Supreme Court Upholds Football Coach's Prayer Rights; Repudiates the "Lemon Test"

 In Kennedy v. Bremerton School District, (Sup. Ct., June 27, 2022), the U.S. Supreme Court, in a 6-3 decision, held that a school district violated the First Amendment's Free Speech and Free Exercise clauses by disciplining a football coach for visibly praying at midfield immediately after football games. Justice Gorsuch wrote the majority opinion. In discussing whether the school district could regulate Coach Kennedy's speech because Kennedy was a government employee, Justice Gorsuch said in part:

[W]hat matters is whether Mr. Kennedy offered his prayers while acting within the scope of his duties as a coach. And taken together, both the substance of Mr. Kennedy’s speech and the circumstances surrounding it point to the conclusion that he did not.

In reaching its contrary conclusion, the Ninth Circuit stressed that, as a coach, Mr. Kennedy served as a role model “clothed with the mantle of one who imparts knowledge and wisdom.”... Teachers and coaches often serve as vital role models. But this argument commits the error of positing an “excessively broad job descriptio[n]” by treating everything teachers and coaches say in the workplace as government speech subject to government control.... On this understanding, a school could fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria. Likewise, this argument ignores the District Court’s conclusion (and the District’s concession) that Mr. Kennedy’s actual job description left time for a private moment after the game to call home, check a text, socialize, or engage in any manner of secular activities.... That Mr. Kennedy chose to use the same time to pray does not transform his speech into government speech To hold differently would be to treat religious expression as second-class speech and eviscerate this Court’s repeated promise that teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”.... 

Justice Gorsuch also found it clear that Coach Kennedy seeks to engage in a sincerely motivated religious exercise. The more difficult question was whether the school district could bar this because of Establishment Clause concerns. In deciding that it could not, the Court repudiated the Lemon test which had been relied upon by the lower courts in deciding the case. Justice Gorsuch said in part:

It is true that this Court and others often refer to the “Establishment Clause,” the “Free Exercise Clause,” and the “Free Speech Clause” as separate units. But the three Clauses appear in the same sentence of the same Amendment.... A natural reading of that sentence would seem to suggest the Clauses have “complementary” purposes, not warring ones where one Clause is always sure to prevail over the others....

To defend its approach, the District relied on Lemon and its progeny....

What the District and the Ninth Circuit overlooked, however, is that the “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot.... This Court has since made plain, too, that the Establishment Clause does not include anything like a “modified heckler’s veto, in which . . . religious activity can be proscribed” based on “‘perceptions’” or “‘discomfort.’” ...

In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.’” Town of Greece, 572 U. S., at 576.... “‘[T]he line’” that courts and governments “must draw between the permissible and the impermissible” has to “‘accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.’”... An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “‘exception’” within the “Court’s Establishment Clause jurisprudence.”

Justice Gorsuch then focused on the alternative argument that students were being coerced to pray. He said in part:

No doubt, too, coercion along these lines was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment. Members of this Court have sometimes disagreed on what exactly qualifies as impermissible coercion in light of the original meaning of the Establishment Clause..... But in this case Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion....

Naturally, Mr. Kennedy’s proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise. Those close at hand might have heard him too. But learning how to tolerate speech or prayer of all kinds is “part of learning how to live in a pluralistic society,” a trait of character essential to “a tolerant citizenry.”

Justice Thomas filed a brief concurring opinion, saying in part:

[W]e have held that “the First Amendment protects public employee speech only when it falls within the core of First Amendment protection— speech on matters of public concern.”... It remains an open question, however, if a similar analysis can or should apply to free-exercise claims in light of the “history” and “tradition” of the Free Exercise Clause...

Justice Alito filed a brief concurring opinion, saying in part:

The Court does not decide what standard applies to such expression under the Free Speech Clause but holds only that retaliation for this expression cannot be justified based on any of the standards discussed. On that understanding, I join the opinion in full.

Justice Sotomayor, joined by Justices Breyer and Kagan, filed a dissenting opinion, saying in part:

Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment.

The Court now charts a different path, yet again paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion....

Properly understood, this case is not about the limits on an individual’s ability to engage in private prayer at work. This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so....

The Court now goes much further, overruling Lemon entirely and in all contexts. It is wrong to do so....

The Free Exercise Clause and Establishment Clause are equally integral in protecting religious freedom in our society. The first serves as “a promise from our government,” while the second erects a “backstop that disables our government from breaking it” and “start[ing] us down the path to the past, when [the right to free exercise] was routinely abridged.” ...

Today, the Court once again weakens the backstop. It elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all. Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection. In doing so, the Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance. As much as the Court protests otherwise, today’s decision is no victory for religious liberty.

CNN reports on the decision.

Recent Articles of Interest

From SSRN:

• Marc Spindelman, What 'Dobbs' Means for Women's Equality (The seeds of unraveling a host of gender-based protections are present in the draft opinion.), (The American Prospect (June 20, 2022)).
• John Witte, Joel A. Nichols & Richard W. Garnett, Introduction to Religion and the American Constitutional Experiment, (5th ed. (Oxford: Oxford University Press, 2022), 1-8)).
• John Witte, Restoring the Value(s) of Religion in American Public Education, (in Stephen Pickard, Michael Welker, and John Witte, Jr. eds., The Impact of Education on Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies (Leipzig: Evangelische Verlagsanstalt GmbH, 2022), 89-106).
• Shlomo Pill, Ariel Liberman, & J.R. Rothstein, Roadmap to Reconciliation: An Institutional and Conceptual Framework for Jewish-Muslim Engagement, (Touro Law Review, Vol. 37, 2021).
• Nausica Palazzo & Jeffrey A. Redding, Introduction, (Queer and Religious Alliances in Family Law Politics and Beyond, Anthem Press, New York, 2022).
• Howard Kislowicz & Benjamin L. Berger, Religion, Public Law, and the Refuge of Formalism, (University of New Brunswick Law Journal, Forthcoming).
• Sahar F. Aziz, State Sponsored Radicalization, (Michigan Journal of Race & Law, Vol. 27, 2021).
• Kari E. Hong, Overturning Roe v. Wade: How Originalism's Rejection of Family Formation Rights Undermines the Court's Legitimacy and Destabilizes a Functioning Federal Government,  (83:5 Montana Law Review Online 1 (2022)).
• Maryam Jamshidi, The World of Private Terrorism Litigation, (Michigan Journal of Race & Law, Vol. 27, No. 1, 2021).

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

• Dörthe Engelcke, Between Church and State: The Challenges of Reforming the Church Courts and Family Law in the Greek Orthodox Patriarchate of Jerusalem, (International Journal of Middle East Studies (IJMES), pp. 1-20, May 2022).
• Shucheng Wang, The Chinese Communist Party’s Atheistic Approach to Religious Freedom in China, (Politics, Religion & Ideology, 2022 Forthcoming).
• Adam Ploszka, It Never Rains But it Pours. The Polish Constitutional Tribunal Declares the European Convention on Human Rights Unconstitutional, (Hague Journal on the Rule of Law 2022).
• Paula Gerber & Phoebe Lindner, Educating Children about Sexual Orientation and Gender Identity in Australia Post-Marriage Equality, (2022) 5(2) Human Rights Education Review 4-31).
• Miracle Mudeyi Sheila Wangui Macharia, Through the Lens of PAK and Salim Mohammed v AG and 3 Others; Reconceiving the Place of Privacy in the Realm of Sexual and Reproductive Rights; the Place of Safe Medical Abortion in Kenya Today, (May 16, 2022).

From SSRN (Religious Law):

• Brandon L. Paradise, Confronting the Truth: The Necessity of Love for Justice, (Journal of Law and Religion, Vol. 37, No. 2, 2022).
• John Witte, Law at the Backbone: The Christian Legal Ecumenism of Norman Doe, (Ecclesiastical Law Journal 24 (2022): 192-208).
• John Witte, Natural Law in Europe and America (1600- ), (in The Encyclopedia of the Bible and its Reception (Berlin: DeGruyter, 2022)).

From SmartCILP and elsewhere:

• Mark Goldfeder, Why Arkansas Act 710 Was Upheld, and Will Be Again, 74 Arkansas Law Review 607-640 (2022).
• Michael Berry & Antony Barone Kolenc, Born-Again RFRA: Will the Military Backslide on its Religious Conversion?, 87 Missouri Law Review 435 (2022).

Employees' Religious Objections To Apron Logo May Support Title VII Claim

In EEOC v. Kroger Limited Partnership I, (ED AR, June 23, 2022), an Arkansas federal district court refused to dismiss a religious discrimination claim brought by the EEOC against Kroger for failing to accommodate two employees who refused to wear the company's apron which features a four-color heart symbol. Kroger developed the symbol as part of a new campaign emphasizing the company's four service-based commitments. The employees insisted that the symbol promotes the LGBT community. Their religious beliefs prevent them from promoting homosexuality which they believe is a sin. The court said in part:

Kroger acknowledges that the Court can't sit in judgment of the objective reasonableness of a sincerely held religious belief ...  [But] according to Kroger ... it is objectively unreasonable to believe that the Our Promise symbol supports and promotes the LGBTQ community. Thus, Kroger concludes, there is no conflict at all between Lawson and Rickerd's religious beliefs and Kroger's dress code. ...

Kroger slices things far too thin by isolating the "religious belief" question from the "conflict" question.... [T]hose questions are too bound up with each other for Kroger's theory to be correct. Subjecting the "conflict" question to an objective-reasonableness review would inevitably subject some aspect of the employee's religious beliefs, practices, or observances to the same standard. And we know that isn't allowed....

In any event, even if Kroger was right ..., there's evidence in the record that would allow (but not require) a rational juror to conclude... that Lawson and Rickerd reasonably believed that wearing the multi-colored heart would communicate support for and promotion of the LGBTQ community....

Regardless of what Kroger intended for its Our Promise symbol to mean, Lawson and Rickerd object to being seen as supporting or promoting homosexuality. So, the real question would be whether it was objectively reasonable for Lawson and Rickerd to believe that other people (i.e., customers) would think that the multi-colored heart was a pro-LGBTQ symbol. And a rational juror could go either way on that question.

9th Circuit: Oak Flat Land Exchange Did Not Substantially Burden Apache Religious Exercise

In Apache Stronghold v. United States, (9th Cir., June 24, 2022), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, held that a proposed federal government land exchange in Arizona with a mining company will not substantially burden Apache religious exercise in violation of RFRA. Nor will it violate the 1st Amendment because the Land Exchange Provision is a neutral and generally applicable law. The majority said in part:

Under RFRA, the government imposes a substantial burden on religion in two—and only two—circumstances: when the government “force[s individuals] to choose between following the tenets of their religion and receiving a governmental benefit” and when the government “coerce[s individuals] to act contrary to their religious beliefs by the threat of civil or criminal sanctions.” ... Here, the government will do neither by transferring Oak Flat to Resolution Copper.... The Department of Agriculture will simply transfer ownership of a plot of government land to Resolution Copper. The Land Exchange’s “incidental effects” on the religious exercise of Apache Stronghold’s members, as significant as they may be to the Apache, “may make it more difficult [for them] to practice [their religion] but [will] have no tendency to coerce [the Apache] into acting contrary to their religious beliefs.” ... Hence, under RFRA the Land Exchange imposes no substantial burden and RFRA thus does not limit the government’s ability to complete the Land Exchange. 

This is true even if the Land Exchange makes worship on Oak Flat “impossible.” 

Judge Berzon dissented, saying in part:

The majority applies an overly restrictive test for identifying a “substantial burden” on religious exercise under the Religious Freedom Restoration Act.... The majority’s flawed test leads to an absurd result: blocking Apaches’ access to and eventually destroying a sacred site where they have performed religious ceremonies for centuries does not substantially burden their religious exercise. The majority offers both a doctrinal and a practical basis for its unduly narrow definition of “substantial burden.” Both are incorrect.

The majority opinion includes a lengthy response to the dissent. Reuters reports on the decision.

7th Circuit Denies Preliminary Injunction To Doctor Fired For Refusing Vaccine

In Halczenko v. Ascension Health, Inc., (7th Cir., June 23, 2022), the U.S. 7th Circuit Court of Appeals affirmed the denial of a preliminary injunction to a pediatric critical care specialist who was fired from his hospital position after he refused, on religious grounds, to comply with the hospital's COVID vaccine mandate. The court concluded that plaintiff had shown neither irreparable injury nor inadequate remedies through a Title VII action. Among other things, the court rejected the argument that the doctor will suffer a deterioration in skills that amounts to irreparable injury.

Department Of Interior Report Includes Role Of Religious Institutions In Indian Boarding School Policies

Last month, the Department of Interior released Volume 1 of an investigative report as part of its Federal Indian Boarding School Initiative designed to explore the legacy of past Indian boarding school policies. The Report (full text) released on May 11 includes a section (pp. 46-50) on The Role of Religious Institutions and Organizations in the Federal Indian Boarding School System, which says in part:

Indian reservations “were distributed among the major religious denominations, which, in an unprecedented delegation of power by the Federal Government to church bodies, were given the right to nominate new agents, and direct educational and other activities on the reservations.” ... [T]he Executive accepted official recommendations by religious institutions and organizations for presidential appointed posts in states and territories.... [T]he U.S. “military was frequently called in to reinforce the missionaries’ orders.

The report quotes an 1886 memo from an Indian School Superintendent to the Secretary of Interior on boarding schools operated by religious institutions:

The Government aid furnished enables them to sustain their missions, and renders it possible … to lead these people, whose paganism has been the chief obstacle to their civilization, into the light of Christianity – a work in which the Government cannot actively engage … They should receive the encouragement and co-operation of all Government employés.

Supreme Court Overrules Roe v. Wade and Casey

In a 5-1-3 opinion today, the U.S. Supreme Court in Dobbs v. Jackson Women's Health Organization, (Sup. Ct., June 24, 2022), overruled Roe v. Wade  and Planned Parenthood of Southeastern Pa. v. Casey.  The majority, in a 108-page opinion written by Justice Alito and joined by Justices Thomas, Gorsuch, Kavanaugh and Barrett said in part:

The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”...

The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law....

Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives....

In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy....

[T]he dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell.... But we have stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”... We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed “potential life.” ... Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by “appeals to a broader right to autonomy.”... It is hard to see how we could be clearer....

We must now decide what standard will govern if state abortion regulations undergo constitutional challenge and whether the law before us satisfies the appropriate standard....

Under our precedents, rational-basis review is the appropriate standard for such challenges....

A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.”... It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests....

These legitimate interests justify Mississippi’s Gestational Age Act.... The Mississippi Legislature’s findings recount the stages of “human prenatal development” and assert the State’s interest in “protecting the life of the unborn.”.... The legislature also found that abortions performed after 15 weeks typically use the dilation and evacuation procedure, and the legislature found the use of this procedure “for nontherapeutic or elective reasons [to be] a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.” ... These legitimate interests provide a rational basis for the Gestational Age Act....

Justice Thomas filed a concurring opinion arguing that "'substantive due process' is an oxymoron that 'lack[s] any basis in the Constitution.'" He goes on to say: "in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.

Justice Kavanaugh filed a concurring opinion emphasizing that the Court's decision does not threaten or cast doubt on substantive due process decisions on non-abortion issues. He also reiterated: "Because the Constitution is neutral on the issue of abortion, this Court also must be scrupulously neutral."

Chief Justice Roberts filed an opinion concurring only in the judgment and saying in part:

I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further— certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered “late” to discover a pregnancy.... I see no sound basis for questioning the adequacy of that opportunity.

But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more....

Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.

Justices Breyer, Sotomayor and Kagan filed a 66-page joint dissenting opinion, saying in part:

The majority tries to hide the geographically expansive effects of its holding. Today’s decision, the majority says, permits “each State” to address abortion as it pleases.... That is cold comfort, of course, for the poor woman who cannot get the money to fly to a distant State for a procedure. Above all others, women lacking financial resources will suffer from today’s decision. In any event, interstate restrictions will also soon be in the offing. After this decision, some States may block women from traveling out of State to obtain abortions, or even from receiving abortion medications from out of State. Some may criminalize efforts, including the provision of information or funding, to help women gain access to other States’ abortion services. Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest....

Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens. Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. And in thus safeguarding each woman’s reproductive freedom, the Constitution also protected “[t]he ability of women to participate equally in [this Nation’s] economic and social life.”... But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare. Some women, especially women of means, will find ways around the State’s assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all....

[I]n this Nation, we do not believe that a government controlling all private choices is compatible with a free people. So we do not (as the majority insists today) place everything within “the reach of majorities and [government] officials.”... We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least, we did once....

Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship....

The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions.

[This post was corrected to make it clear that the Dissent was a Joint Dissent, not a dissent by one Justice joined by the others.]

In Dispute Over Frozen Pre-Embryos, Wife's Religious Concerns Do Not Prevail

In In re Marriage of Olsen,(CO App., June 23, 2022), a Colorado state appellate court was called on to settle a dispute between a husband and wife over the disposition of their cryogenically frozen pre-embryos after their divorce. The wife wanted to donate the pre-embryos, now held by a fertility clinic, for implantation to another couple because of her religious belief that they are human lives. The husband wanted to destroy the pre-embryos to avoid procreation. A 2018 Colorado Supreme Court (In re Marriage of Rooks) in a somewhat similar case called for the balancing of various factors. Applying this precedent, the Court of Appeals awarded the pre-embryos to the husband, saying in part:

The district court erred by considering wife’s religious belief that the pre-embryos are human lives when weighting the first Rooks factor — the intended use of the party seeking to preserve the disputed pre-embryos.... 

The first Rooks factor simply asks what the party seeking to preserve the pre-embryos intends to do with them.... Does that party seek to implant the pre-embryos to achieve genetic parenthood or does that party seek to donate them? The first factor is not concerned with why the party prefers to preserve the pre-embryos over discarding them....

Although we are sensitive to wife’s concern that awarding the pre-embryos to husband will force her to participate in their destruction against her religious beliefs, the district court can enter orders to mitigate this concern. The district court can award husband the pre-embryos and authorize him to direct their disposal. Wife need not be involved in the process.... Because the decision will belong to husband, wife will not be compelled to do anything in violation of her religious beliefs, and therefore there is no Free Exercise violation. 

Another Challenge To School District's Vaccine Mandate Fails

 Doe v. San Diego Unified School District, (SD CA, June 21. 2022), is another attempt by parents and students to challenge the school district's COVID vaccine mandate that does not provide for religious exemptions. The 9th Circuit last year ultimately upheld the school district's prior policy, and the Circuit denied en banc review. The court said in part:

Even Plaintiffs concede that substantively, the new COVID-19 vaccinate mandate is largely the same as before, with a new implementation timeline.... Plaintiffs’ new claims in the FAC are still premised on violations of the Free Exercise Clause, just as the claim in the original complaint was. Accordingly, the Court is bound by the law of this case.

8th Circuit Upholds Arkansas Israel Boycott Certification Requirement

The U.S. 8th Circuit Court of Appeals sitting en banc, in a 9-1 opinion, upheld Arkansas' law requiring public contracts to include a certification from the contractor that it will not boycott Israel.  In Arkansas Times LP v. Waldrip, (8th Cir., June 22, 2022), the court held that the the statute's broad definition of "boycott" as including "other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories" is only a prohibition on non-expressive commercial decisions that are not protected under the First Amendment's free speech clause. The court also held that the required certification from the contractor does not amount to "compelled speech". The suit was brought by a newspaper that contracts with a state college.

Judge Kelley dissented, arguing that the statute was broader than the majority found it to be.  He contended that "other actions intended to limit commercial relations with Israel" could encompass more than just commercial activity, including activity that is protected by the First Amendment.  For example, it might include posting anti-Israel signs, donating to causes that promote a boycott of Israel, encouraging others to boycott Israel, or publicly criticizing the anti-boycott statute. (The en banc decision reverses a decision by a 3-judge panel of the 8th Circuit handed down last year.) The Forward reports on the decision.

French High Court Says City Must Ban Burkinis In Municipal Pools

 CNN reports that on Tuesday, France's highest administrative court, the Council of State, held that the city of Grenoble cannot permit Muslim women to wear the full-length "burkini" bathing suit in its municipal swimming pools. The court said that doing so would compromise principles of religious neutrality and "the equal treatment of users." The court went on to say that the city's initial decision to permit burkinis did so to satisfy religious demands. A French anti-separatism law passed last year prohibits actions whose "manifest objective is to give in to sectarian demands with religious aims."

UPDATE: Here is the full text of the Council of State's opinion in the case.

Louisiana Governor Signs Two "Trigger Laws" On Abortion

On June 17, Louisiana Governor John Bel Edwards signed Senate Bill 342 (full text), amending a 2006 law that banned all abortions except to prevent death or permanent impairment of a life-sustaining organ of the pregnant woman, or in cases of unintentional termination because of medical treatment. The law becomes effective if and when Roe is reversed. The Governor's signing letter (full text) explains the changes that SB 342 made to the 2006  "trigger law":

[T]he list of exceptions to the abortion prohibition ... is expanded to include: (1) when a medical procedure is performed with the intent to save the life or preserve the health of an unborn child, (2) when medical procedures are performed after a pregnant woman miscarries, (3) treatment and removal of an ectopic pregnancy, and (4) when a medical procedure is performed to remove an unborn child with an irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth. Although the ... Bill ... did not add rape and incest to the two existing exceptions ..., it did clarify that pregnancy and the life of an unborn child begin at implantation, rather than at fertilization ..., and clearly allows for emergency contraception to be administered to victims of rape and incest prior to when a pregnancy can be clinically diagnosed.

On June 17, the Governor also signed Senate Bill 388 (full text) to prohibit prescribing or selling in or into the state drugs for medical abortions.  Again, the bill's effectiveness is triggered by the overruling of Roe v. Wade. ABC News reports on the bills. [Thanks to Scott Mange for the lead.]

European Court: Turkey's Refusal To Allow Congregational Muslim Prayer In Prison Violated Religious Freedom

In Yalçın v. Turkey, (ECHR, June 14, 2022), the European Court of Human Rights in a Chamber Judgment held that Turkey violated Article 9 (freedom of religion and belief) of the European Convention on Human Rights by refusing to make a room available for congregational Muslim Friday prayers (Jumuah) at a High-Security Prison. The Court said in part:

... high-security prisons, such as the one in which the applicant was placed, are subjected to a stricter set of rules, which may call for a higher degree of restrictions on the exercise of rights under Article 9 of the Convention. Nevertheless, that fact alone should not be construed as excluding any real weighing of the competing individual and public interests but should rather be interpreted in the light of the circumstances of each individual case....

... domestic authorities did not sufficiently assess whether the gathering of a certain number of inmates for Friday prayers may, in the individual circumstances of the case, generate a security risk that they should have been treated differently from the collective gatherings of inmates for cultural or rehabilitative purposes, which were permitted by law....

The Court issued a press release announcing the decision.

Prosecutor's Ethical Objection To Death Penalty Was Not Reason To Withdraw Execution Warrant

Texas Tribune reports that yesterday a Texas state trial court judge rejected a request submitted jointly by the prosecutor and the defense attorney to withdraw a warrant setting the execution date for convicted murderer John Ramirez for October 5. The request to withdraw the execution date came two days after the court set it. District Attorney Mark Gonzalez said that he is ethically opposed to the death penalty and did not want the death penalty imposed on any prisoner while he is in office. An assistant district attorney had filed the request to set the execution date without conferring with Gonzalez. An appeal is planned. Ramirez was the petitioner in a RLUIPA case decided by the U.S. Supreme Court last year holding that he was entitled to a preliminary injunction barring Texas from proceeding with his execution without permitting his pastor, during the execution, to lay hands on the him and audibly pray with him. (See prior posting.)

Japanese Court Upholds Ban On Same-Sex Marriage

NPR reports that in Japan on Monday, the Osaka District Court ruled that the country's ban on same-sex marriage does not violate Japan's Constitution, rejecting plaintiffs' demand for damages of 1 milliion Yen ($7400 (US))

The Osaka court on Monday said freedom of marriage in the 1947 constitution only means male-female unions and does not include those of the same sex, and therefore banning same-sex marriages is not unconstitutional.

Judge Fumi Doi said marriage for heterosexual couples is a system established by society to protect a relationship between men and women who bear and raise children, and that ways to protect same-sex relationships are still undergoing public debate.

The court, however, urged the parliament to seek methods to better protect same-sex relationships, including options to legalize same-sex marriage.

The decision is contrary to a ruling in 2021 by a court in Sapporo.

Supreme Court Says Maine Cannot Exclude Sectarian Schools From Its Tuition Reimbursement Program

In Carson v. Makin, (Sup. Ct., June 21, 2022), in a 6-3 decision, the U.S. Supreme Court held that Maine's program that pays tuition (up to a statutory limit) to out-of-district public or private high schools for students whose districts do not operate a high school, but which requires participating schools to be nonsectarian, violates the Free Exercise Clause. The majority opinion by Chief Justice Roberts says in part:

The State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise....

Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.

Justice Breyer, joined by Justice Kagan and for the most part by Justice Sotomayor, filed a dissenting opinion which says in part:

Nothing in our Free Exercise Clause cases compels Maine to give tuition aid to private schools that will use the funds to provide a religious education.... [T]his Court’s decisions in Trinity Lutheran and Espinoza prohibit States from denying aid to religious schools solely because of a school’s religious status—that is, its affiliation with or control by a religious organization.... But we have never said that the Free Exercise Clause prohibits States from withholding funds because of the religious use to which the money will be put....

Maine’s decision not to fund such schools falls squarely within the play in the joints between those two Clauses. Maine has promised all children within the State the right to receive a free public education. In fulfilling this promise, Maine endeavors to provide children the religiously neutral education required in public school systems.... The Religion Clauses give Maine the ability, and flexibility, to make this choice. 

Justice Sotomayor also filed a dissenting opinion which says in part:

This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.... 

If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens.

CNN reports on the decision.

Supreme Court Denies Review In Challenge To California Time Extension For Sex Abuse Claims

The U.S. Supreme Court today denied review in Roman Catholic Bishop of Oakland v. Superior Court of the State of California, (Docket No. 21-1377, certiorari denied 6/21/2022). (Order List.) In the case, 9 dioceses and archdioceses challenged California legislation that extended the limitation period for suits alleging childhood sexual assault to plaintiff’s 40th birthday or 5 years after discovery; created a 3-year window to bring previously time-barred civil actions for for childhood sexual assault; and provided for treble damages in cover-up cases. Here is the Supreme Court case page.

South Carolina Adopts Law Protecting Conscience Rights Of Health Care Personnel and Institutions

As reported by WPDE News, on Friday South Carolina Governor Henry McMaster signed H4776, the Medical Ethics and Diversity Act (full text). The new law provides in part:

A medical practitioner, health care institutions, and health care payers have the right not to participate in or pay for any health care service which violates the practitioner's or entity's conscience....

... [A] religious medical practitioner, health care institutions, and health care payers that hold themselves out to the public as religious, state in their governing documents that they have a religious purpose or mission, and have internal operating policies or procedures that implement their religious beliefs, have the right to make employment, staffing, contracting, and admitting privilege decisions consistent with their religious beliefs....

No physician, nurse, technician, medical student, or other employee of a hospital, clinic or physician shall be required to recommend, perform or assist in the performance of an abortion if he advises the hospital, clinic or employing physician in writing that he objects to performing, assisting or otherwise participating in such procedures.

Belgian Regional Parliament Votes Down Ban On Kosher and Halal Slaughter

JTA reports that in the only portion of Belgium where kosher and halal slaughter is still legal, an attempt to ban those forms of slaughter (i.e. slaughter without first stunning the animal) failed:

The vote Friday in the parliament of the Brussels-Capital Region ... was on whether to scrap a bill proposing a ban. The bill, submitted by liberal and environmentally-centered parties, had been voted down in a committee that kicked it back to parliament.

Out of the 89 lawmakers in the region’s parliament, 42 voted in favor of scrapping, 38 voted against scrapping, eight abstained and one was not present, preserving for now the legality of kosher and halal slaughter in Brussels....

7 USCIRF Commissioners Appointed In Recent Weeks

The U.S. Commission on International Religious Freedom is comprised of 9 voting members-- 3 appointed by the President, 3 by the Senate and 3 by the House, under a formula that gives the President's political party 5 commissioners and the other party 4 commissioners. Commissioners are appointed for 2-year terms.  In recent weeks, seven Commissioners have been appointed or reappointed: Frederick A. Davie (April 27 press release); Nury Turkel, Frank R. Wolf and David G. Curry (May 13 press release);  Abraham Cooper and Eric Ueland (June 10 press release); Stephen Schneck (June 15 press release).