Religion Clause

Monday, March 11, 2024

Federal Agencies Finalize Rule Amendments on Grants to Faith-Based Organizations

On March 4, nine federal agencies published a 52-page joint release titled Partnerships With Faith-Based and Neighborhood Organizations (full text) in the Federal Register amending rules adopted by them during the Trump Administration. In a press release, Americans United summarizes the rule changes in part as follows:

The new regulations:

• Reinstate the requirement that people seeking services be informed of their religious freedom rights, which include that:

• They can’t be discriminated against because of their religion or because they are nonreligious.

• They can’t be required to pray or participate in religious activities.

• They can file a complaint if their rights are violated.

• Reinstate safeguards that ensure that people who obtain social services through vouchers are not forced to attend or participate in religious activities.

• Eliminate Trump-era provisions that were designed to allow social service providers to refuse to provide key services....

Sunday, March 10, 2024

Ramadan Begins Sunday Evening

As announced by the Fiqh Council of North America, Ramadan begins this evening (Sunday, March 10). CAIR has released a Ramadan Toolkit with templates for employees and students to use to seek accommodations for Ramadan observance. It also includes templates and sample texts for a resolution on Ramadan and Eid that can be adopted by governmental bodies, as well as a template letter regarding a Gaza Ceasefire resolution.

Saturday, March 09, 2024

Indiana Legislature Passes Bill Barring Antisemitism in Public Schools and Colleges

On Friday, the Indiana legislature gave final passage to House Bill 1002 (full text) which amends the state Education Code to specifically protect against antisemitism in public schools and colleges. The bill, as finally enacted, defines antisemitism by adopting the text of the International Holocaust Remembrance Alliance's definition, but, in a compromise, excludes examples given by IHRA that, among other things, indicate when criticism of Israel amounts to antisemitism. AP reports on the bill's passage, discussing the compromise in greater detail. The bill now goes to Governor Eric Holcomb for his signature.

Friday, March 08, 2024

Student Sues School Board Alleging Gender Affirming Policies Violate Her Rights

Suit was filed earlier this week in a Virgina state trial court by a high school student challenging Fairfax County School Board regulations (full text) that support transgender students. The complaint (full text) in Doe v. Fairfax County School Board, (VA Cir. Ct., filed 3/4/2024), alleges in part:

... FCPS Regulation 2603.2 and its application unconstitutionally violates the Petitioner’s sincerely held philosophical and religious beliefs by compelling her to refer to “[s]tudents who identify as gender-expansive or transgender [] by their chosen name and pronoun ....

... [They] further unconstitutionally violate the Petitioner’s philosophical and religious beliefs by compelling her to share a restroom with a biological male.

... [They] unconstitutionally discriminate against the Petitioner on the basis of her sex by requiring her to use a private restroom to remain consistent with her beliefs while allowing a biological male to use the female restroom... [and by permitting] a biological male to feel safe and comfortable by having full access to any restroom of his choice while not allowing the Petitioner to feel safe and comfortable by using the restroom of her biological sex....

... FCPS has knowingly and blatantly violated the Petitioner’s rights by forcing her to accept the ideological viewpoint of the government and the claimed rights and privileges of other students.

America First Legal issued a press release announcing its filing or the lawsuit. FFXNow reports on the lawsuit.

Alabama Passes Law Protecting IVF Clinics from Liability

Reacting to the recent Alabama Supreme Court decision holding that the state's wrongful death statute applies to the negligent destruction of frozen embryos created during IVF treatment, the Alabama legislature yesterday passed, and Governor Kay Ivey immediately signed SB159 (full text) which provides in part:

Related to in vitro fertilization and notwithstanding any provision of law ..., no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization....

... [N]o criminal prosecution may be brought for the damage to or death of an embryo against the manufacturer of goods used to facilitate the in vitro fertilization process or the transport of stored embryos.

The statute explicitly has retroactive effect. NPR reports on the new law.

Thursday, March 07, 2024

Virginia Legislature Passes Symbolic Bill Recognizing Same-Sex Marriages

In Virginia, Governor Glenn Youngkin has until tomorrow to decide whether or not to sign HB 174/ SB 101 (full text) which provides:

No person authorized by § 20-14 to issue a marriage license shall deny the issuance of such license to two parties contemplating a lawful marriage on the basis of the sex, gender, or race of such parties. Such lawful marriages shall be recognized in the Commonwealth regardless of the sex, gender, or race of the parties.

Religious organizations and members of the clergy acting in their religious capacity shall have the right to refuse to perform any marriage.

As reported by Dogwood, the bill was introduced because of concern that the U.S. Supreme Court might overrule its caselaw protecting same-sex marriages. Even if the Governor signs the bill, its impact on same-sex marriages would only be symbolic since the Virginia Constitution Sec. 15-A prohibits recognition of same-sex marriages in the state and would take precedence over the statute if the U.S. Supreme Court returned the issue of recognition of same-sex marriages to the states.

9th Circuit Grants En Banc Rehearing in Huntsman's Suit Against LDS Church

In an Order (full text) issued March 1, the U.S. 9th Circuit Court of Appeals voted to grant en banc review in Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints. In doing so, the Order vacates the decision of the 3-judge panel in the case in which James Huntsman, a prominent former member of the LDS Church who had contributed over $2.6 million to it, charged the Church with fraudulently misrepresenting the manner in which funds from tithes would be used. (See prior posting.) Arguments in the rehearing are set for June 24. ABC News 4 reports on the court's action.

Wednesday, March 06, 2024

Christian Organization Challenges Grant Rule Barring Religious Favoritism in Hiring

Suit was filed this week in an Oregon federal district court challenging an anti-discrimination rule of the Oregon Department of Education that disqualified a Christian youth-mentoring ministry from receiving $410,000 in grants for which it had initially been selected. The Christian group requires all of its board members, its 30 employees and 100+ volunteers to adhere to the organization's Statement of Faith. The Grant Program's rule bars grantees from favoring co-religionists as employees or volunteers. The complaint (full text) in Yourh 71Five Ministries v. Williams, (D OR, filed 3/4/2024), contends that the rule violates its Free Exercise and Free Expression rights, saying in part:

Because it emphasizes one-to-one mentoring and creating authentic, trusting relationships, 71Five Ministries depends on its staff and volunteers to fulfill the ministry’s distinctly Christian mission and purpose....

Defendants cannot disqualify otherwise eligible religious organizations from participation in otherwise available government benefit programs, including the Youth Community Investment Grant Program, “solely because of their religious character,”

ADF issued a press release announcing the filing of the lawsuit.

Man Sentenced To 1 Year + For Threatening Synagogue Shooting

According to a press release from the U.S. Attorney's Office for the Western District of Michigan, on Monday a 20-year old Michigan man was sentenced to 12 months and one day in prison, 3 years of supervised release and restitution payment of $10,648 for sending numerous Instagram messages threatening a mass shooting at an East Lansing, MI synagogue. Notes on defendant's cell phone indicated that he planned to commit suicide after the mass shooting.

Tuesday, March 05, 2024

France Adds Abortion Rights to Its Constitution

As reported by AP, France's Parliament yesterday gave final approval to a Constitutional amendment that guarantees abortion rights:

The measure was approved in a 780-72 vote in the Palace of Versailles. Abortion enjoys wide support in France across most of the political spectrum, and has been legal since 1975....

Both houses of France’s parliament, the National Assembly and Senate, had separately adopted a bill to amend Article 34 of the French Constitution, but the amendment needed final confirmation by a three-fifths majority in the special joint session. The measure specifies that “the law determines the conditions by which is exercised the freedom of women to have recourse to an abortion, which is guaranteed.”...

The government argued in its introduction to the bill that the right to abortion is threatened in the United States, where the Supreme Court in 2022 overturned a 50-year-old ruling that used to guarantee it....

Christian Employers Protected from Requirement to Provide Insurance for Gender Transition Procedures

In Christian Employers Alliance v. U.S. EEOC, (D ND, March 4, 2024), a North Dakota federal district court enjoined the Department of Health and Human Services from enforcing the Affordable Care Act, and the EEOC from enforcing Title to require the Christian Employers Alliance or its present or future members to provide their employees insurance coverage for gender transition procedures. The court said in part:

... [I]f CEA had to comply with these mandates, its members would have to violate their sincerely held religious beliefs which is an impermissible exercise under the First Amendment and RFRA. ...

While protecting the right of transgender patients to access crucial healthcare and protecting workers from sex discrimination is certainly a compelling interest, the Defendants here have done nothing more than identify a broadly formulated interest in an attempt to justify the general applicability of the government mandates.... Even if the Court were to accept the Defendants’ purpose for the mandates as a compelling interest, the Defendants failed to provide any evidence showing this policy was the only feasible means to achieve its compelling interest....

Just The News reports on the decision.

Right Wing Catholic Website Will Close Down After Settling Defamation Lawsuit

AP reports on the imminent closing of the Church Militant website following the website's settlement of a defamation lawsuit. According to AP:

A far-right, unofficial Catholic media website has agreed to pay $500,000 to a New Hampshire priest who sued for defamation over a 2019 article that it now disavows. The website also is planning to shut down soon, the priest’s attorney says.

The apology by Church Militant [full text] came after the organization agreed last week to a federal court judgment in favor of the Rev. Georges de Laire, an official with the Diocese of Manchester. This legal setback comes just months after its founder’s resignation over a breach of its morality clause.

“As part of the parties’ resolution, Church Militant has represented that it will be shutting down at the end of April,” attorney Howard Cooper of the Boston law firm Todd & Weld, which represented de Laire, said via email....

Church Militant and its sleek newscasts drew a loyal following for years with a mix of fiercely right-wing politics and radically conservative Catholicism in which many of America’s bishops were viewed with suspicion and disgust. It “is not recognized as a Church apostolate” and lacks authorization to promote itself as Catholic, according to the Archdiocese of Detroit, in whose territory it is based....

The full AP article has additional details.

UPDATE: On March 7, AP reports that in the settlement of a lawsuit the city of Baltimore has agreed to pay $275,000 toward the legal fees incurred by St. Michael's Media, the parent of Church Militant. The suit successfully prevented the city from cancelling a protest rally against Catholic Bishops. (See prior posting.)

Certiorari Denied in Ministerial Exception Case

Yesterday the U.S. Supreme Court denied review in two companion appeals, Bowes v. Liberty University, Inc. (Docket No. 23-550) and Liberty University, Inc. v. Bowes (Docket No. 23-703, certiorari denied 3/4/2024) (Order List.). The three judges on the 4th Circuit panel deciding the case below each had a different view on application of the ministerial exception doctrine in this age discrimination case brought by a Liberty University art professor. (See prior posting.) The case also posed other interpretive questions under Title VII of the 1964 Civil Rights Act.

Monday, March 04, 2024

9th Circuit En Banc Refuses to Bar U.S. Transfer of Sacred Apache Site to Copper Mining Company

In Apache Stronghold v. United States, (9th Cir., March 1, 2024), the U.S. 9th Circuit Court of Appeals sitting en banc, by a vote of 6-5, refused to enjoin the government from transferring to a copper mining company federally-owned forest land that is of significant spiritual value to the Western Apache Indians. The land sits on the third largest deposit of copper ore in the world. The case generated six separate opinions spanning 241 pages. The court's per curiam opinion summarizes the holding:

A majority of the en banc court ...concludes that (1) the Religious Land Use and Institutionalized Persons Act of 2000 ... and the Religious Freedom Restoration Act ... are interpreted uniformly; and (2) preventing access to religious exercise is an example of substantial burden. A majority of the en banc court therefore overrules Navajo Nation v. U.S. Forest Service to the extent that it defined a “substantial burden” under RFRA as “imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions (Yoder).”...

A different majority ...concludes that (1) RFRA subsumes, rather than overrides, the outer limits that the Supreme Court’s decision in Lyng v. Northwest Indian Cemetery Protective Ass’n ... places on what counts as a governmental imposition of a substantial burden on religious exercise; and (2) under Lyng, a disposition of government real property does not impose a substantial burden on religious exercise when it has “no tendency to coerce individuals into acting contrary to their religious beliefs,” does not “discriminate” against religious adherents, does not “penalize” them, and does not deny them “an equal share of the rights, benefits, and privileges enjoyed by other citizens.”... The same majority holds that Apache Stronghold’s claims under the Free Exercise Clause and RFRA fail under these Lyng-based standards and that the claims based on the 1852 Treaty fail for separate reasons.

We therefore AFFIRM the district court’s order denying the motion for a preliminary injunction.

Becket issued a press release announcing the decision and saying in part: "With the help of Becket, Apache Stronghold has vowed to appeal the decision to the U.S. Supreme Court." Los Angeles Times reports on the decision.

RLUIPA Safe harbor Does Not Extend to Claims for Monetary Damages

In Bair Brucha Inc. v. Township of Toms River, New Jersey, (D NJ, Feb. 29, 2024), a New Jersey federal district court granted plaintiffs judgment on the pleadings on their RLUIPA and Free Exercise challenges to discriminatory land use regulations that prevented their construction of a synagogue. Plaintiffs claimed that Toms River had engaged in an orchestrated effort to prevent the growth of the Orthodox Jewish population in the town. Subsequent to the filing of this lawsuit, the township amended its zoning regulations in a settlement of a RLUIPA suit brought by the Justice Department. Plaintiffs did not deny that their original regulations violated the Equal Terms and the Exclusion and Limits provisions of RLUIPA. However, they contended that since the zoning ordinances have subsequently been amended, the township is covered by the safe harbor provision in RLUIPA that shields a local government from the preemptive force of RLUIPA if it subsequently amends its land use regulations to remove the burdensome or discriminatory provisions. The court held that the safe harbor provision does not extend to claims for monetary damages incurred before the township took corrective action.

Also finding a violation of the Free Exercise clause, the court concluded that the land use regulations were neither neutral nor generally applicable and that antisemitic animus was a motivating factor behind the land use regulations.

Saturday, March 02, 2024

Title VI Claims Against Universities Proliferate Since Israel-Gaza Conflict

As previously reported, in November 2023 the Department of Education issued a "Dear Colleague" letter in response to rising levels of antisemitic and Islamophobic incidents at schools and colleges since the October 7 Hamas attack on Israel and the Israeli response. The letter clarifies that even though Title VI does not specifically cover religious discrimination, many types of antisemitic and Islamophobic attacks fall under other types of discrimination covered by Title VI. The Forward yesterday reported that it has tracked 48 Title VI investigations by DOE's Office of Civil Rights filed since November charging higher education institutions with antisemitism, Islamophobia or similar discrimination, as well as ten lawsuits filed by private parties making similar contentions filed since then. It has published a detailed listing of all the investigations and cases it has tracked. The Forward explains:

When Ken Marcus took over the department’s civil rights office during the George W. Bush administration, he started looking for test cases for a new category of “shared ancestry” that would allow officials to investigate cases that touched on religion. He found one when a Sikh child in New Jersey was beaten by classmates who saw his turban and taunted him as “Osama,” a reference to the infamous Muslim terrorist.

Marcus believed that the discrimination wasn’t strictly religious in nature because the bullies weren’t intending to go after the boy’s Sikh identity. And it wasn’t obviously racial, either, since it was the turban that had drawn the bullies’ attention.

He authorized the department to investigate these types of cases under its authority to prohibit discrimination based on race or national origin, creating a new category called “shared ancestry.” Every subsequent administration has agreed that these cases fall under the department’s purview.

More controversial is the question of what, exactly, constitutes discrimination against Jews based on their shared ancestry. Marcus and many Jewish advocacy groups have taken the position that anti-Zionism — opposition to a Jewish state in Israel — is often antisemitic because many Jews identify with Israel as part of their shared ancestry.

Friday, March 01, 2024

LGBTQ+ Support Group Fights Texas AG's Demand for Information

Suit was filed this week in a Texas state trial court by PFLAG, a national support group for LGBTQ+ individuals and their families, seeking to set aside civil investigative demands from the Texas Attorney General's Office. PFLAG contends that the demands from the AG's Office indicate that the Attorney General is seeking to identify Texas families that are seeking gender-affirming care for their transgender adolescents. The investigative demands were issued under the Texas Deceptive Trade Practices Act. The petition (full text) in PFLAG, Inc. v. Office of the Attorney General of the State of Texas, (TX Dist. Ct., filed 2/28/2024), alleges in part:

The goal of the OAG in serving these Demands is neither to enforce Texas law, nor to protect Texas consumers under the DTPA. These Demands are a clear and unmistakable overreach by the OAG in retaliation for PFLAG successfully standing up for its members, who include Texas transgender youth and their families, against the OAG’s, the Attorney General’s, and the State of Texas’s relentless campaign to persecute Texas trans youth and their loving parents. While that retaliation is itself a reason to set aside the Demands, PFLAG is entitled to a temporary restraining order and temporary and permanent injunctive relief because the Demands violate PFLAG and its members’ rights to freedom of petition, speech and assembly and to be free from unjustified searches and seizures, are contrary to the OAG’s authority under the DTPA, and impermissibly seek to evade the protections afforded to PFLAG as a civil litigant.

In 2022, PFLAG successfully obtained temporary injunctive relief shielding its member families from the Texas Department of Family Protective Services’ (“DFPS”) operationalization of Governor Greg Abbott’s directive to investigate families of transgender youth who receive gender-affirming medical care for the treatment of gender dysphoria—a directive based on the Attorney General’s non-binding opinion claiming that necessary, evidence-based gender affirming medical treatment for transgender youth is per se “child abuse” under Texas law.... And in 2023, PFLAG successfully obtained a temporary injunction at the district court enjoining enforcement of Senate Bill 14 ... which seeks to prohibit the provision and state funding of gender-affirming medical care for the treatment of gender dysphoria of transgender adolescents.....

Through the OAG’s own actions, discovery has been stayed in both [cases].... But through these Demands, the OAG seeks to circumvent the normal discovery process along with its attendant protections, and in so doing, seeks to chill the ability of PFLAG and its members to exercise their free speech and associational rights and avail themselves of the courts when their constitutional rights are threatened.

ACLU issued a press release announcing the filing of the lawsuit. AP reports on the lawsuit.

Jewish Students Sue Columbia University Charging Pervasive Antisemitism

Suit was filed last week in a New York federal district court by Jewish and Israeli students at Columbia University charging the University with widespread antisemitism. The complaint (full text) in Students Against Antisemitism, Inc. v. Trustees of Columbia University in the City of New York, (SDNY, filed 2/21/2024) alleges violations of Title VI of the 1964 Civil Rights Act, of New York state and city Human Rights and Civil Rights Laws, breach of contract and deceptive business practices. The 114-page complaint reads in part:

Columbia ... has for decades been one of the worst centers of academic antisemitism in the United States. Since October 7, 2023, when Hamas terrorists invaded Israel ...antisemitism at Columbia has been particularly severe and pervasive....

Columbia’s antisemitism manifests itself in a double standard invidious to Jews and Israelis. Columbia selectively enforces its policies to avoid protecting Jewish and Israeli students from harassment, hires professors who support anti-Jewish violence and spread antisemitic propaganda, and ignores Jewish and Israeli students’ pleas for protection. Those professors teach and advocate through a binary oppressor-oppressed lens, through which Jews, one of history’s most persecuted peoples, are typically designated “oppressor,” and therefore unworthy of support or sympathy. Columbia permits students and faculty to advocate, without consequence, for the murder of Jews and the destruction of Israel, the only Jewish country in the world....

... Columbia has permitted endemic antisemitism to exclude Jewish and Israeli students from full and equal participation in, and to deprive them of the full and equal benefits of, their educational experience at Columbia, and has invidiously discriminated against them by, among other things, failing to protect them in the same way Columbia has protected other groups.... [I]t has responded to antisemitism with at best deliberate indifference....

Columbia Spectator reports on the lawsuit.