Abortion Rights Proposals Approved by Voters In 7 of 10 States

In ten states yesterday, voters were asked to approve ballot measures that would guarantee abortion rights.  Voters approved proposals guaranteeing abortion rights in 7 of the 10 states.  Here are the results of those votes as of Wednesday morning. Ballotpedia has details of each proposal and updated vote figures:

• Arizona- 61.74% in favor; 38.26% opposed (50% of precincts reporting)
  
  
• Colorado- 61.48% in favor; 38.52% opposed (73% of precincts reporting)
  
  
• Florida- 57.13% in favor; 42.87% opposed (60% vote needed to approve the constitutional amendment) (93% of precincts reporting)
  
  
• Maryland- 74.11% in favor; 25.89% opposed (76% of precincts reporting)
  
  
• Missouri- 51.85% in favor; 48.15% opposed (95%+ of precincts reporting)
  
  
• Montana- 57.44% in favor; 42.56% opposed (87% of precincts reporting)
  
  
• Nebraska- pro-abortion rights proposal: in favor 48.66%; opposed 51.34%.  Abortion ban after first trimester proposal: in favor 55.32%; opposed 44.68% (99% of precincts reporting)
  
  
• Nevada- 63.33% in favor; 36.67% opposed (84% of precincts reporting)
  
  
• New York- 61.51% in favor; 38.49% opposed (85% of precincts reporting)
  
  
• South Dakota- 40.28% in favor; 59.72% opposed (91% of precincts reporting)

Eviction Did Not Violate Plaintiff's Free Exercise Rights

In Wexler v. City of San Diego, California, (SD CA, Nov. 4, 2024), a California federal district court rejected plaintiff's claim that his free exercise rights were violated when he was evicted from rental property he had occupied for a few days. The court said in part:

Plaintiff alleges that Defendant Dup-A-Key harmed him by changing the rental unit’s door locks on the Sabbath....  Plaintiff alleges harm from Defendant Rough Rider Real Estate because he “had to record” Defendant’s employee drilling of a “No Trespass” sign onto the property on the Sabbath.... Plaintiff further alleges harm from Defendant Police Officers because the alleged unlawful eviction occurred on the Sabbath....  However, these actions are not violations under the Free Exercise Clause.  Plaintiff has not alleged that Defendants Dup-A-Key and Rough Rider Real Estate were government entities.  Nor does Plaintiff sufficiently allege that any government policy was not neutral or not generally applicable.  Accordingly, the Court DISMISSES Plaintiff’s First Amendment § 1983 claims against all Defendants with leave to amend.

The court also rejected a variety of other challenges to the eviction alleged by plaintiff, including a claim that police officers discriminated against him because he mentioned to them that he was an Orthodox Jewish person.

6th Circuit Grants En Banc Rehearing in Challenge to School's Ban on Misgendering Fellow Students

In Parents Defending Education v. Olentangy Local School District, (6th Cir., Nov. 1, 2024), the U.S. 6th Circuit Court of Appeals sitting en banc vacated a decision issued in July by a 3-judge panel (see prior posting) and granted a rehearing en banc in a free speech challenge to a school district's anti-bullying and anti-harassment policies. At issue are policies that prohibit students from using pronouns that are inconsistent with another student’s gender identity if the use amounts to harassment. In a 2-1 decision in July, the panel rejected the challenge saying in part that "[T]he District’s position that students may communicate their belief that sex is immutable through means other than the use of nonpreferred pronouns, indicate that the District is not attempting to prohibit any viewpoints."

George Mason Law Students Sue Claiming "No-Contact" Order Violates Their Free Speech and Free Exercise Rights

Suit was filed last week in a Virginia federal district court by two Christian female law students at George Mason University contending that a "no-contact" order issued against them by the University's DEI Office violates their free speech and free exercise rights. The complaint (full text) in Ceranksoky v. Washington, (ED VA, filed 11/1,2024), relates that plaintiffs were ordered to avoid contact, including through social media, with a classmate (identified in the complaint only as Mr. Doe) who is the Law School's representative on the Graduate and Professional Studies Assembly. Through an online chat platform, Mr. Doe proposed having hygiene products available in men's rest rooms as well as in women's in order to accommodate transgender men. According to the complaint:

5. [Plaintiff posted] ... her concern that if GMU adopted a policy “allow[ing] biological females into male restrooms to access period products as ‘trans men,’” then that would mean “female bathrooms will welcome male occupants.” She asked her classmate to “recognize the concerns of biological female students” and how they would feel “considerably uncomfortable if there are males using private women’s spaces on campus.” She noted that “[w]omen have a right to feel safe in spaces where they disrobe.” ...

7. Their classmate, who had claimed to be their representative to the student government and initially promised to “advocate for all” students and viewpoints, responded by mocking their concerns and labeling their views as bigoted for questioning others’ gender identity. 

8. Two weeks later ... [plaintiffs] received no-contact orders from GMU’s Office of Diversity, Equity, & Inclusion (“DEI Office”), prohibiting them from having any contact with their classmate....

152....  Defendants have singled out Plaintiffs’ expression and prevented them from engaging in religious expression with Mr. Doe.

153. Defendants’ no-contact orders have also chilled Plaintiffs from engaging in religious expression with other students at the Law School or the rest of GMU....

175.  Plaintiffs are motivated by their sincerely held religious beliefs to speak on-campus on many topics from a Christian worldview. Plaintiffs believe their on-campus speech is a way to share the Gospel of Jesus Christ with non-Christians and a way to disciple and equip other Christians on campus to grow and mature in their faith.

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

Homeless Shelter Can Limit Hiring to Coreligionists

In Union Gospel Mission of Yakima, Wash. v. Ferguson, (ED WA, Nov. 1, 2024), a Washington federal district court granted a preliminary injunction to a religious organization that operates a homeless shelter and thrift stores. The injunction bars the state's attorney general from enforcing the Washington Law Against Discrimination (WLAD) against plaintiff for limiting all its hiring to coreligionists who adhere to the organization's religious tenets and behavior requirements. In 2021 the Washington Supreme Court interpreted the exemption in the WLAD for non-profit religious organizations to apply only to hiring for ministerial positions. The federal district court here held that the WLAD is subject to strict scrutiny since it is not a neutral, generally applicable law. It treats religious organizations differently than secular employers who are exempt if they have fewer than eight employees. According to the court, a less restrictive way of advancing the state's interest is to exempt all employees of nonprofit religious organizations as Washington had done before the state Supreme Court decision narrowing the interpretation of the WLAD exemption. An ADF press release has additional background.

Recent Articles of Interest

From SSRN:

• Ruth Colker, Christian Domination, (Ohio State Legal Studies Research Paper No. 885 (2024)),
• Kathleen Brady, Law, Religion, and Education, (in Faith in Law, Law in Faith: Reflecting and Building on the Work of John Witte, Jr. (Rafael Domingo et al. eds., 2024) (forthcoming)).
• Richard Kenneth Sherwin, Constitutional Over-Belief: Affective Intensity as a Function of Law's Legitimation, (September 18, 2024).
• Jeffrey R. Baker, Christian Realism and the Sins of Mass Incarceration, (Georgia Criminal Law Review (forthcoming 2025)).
• Richard Kenneth Sherwin, The Challenge of Legal Chorology: Rethinking Political Theology, (September 18, 2024).
• Nomi Maya Stolzenberg, The Protestant (Dis)Establishment: Its Overlooked Role in the Ongoing Battles Over Religious Liberty (A Prospectus), (August 26, 2024).
• Nomi Maya Stolzenberg, The Legal Imagination and the Protestant (Dis) Establishment, (September 10, 2024).
• Dr. Allah Ditta Qadri, Hafiz Muhammad Usman & Dr. Irshad Hussain, Islamic Distinctiveness and Prohibition of Imitation of Non-Muslims: A Rational Review, (September 22, 2024).

From SmartCILP:

• John Fee, Harmonizing Freedom of Speech and Free Exercise of Religion, 32 William & Mary Bill of Rights Journal 677-720 (2024).
• Allan Walker Vestal, Tax-Funded Education Savings Account Payments to Religious Schools Violate State Constitution Compulsion Guarantees: The Iowa Example, 32 William & Mary Bill of Rights Journal 771-844 (2024).

9th Circuit Reinstates Claim of Christian-Israelite Inmate Who Was Refused Passover Diet

In Fuqua v. Raak, (9th Cir., Nov. 1, 2024), the U.S. 9th Circuit Court of Appeals partially reversed an Arizona federal district court's dismissal of a suit by Michael Fuqua, a Christian-Israelite (Christian Identity) state prison inmate who was refused Passover dietary meals. The prison chaplain and other prison officials denied Fuqua's request for a Kosher for Passover diet on the ground that Fuqua's belief that Christian-Israelites were descended from the Tribes of Israel was wrong.  Officials said that supporting materials furnished by Fuqua suggested that he only needed to observe Passover with a memorial service using flatbread and grape juice. In reversing the trial court's grant of summary judgment to defendants on Fuqua's free exercise and equal protection claims, the court said in part:

... [W]e conclude that a reasonable trier of fact could find that Fuqua was denied his requested dietary accommodation, not based on his failure to follow a neutral and valid procedural rule for requesting accommodations, but rather based on [Chaplain] Lind’s own theological assessment of the correctness and internal doctrinal consistency of Fuqua’s belief system.

The court however affirmed the trial court's grant of summary judgment for defendants on Fuqua's RLUIPA claim, saying in part:

that the Spending Clause does not allow Congress to impose individual damages liability on state or local officials who are not themselves the recipients of federal funds.

In Fuqua v. Ryan, (9th Cir., Nov. 1, 2024) (unpublished), the 9th Circuit upheld the dismissal of Fuqua's free exercise claims against two correctional officers because there was no evidence that they were personally involved in the challenged actions. It upheld dismissal of claims against the kitchen manager on qualified immunity grounds. It also upheld the trial court's refusal to allow Fuqua to read from his Bible on the witness stand, saying in part:

The district court did not abuse its discretion in holding that, while Fuqua could explain the sincerity of his religious beliefs by reference to relevant scriptural passages, he did not need to have a physical Bible with him on the stand or to read the relevant passages verbatim.

Ballot Measures to Watch in Tuesday's Elections

Tuesday's elections around the country will feature an unusually large number of ballot measures of particular interest to Religion Clause readers. According to Ballotpedia, there will be eleven proposals on abortion rights:

• Arizona Proposition 139
• Colorado Amendment 79
• Florida Amendment 4
• Maryland Question 1
• Missouri Amendment 3
• Montana CI-128
• Nebraska Initiative 434 and Initiative 439 (competing proposals)
• Nevada Question 6
• New York Proposal 1 (also includes sexual orientation, gender identity and other issues)
• South Dakota Constitutional Amendment G

Voters in three states will cast ballots on repeal of now unenforceable bans on same-sex marriage: California, Colorado, Hawaii. The California proposal would also affirmatively guarantee the right to marry.

Colorado proposal would guarantee the right to school choice and parental control of their children's education. A Kentucky proposal would allow state funding for students in non-public schools. A Nebraska referendum asks voters whether to repeal a state law providing for an educational scholarship program for students in non-public schools.

American United's magazine Church & State discusses Tuesday ballot measures relating to church-state separation that will be presented to voters in eleven states.

Hospital Employee Who Refused Covid Nasal Swab Testing Is Entitled to Unemployment Benefits

 In St. Luke's University Hospital v. Unemployment Compensation Board of Review, (PA Commonw. Court, Nov. 1, 2024), a Pennsylvania state appellate court upheld a decision by the Pennsylvania Unemployment Compensation Board of Review that a former employee of plaintiff hospital was entitled to unemployment benefits because her objections to Covid testing, which led to her firing, were religious. The hospital required all its employees to either obtain a Covid vaccination or, if they were granted a religious exemption, to undergo weekly nasal swab Covid testing. Employee Christine Puello objected to swab testing, contending in part:

Inserting a nasal swab with contaminants into my body violates my conscience and my sincerely held religious beliefs as I have previously described in my religious exemptions.  I am willing to submit my saliva under observation for weekly COVID[-19] testing which eliminates any invasiveness and preserves my dignity of one less object/contaminant entering my body.

The court concluded:

While Claimant did cite safety concerns as a secondary reason for refusing nasal swab testing, the record makes clear that her primary objection was religious and not secular in nature.  The Board credited Claimant’s testimony that this method of testing was prohibited by the tenets of her religion and determined she had good cause to refuse it.

6th Circuit Hears Oral Arguments in Transgender Bathroom Access Case

On Tuesday, the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Doe No. 1 v. Bethel Local Board of Education, (6th Cir., Docket No. 23-3740). In the case, an Ohio federal district court (see prior posting) dismissed a wide-ranging group of challenges-- including due process, equal protection and free exercise challenges-- to a school board policy allowing students to use school bathrooms corresponding to their gender identity. Ohio Capital Journal reports on the oral arguments.

7th Circuit Hears Oral Arguments Challenging Schol's Derecognition of "Students For Life" Club

On Tuesday, the U.S. 7th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in E. D. v. Noblesville School District, (7th Cir., Docket No. 24-1698), In the case (E.D. v. Noblesville School District, SD IN, March 15, 2024), an Indiana federal district court dismissed various First Amendment and other claims against a school district and district officials who derecognized a high school Students For Life Club on the ground that it was not entirely run by students.  The derecognition followed lengthy discussions over the club's advertising flyers. ADF issued a press release announcing the oral arguments.

2nd Circuit: FBI Agents Had Qualified Immunity From RFRA Damages When Muslim Plaintiffs' Religious Objections Were Undisclosed

In Tanvir v. Tanzin, (2d Cir., Oct. 29, 2024), the U.S. 2nd Circuit Court of Appeals dismissed on qualified immunity grounds a case in which the U.S. Supreme Court in 2020 held (see prior posting) that the Religious Freedom Restoration Act permits suits for damages against federal officials. The 2nd Circuit said in part:

... [E]ach of the three Appellants in this case encountered various FBI agents who asked him to serve as an informant in Muslim communities, and each was illegitimately placed or retained on the No Fly List when he declined. Each Appellant possessed a belief, allegedly shared by some other Muslims, that precluded him from serving as an informant in a Muslim community. But no Appellant ever disclosed that view to any agent. Instead, each stated that he: (1) refused to work as an informant because being an informant would endanger himself or his family, or (2) would agree to work as an informant under the right circumstances....

Appellees had no reason to know that their actions encroached on the Appellants’ religious beliefs. As noted above, “[e]ven when we find a right clearly established,” officials are still immune from damages liability if “reasonable persons in their position would not have understood that their conduct was within the scope of the established prohibition.”...

We recognize the Appellants’ view that Muslims in America have been unfairly targeted. But we disagree with their conclusion that a Christian or Jewish plaintiff in like circumstances would have greater success in a RFRA damages suit. No doubt, many would find any effort to recruit informants to infiltrate religious congregations, including Muslim, as well as Christian or Jewish congregations, offensive. We have no reason to assume, however, that a reasonable government official would know that a Christian or Jew could not work with government agents to expose terrorists in her religious community without violating her religious norms. It is far from obvious – indeed, it cannot be the case – that an adherent of either of those (or any) religions could hold an undisclosed religious belief, of which an official had no other reason to know, and then successfully sue the official for monetary damages for pressuring them to act in tension with that undisclosed belief.

Nothing in this ruling should be construed as approving the conduct alleged in the complaint. At its core, the complaint alleges that government agents pressured individuals to serve as informants – at risk to their own and their families’ safety – and to report on the activities of their neighbors and community members by falsely and in bad faith accusing them of terrorism to deny them significant liberties under a program designed to protect lives from genuine terrorists. That is improper behavior, regardless of whether the agents knew of the Appellants’ particular religious beliefs. But in this case, the Appellants’ only remaining legal claim is that the Appellee agents are personally liable in damages for violating their free exercise of religion under RFRA. On the facts alleged, for the reasons discussed above, that claim fails.

6th Circuit Hears Oral Arguments on DOE's Interpretation of Title IX to Include Gender Identity Discrimination

Yesterday the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in State of Tennessee v. Cardona. In the case, a Kentucky federal district court barred enforcement against Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia of the Department of Education's rules that interpret Title IX's ban on sex discrimination to include discrimination against transgender students and faculty by institutions receiving federal financial assistance. Bloomberg Law reports on the oral arguments.

President Biden Speaks At White House Diwali Reception

Today is Diwali, or more precisely, the high point of the 5-day Diwali celebration. The holiday is celebrated in various ways by Hindus, Sikhs, Jains and Buddhists. On Monday evening, President Biden hosted a Diwali celebration at the White House. In his remarks at the reception (full text), the President said in part:

In late November 2016, a dark cloud formed from hate and hostility toward immigrants, including South Asian Americans, that we hear once again in 2024.  It was then that Jill and I hosted the first Diwali reception, and it was at the vice president’s residence, an Irish Catholic president — vice president, at the time — opening our home for a holiday celebration by Hindus, Bi- — Buddhists, Jains, Sikhs, and more.  How America — how America can remind us all of our power to be the light, all of us. 

Now, as president, I’ve been honored to host the biggest Diwali receptions ever at the White House.  (Applause.)