC sent both plaintiff and her attorney a right-to-sue letter on Sept. 8, 2021, but sent it through an e-mail which merely told the recipients to check their EEOC portal for an important document.  The e-mail to the attorney did not list the client's name or indicate that the important document was a right-to-sue letter. Title VII requires suit to be filed within 90 days after receipt of the right-to-sue letter.  Plaintiff's attorney did not access the portal or download the letter until Sept. 13.  Suit was filed on December 8, which is 91 days after receipt of the e-mail.  The court dismissed the suit, rejecting the argument that the 90-day period should run from the date the attorney accesses the portal and downloads the letter. Instead it held that the 90-day period runs from the date the e-mail reaches the attorney's inbox. JD Supra reports on the decision.

10th Circuit Affirms Dismissal Of Church's Complaint Regarding Sending Of Material To Inmates

 In Colorado Springs Fellowship Church v. Williams, (10th Cir., June 13, 2022), the U.S. 10th Circuit Court of Appeals rejected a church's challenge to prison rules that barred it from sending DVD's directly to inmates. Religious organizations could only send religious materials to the Bureau of Prisons which would them make them available to all inmates. The district court had dismissed the church's Establishment Clause claim. On appeal, the court refused to consider the church's argument that the Turner standard does not apply to free speech and free exercise claims brought by non-prisoners because the church had not made that argument to the district court below. The church had also failed to allege that it was treated differently than other religious groups.

11th Circuit: Jail's Procedure For Passover Participation Is Upheld

In Dorman v. Chaplain's Office BSO, (11th Cir., June 10, 2022), the U.S. 11th Circuit Court of Appeals upheld the procedures used by the Broward County, Florida jail that required inmates to register 45 days in advance in order to participate in Passover services and meals.  The court said in part:

First, the 45-day registration requirement did not constitute a substantial burden on Mr. Dorman’s exercise of his Jewish faith under the RLUIPA, and therefore it also did not violate the First Amendment’s more lenient reasonableness standard. Second, the electronic posting of the 45-day registration requirement on the Jail’s computer kiosk, which he and other inmates used to communicate with Jail staff, provided adequate notice of the registration requirement to satisfy due process.

Recent Articles of Interest

From SSRN:

• Katharine Young, Book Review: Adam Chilton and Mila Versteeg, How Constitutional Rights Matter, New York: Oxford University Press, 2020, (Journal of Legal Education Vol. 70, No. 1 (Fall 2020)).
• Mingyu Jun, The Best Interests of Children Overlooked: Should Faith Based Agencies Be Forced Out?, (CSLR Research Paper No. 2.2022-ESS (2022)).
• Abdullahi Ahmed An-Na'im, Autobiographical Reflections,  (Emory International Law Review 36, No. 4 (2022)).
• Alexis Ahlzadeh, Prisoner’s Religious Exercise Rights (or Lack Thereof) under RLUIPA: The Search for a Workable Standard,  (CSLR Research Paper No. 2.2021-ESS (2021).
• Silas W. Allard, A Constellation of Foundings: Chae Chan Ping, Chinese Exclusion, and the Making of America, (CSLR Research Paper No. 9.2022-AFF (2022).
• Franciszek Longchamps de Berier & Rafael Domingo Osle, Introduction to Law and Christianity in Poland: The Legacy of the Great Jurists, (May 29, 2022).
• Samuel Weaver, Protecting Unbelief: Restoring Section Five of Kentucky's Constitution, (Kentucky Law Journal, Vol. 110, No. 1, 2021).
• Mustapha Abdullah Kuyateh, Assessing the Relevance of a Muslim Family in the Modern Environment: A Review, (June 2, 2022).

From SSRN (Abortion Rights):

• Ellis Adler, The Alabama Human Life Protection Act: A Jewish Law Perspective, (CSLR Research Paper No. 1.2021-ESS (2021).)
• Henry (Hank) T. Greely, The Death of Roe and the Future of Ex Vivo Embryos, (J. Law & Biosciences, 9(1) (Forthcoming summer 2022)).
• Benjamin Davis, Sanctimonious Barbarity: The Forced Pregnancy Alito Draft, (May 23, 2022).
• Greer Donley & Jill Wieber Lens, Abortion, Pregnancy Loss, & Subjective Fetal Personhood, (Vanderbilt Law Review, Vol. 75, Forthcoming).

From SSRN (International Human Rights):

• Aditi Mohapatra, Nabanita Pattanayak & Pallavi Panda, Loving Without Boundaries: The Struggle For Same-Sex Marriage Equality On An International Level, (Indian Journal of Law and Legal Research, Volume IV Issue II (2022)).
• Juan Pablo Perez Leon Acevedo & Thiago Felipe Alves Pinto, Disentangling Law and Religion in the Rohingya Case at the International Criminal Court, ((2021) 39:4 Nordic Journal of Human Rights 458-480).
• Shadrack Bentil, Soft Violence: Wicked Hurdles Driving Systemic Discrimination Against Rohingya Children in Myanmar?, (June 1, 2022).
• Stephen A. Rosenbaum, 'Legal Capacity' Under the UN Convention on the Rights of Persons with Disabilities: In Support of Supported Decision-Making, (Forthcoming, 3 Islamic Studies on Human Rights & Democracy _ (2022)).

From SmartCILP:

• Rosalind Dixon, Strong Courts: Judicial Statecraft in Aid of Constitutional Change, 59 Columbia Journal of Transnational Law 298-363 (2021).
• Jonathan K. Van Patten, The Trial of John Scopes, 66 South Dakota Law Review 273-337 (2021).

Challenges To New Jersey's Assisted Suicide Act Are Rejected

In Petro v. Platkin, (NJ App., June 10, 2022), a New Jersey state appellate court dismissed constitutional challenges to New Jersey's Medical Aid in Dying for the Terminally Ill Act.  It held the plaintiffs-- a terminally ill resident, a physician and a pharmacist-- lack standing because their participation in the procedures permitted by the Act are completely voluntary.  The court also rejected claims that the statute violates the "single object" requirement of the state constitution or state constitutional provisions on the right to enjoy and defend life. It also rejected 1st Amendment free exercise claims, finding that the statute is a neutral law of general applicability.

Christian Mission's Suit Over Sex Offender Statute Is Moot

In City Union Mission, Inc. v. Sharp, (8th Cir., June 10, 2022), the U.S. 8th Circuit Court of Appeals affirmed the dismissal of a suit brought by an organization that offers meals, shelter and a Christian Life Program for men seeking help with life skills and addiction. At issue was whether a state statute barring sex offenders from being present or loitering within 500 feet of a children's playground is constitutional. The court held that the statute does not apply to the Mission because it does not allege that its clients are loitering when they are receiving services. Therefore its suit seeking an injunction is moot.  Its claim for damages against the former sheriff who enforced the statute were dismissed on qualified immunity grounds. The court said in part:

we can find no “controlling case” or “robust consensus of cases of persuasive authority” that would have notified Sheriff Sharp that Affected Persons had a clearly established right to seek City Union Mission’s services in a building located within 500 feet of a park containing playground equipment.

Judge Kobes filed a concurring opinion.

School Lacks Standing To Sue For Students' and Parents' Distress From Anti-Abortion Pickets

In Nicdao v. Two Rivers Public Charter School, (DC Ct. App., June 9, 2022), the District of Columbia's local Court of Appeals held that a school's suit for intentional infliction of emotional distress should be dismissed for lack of standing.  At issue was intrusive protests by three individuals who were opposing the construction of a Planned Parenthood clinic next door to the school.  The court held that the school lacked third-party standing to sue on behalf of parents and students who were injured. Financial hurdles making it difficult for the injured parties to sue are insufficient here justify third-party standing. The court also dismissed plaintiff's private nuisance and conspiracy claims. Liberty Counsel issued a press release announcing the decision.