Postal Worker Seeks Supreme Court Modification Of Title VII Precedents On Reasonable Accommodation

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Groff v. DeJoy. In the case, the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, held that accommodating a Sunday sabbath observer by allowing him not to report for work on Sunday would cause an "undue hardship" to the U.S. Postal Service.  Thus, failure to grant that accommodation did not violate Title VII. (See prior posting.) Appellants are asking the Supreme Court to repudiate the definition of "undue hardship" which the Court approved in its 1977 decision in TWA v. Hardison. First Liberty issued a press release announcing the filing of the petition for review.

Court Gives Guidance On Assessing Whether Parents Had Sincerely Held Religious Belief Opposing Vaccination

In In the Interest of C.C., (GA Sup. Ct., Aug. 23, 2022), the Georgia Supreme Court gave guidance to a Juvenile Court on how to determine whether parents' objections to vaccinating their children (who were now in custody of the state) are based on a sincerely held religious belief. The court said in part:

Even if the Chandlers do not “observe a particular religion” or attend church consistently, and even if their objection to vaccination is partly secular, they may still be able to identify a religious belief that they sincerely hold and that would be violated by the vaccination of their children.... The juvenile court’s sincerity finding apparently rested at least in part on an assumption to the contrary; this prevents us from affirming this ruling....

In fairness to the juvenile court, the proper standard is not easily reducible to a simple formula; accordingly, we offer the following guidance.... Ultimately, the juvenile court must determine whether the Chandlers’ religious objection to the vaccination of their children is “truly held.” ... The court should “sh[y] away from attempting to gauge how central a sincerely held belief is to the believer’s religion.” And it must bear in mind that “a belief can be both secular and religious. The categories are not mutually exclusive.”...

The juvenile court can weigh various factors, including ... how long the Chandlers have asserted their professed religious belief, how much they know about it, and their reliance on “religious literature and teachings supporting the belief[.]” ... Whether the Chandlers have wavered in their actions related to vaccination “also appears to be relevant[.]”... But the juvenile court should also be cautious in affording more than a little weight to evidence that the Chandlers were inconsistent in visibly living out their religious beliefs; for example, the frequency of the family’s church attendance....

Last Defendant In Poway Synagogue Tax Fraud Scheme Sentenced

The U.S. Attorney's Office for the Southern District of California announced on Friday that attorney Elliot Adler, the eleventh and last individual being prosecuted for the tax fraud scheme connected with Chabad of Poway, was sentenced to one year and one day in prison, fined $20,000, and ordered to forfeit gold coins purchased with funds used in the fraud. According to the announcement:

Beginning at least as early as 2010 and continuing through October 2018, Adler participated in a so-called “90/10” tax scheme with Rabbi Goldstein. Specifically, Adler gave money to Rabbi Goldstein that purported to be a donation to Chabad of Poway. Goldstein then secretly funneled ninety percent of the funds back to Adler, keeping ten percent of the funds as his fee. None of the donated funds was actually given to the Chabad as a charitable donation. Adler then falsely claimed that the fraudulent donations were tax-deductible on his tax returns, allowing him to reduce his personal income tax liability by approximately $500,000 (cumulatively) for tax years 2011 through 2017.

(See prior related posting.)

Religious Objections To Air Force COVID Mandate Dismissed For Lack of Standing and Ripeness

In Miller v. Austin, (D WY, Aug. 22, 2022), a Wyoming federal district court dismissed on standing and ripeness grounds a suit by two Air Force sergeants who face discharge because of their refusal on religious grounds to receive the COVID vaccine.  The court said in part:

Defendants correctly point out "Plaintiffs have filed this lawsuit to avoid the possibility of involuntary separation."... Furthermore, due to the pending class action, Defendants confirmed Miller's August 25, 2022 separation hearing has been paused.... There is no current threat of separation. Plaintiffs have not yet suffered a concrete, particularized, actual injury in fact because Plaintiffs have not been separated from the USAF. Plaintiffs do not have standing to bring this issue.

More damning to Plaintiffs' case, however, is the fact that the religious exemption is still subject to administrative review within the USAF.

International Day Commemorating Victims Of Religious Persecution

Today was International Day Commemorating the Victims of Acts of Violence based on Religion or Belief, so designated by a United Nations General Assembly Resolution (full text) adopted in 2019. A U.N. web page sets out the background and importance of the day. U.S. Secretary of State Anthony Blinken issued a statement (full text) saying in part:

May this day offer assurance to those suffering for their beliefs that the United States and likeminded partners have not forgotten or forsaken you.  We see you, we hear you, and we remain unwavering in our commitment to ensure your freedom, protection, and peaceful exercise of your beliefs.

The Council of the European Union issued a press release marking the occasion, saying in part:

In these times of armed conflicts and humanitarian crises across the globe, individuals, including those belonging to minority groups, continue to be discriminated against, persecuted targeted, killed, detained, expelled or forcefully displaced because of their religion or for holding humanists and /or atheist beliefs. Today is an opportunity to highlight their situation.

No State Action Involved In Barring Of Plaintiff From Moorish Science Temple

In Bey v. Sirius-El, (ED NY, Aug. 19, 2022), a New York federal district court dismissed a suit seeking damages, injunctive relief and criminal prosecution of defendants for barring plaintiff from attending the Brooklyn Moorish Science Temple in person. Plaintiff was barred because of the potential for a conflict between her and a "competing love interest" who has also been attending services. Plaintiff's free exercise claims were dismissed because she did no allege that any state action was involved.

Recent Articles of Interest

From SSRN:

• David Simson, Most Favored Racial Hierarchy: The Ever-Evolving Ways of the Supreme Court’s Superordination of Whiteness,  (Michigan Law Review, Vol. 120, No. 8, 2022).
• Kathleen Brady, Independent and Overlapping: Institutional Religious Freedom and Religious Providers of Social Services, (Loyola University Chicago Law Journal, Forthcoming).
• Perry Dane, The Anomalous Free Speech Clause (August 12, 2022).
• Hershey H. Friedman & Linda Weiser Friedman, Encounters with God: Rabbinic Stories and What We Can Learn from Them, (August 14, 2022).
• Kaiponanea T. Matsumura, The Marital Habitus, (Washington University Law Review, Vol. 99, No. 6, 2022).
• Zheng Zhang, Counterterrorism in the Post-Epidemic Era, (April 1, 2022).

From SSRN (Abortion Rights):

• Tyler Valeska, Abortion Speech Suppression (July 28, 2022).
• David Landau & Rosalind Dixon, Dobbs, Democracy, and Dysfunction (August 9, 2022).
• I. Glenn Cohen, Melissa Murray & Lawrence O. Gostin, The End of Roe v Wade and New Legal Frontiers on the Constitutional Right to Abortion, (The Journal of the American Medical Association, published online July 8, 2022).
• Dov Fox, What Will Happen if Doctors Defy the Law to Provide Abortions?, (New York Times (online), July 17, 2022).

From SSRN (European Law):

• Julie Ringelheim & Stijn Smet, Secularism and State Neutrality in Constitutional Adjudication: A Comparative Analysis of Belgium, Germany and France, (in P. Nihoul, B. Renauld and J. Theunis (eds), Réflexions autour de la laïcité – Reflecties over laïciteit. Liber amicorum François Daout, Anthemis (2022)).
• Daid de Groot, Bans on Conversion 'Therapies' - The Situation in Selected EU Member States, (European Parliamentary Research Service, PE 733.521 (2022)).

From SmartCILP and Elsewhere:

• C. Scott Maravilla, Lifting the Veil by Covering It: European Prohibitions on the Practice of Veiling Constitute the Forced Covering of Muslim Women, 51 University of Baltimore Law Review 73-102 (2021).
• Columbia Law School Law, Rights and Religion Project, A Religious Right To Abortion: Legal History and Analysis,(2022).

Michigan County Prosecutors Temporarily Enjoined From Enforcing Pre-Roe Abortion Ban

As reported by Bridge Michigan, a Michigan state trial court judge yesterday issued a preliminary injunction barring county prosecutors from enforcing a 1931 statute banning abortion. The injunction prevents enforcement while the constitutionality of the statute is being litigated. According to the report:

[Judge] Cunningham said the danger of harm to women and doctors if the ban were allowed to take effect “could not be more crystal clear.”

“The court finds the statute dangerous and chilling to our state's population, childbearing people and the medical professionals that care for them”....

Other Michigan courts have already barred the state Attorney General's office from enforcing the pre-Roe statute. (See prior posting.) The court yesterday postponed any further hearings until after the November elections in which a proposed state constitutional amendment on abortion rights will likely be on the Michigan ballot.

Michigan Governor Gretchen Whitmer issued a statement (full text) welcoming the court's decision.

Some Of Fired Pastor's Claims Can Move Ahead

In Nation Ford Baptist Church Inc. v. Davis, (NC Sup.Ct., Aug. 19, 2020), the North Carolina Supreme Court allowed a Pastor to move ahead with a portion of his claims challenging his firing, saying in part:

Which set of corporate bylaws were in effect at the relevant time, whether the Church and Board followed the procedures set forth in the bylaws, and whether there was a contract of employment between Pastor Davis and the Church that was breached are factual and legal questions that are appropriately answered by reference to neutral principles of corporate, employment, and contract law....

Nonetheless, other claims raise questions that cannot be answered without considering spiritual matters. These claims must be dismissed for lack of subject matter jurisdiction....

[I]n all other respects the first claim for relief goes too far, particularly in the remedy sought, because the court can neither declare Pastor Davis the spiritual leader of the Church nor require that he be allowed to conduct services. Addressing this controversy would entangle the court in religious matters such as whether Pastor Davis adequately performed his duties as a pastor as that role is understood in accordance with the Church’s faith and religious traditions.

[Thanks to Will Esser via Religionlaw for the lead.]

Fire Department Chaplain Dismissed Because Of His Blog Posts Files Suit

An ordained Christian minister who has been a volunteer fire department chaplain in Austin, Texas filed suit in a Texas federal district court yesterday alleging that his free speech and free exercise rights were violated when the fire department terminated him as a chaplain because of his social media posts.  The complaint (full text) in Fox v. City of Austin, (WD TX, filed 8/18/2022), alleges in part:

Dr. Andrew K. Fox ... helped start Austin’s fire chaplaincy program and served as its lead chaplain—a volunteer position—for eight years. That abruptly changed when Dr. Fox posted something on his personal blog that Austin officials considered unacceptable: his religious belief that men and women are created biologically distinct and his view that men should not compete on women’s sports teams. After Austin officials demanded that Dr. Fox recant and apologize for expressing these beliefs and Dr. Fox refused, they terminated him....

Under the City’s standard, no one who openly holds historic Christian beliefs about the immutable differences between men and women can serve as a chaplain or in any other fire department position.... When the government can needlessly punish people for professing views outside of work on matters of ongoing public debate, that chills everyone’s speech and discourages democratic participation.

ADF issued a press release announcing the lawsuit.

Court Lifts Pre-Dobbs Injunction Against Enforcement Of North Carolina Abortion Ban

 In Bryant v. Woodall, (MD NC, Aug 17, 2022), a North Carolina federal district court lifted an injunction it had entered in 2019 enjoining enforcement North Carolina statutes that prohibited pre-viability abortions. The court said in part:

None of the parties argue that the injunction remains legally enforceable, nor could they. The injunction was entered under the authority of Roe and Casey; that precedent has been overruled by Dobbs. Because the power to regulate abortion has been returned to the states, the parties’ suggestion that this court’s injunction is having an effect, whether preventing “confusion,”... or “preserv[ing] Plaintiffs’ ability to provide critical healthcare services,”... suggests the parties are improperly relying upon, and asserting, an injunction that is no longer lawful.

ADF issued a press release announcing the decision.

Maine's COVID Vaccine Mandate, Without Religious Exemption, Is Upheld

 In Lowe v. Mills, (D ME, Aug. 18, 2022), a Maine federal district court rejected challenges by seven healthcare workers to Maine's COVID vaccination requirement for healthcare workers. No religious exemption is available; medical exemptions are available. The court rejected plaintiffs Title VII religious discrimination claim, saying in part:

[I]f the Hospital Defendants had granted the sole accommodation sought by the Plaintiffs, it would result in an undue hardship by subjecting the Hospital Defendants to the imposition of a fine and the “immediat[e] suspension of a license.”

The court also rejected plaintiffs' 1st Amendment Free Exercise claims, saying in part:

In the context of the COVID-19 vaccine mandate, the medical exemption is rightly viewed as an essential facet of the vaccine’s core purpose of protecting the health of patients and healthcare workers, including those who, for bona fide medical reasons, cannot be safely vaccinated. In addition, the vaccine mandate places an equal burden on all secular beliefs unrelated to protecting public health—for example, philosophical or politically-based objections to state-mandated vaccination requirements—to the same extent that it burdens religious beliefs. Thus, the medical exemption available as to all mandatory vaccines required by Maine law does not reflect a value judgment unfairly favoring secular interests over religious interests. As an integral part of the vaccine requirement itself, the medical exemption for healthcare workers does not undermine the vaccine mandate’s general applicability.

Commission Recommends Changes In Australian State's Anti-Discrimination Laws

On Aug. 16, the Law Reform Commission of Western Australia sent to Parliament its 297-page Final Report on its Review of the Equal Opportunity Act 1984 (WA) (full text). The Report makes 163 recommendations for changes in Western Australia's anti-discrimination laws. In connection with the Act's ban on discrimination based on religious conviction, the Report's Recommendation 51 provides:

Religious conviction should be defined in the Act. It should be defined as:
• having a religious conviction, belief, opinion or affiliation;
• engaging in religious activity;
• appearance or dress required by, or symbolic of, the person’s religious conviction;
• the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples;
• engaging in the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples;
• not having a religious conviction, belief, opinion or affiliation; and
• not engaging in religious activity.

The word religious should not be defined.

The Report also makes recommendations relating to discrimination on the basis of gender identity, sex characteristics and sexual orientation. It makes extensive recommendations on religious exceptions to anti-discrimination rules.

Christian Schools Australia issued a press release criticizing the Report.

Court Reverses Sanctions Imposed On Church For Violating COVID Orders

In People v. Calvary Chapel, San Jose, (CA App., Aug. 15, 2022), a California state appellate court annulled contempt orders imposed by trial courts and reversed trial court imposition of monetary sanctions which resulted from a church's refusal to comply with state COVID public health orders. The order restricted the holding and conduct of public gatherings. The court said in part:

[W]e conclude that the temporary restraining orders and preliminary injunctions are facially unconstitutional pursuant to the recent guidance of the United States Supreme Court regarding the First Amendment’s protection of the free exercise of religion in the context of public health orders that impact religious practice (see, e.g., Tandon v. Newsom (2021) ....) As the underlying orders which Calvary Chapel violated are void and unenforceable, we will annul the orders of contempt in their entirety and reverse the orders to pay monetary sanctions.

Advocates for Faith & Freedom issued a press release announcing the decision and reporting that Santa Clara County is still attempting to enforce $2.8 million in fines imposed for violation of county health orders.

HRSA Wrongly Eliminated Required Insurance Coverage For Natural Family Planning Methods

 In Tice-Harouff v. Johnson, (ED TX, Aug. 12, 2022), a Texas federal district court held that changes in the language of federal regulations specifying the required cost-free contraceptive coverage by qualified health plans eliminated coverage for fertility-awareness based methods. These natural family planning methods are used, among others, by women with religious objections to use of contraceptives. The court held that the Health Resources and Services Administration violated the Notice and Comment requirement of the Administrative Procedure Act in adopting the amendments and that the amendments were arbitrary and capricious. The court rejected the government's claim that the change in language had not eliminated coverage for such methods. ADF issued a press release announcing the decision.

Preliminary Relief Denied In Challenge To Georgia Anti-Abortion Law

In Sistersong Women of Color Reproductive Justice Collective v. State of Georgia, (GA Super. Ct., Aug. 15, 2022), a Georgia state trial court refused to grant a preliminary injunction to prevent enforcement of Georgia's LIFE Act while its constitutionality is being litigated. The Act, with limited exceptions, bars abortions once a heartbeat is detectable. The court held that Georgia's constitutional provision that waives sovereign immunity for an injunction after the award of declaratory relief does not waive sovereign immunity for a preliminary injunction before declaratory relief has been granted. The Georgia ACLU issued a press release discussing the decision.

USDA Clarifies Title IX Religious Institution Exemption

On Aug. 12, the Department of Agriculture issued a Guidance (full text) clarifying that a Title IX exemption is available for religious educational institutions if there is a conflict between Title IX and a school’s governing religious tenets. The Guidance provides in part:

USDA regulations do not require a religious educational institution to submit a written request for a Title IX exemption in order to claim that exemption.

If, however, a religious educational institution wishes to seek USDA recognition of their religious exemption, it may do so through a written request under USDA regulations....

The Guidance comes after litigation by a Christian school in Florida that objected to submitting an exemption request in order to participate in the USDA's school lunch program and maintain its policies on gender identity. (See prior posting.)  ADF issued a press release on the USDA's action.

Recent Articles of Interest

From SSRN:

• Mark Movsesian, The New Thoreaus, (Loyola University Chicago Law Journal, Forthcoming).
• Jake Linford, Justin Sevier & Allyson Willis, Trademark Tarnishmyths (August 6, 2022).
• Dov Fox, Medical Disobedience, (Harvard Law Review, Vol. 136, Forthcoming).
• Daniel O. Conkle, Religion, Law, and the Constitution, Second Edition, (Foundation Press, 2022).
• Kerri Froc, A Law in Rupture: Section 28, Equal Rights, and the Constitutionality of Québec's Bill 21 Religious Symbols Ban, (July 24, 2022).
• Frank Buono, A Compendium of Federal Authorities (Executive – Legislative - Judicial) Governing American Indian Sacred Sites on Federal Lands, (July 12, 2022).
• Shahbaz Ahmad Cheema, Rights of the Child in Islam: Theory, Mechanisms, Practices and Convention on the Rights of the Child – A Book Review, (LUMS Law Journal (2022) Vol. 9, pp. 108-112).

From SSRN (Abortion rights):

• Adam Richardson, The Originalist Case for Why the Florida Constitution's Right of Privacy Protects the Right to an Abortion, (August 10, 2022).
• Reva B. Siegel, Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance, (Texas Law Review, Forthcoming).

From SmartCILP and elsewhere:

• Ido Shahar & Karin Carmit Yefet, Kadijustiz in the Ecclesiastical Courts: Naming, Blaming, Reclaiming,  56 Law & Society Review 53-77 (2022).
• Journal of Law and Religion, Volume 37, Issue 2 (May 2022).

Louisiana Supreme Court Refuses Stay Of Abortion Ban During Appeals

In an Order (full text) signed by four of the seven Justices on the Louisiana Supreme Court in June Medical Services, LLC v. Landry, (LA Sup. Ct., Aug. 11, 2022), the court denied a petition by abortion providers seeking to reinstate a trial court's injunction on enforcing Louisiana's abortion ban while appeals are being pursued.  As explained by The Advocate, the trial court had found that the law was likely unconstitutionally vague.  A state appellate court ordered the trial court to suspend its ruling, and now the Supreme Court has refused to overturn that decision.

Idaho Supreme Court Refuses To Stop Effectiveness Of Abortion Bans

In Planned Parenthood Great Northwest v. State of Idaho,(ID Sup. Ct., Aug. 12, 2022), the Idaho Supreme Court, in a 3-2 decision, refused to issue a preliminary injunction to prevent enforcement while litigation is pending of a statute triggered by the overruling of Roe v. Wade imposing a near-total abortion ban, as well as of a six-week abortion ban. The court also vacated a preliminary stay it had previously issued barring enforcement of a law that creates civil liability in suits against persons performing abortions after a fetal heartbeat is detectable. Plaintiffs contend that the statutes violate various provisions of the Idaho constitution. The majority concluded that petitioners had not shown a substantial likelihood of success or violation of a clear legal right as to either of the statutes.

Justice Stegner, joined by Justice Zahn, dissented contending that it is sufficient that petitioners showed irreparable harm if a stay in not granted; they do not need to also show a likelihood of success. The dissent said in part:

The State and the Legislature’s only argument that irreparable harm will not result is that the Idaho Constitution does not protect the right to an abortion. This argument fails because it is premised on a decision we have not yet made.

Fox News reports on the decision.