Alabama Enjoined From Enforcing Ban On Medical Treatments For Transgender Minors

In Eknes-Tucker v. Marshall, (MD AL, May 13, 2022), an Alabama federal district court issued an injunction pending trial of  the portion of the Alabama Vulnerable Child Compassion and Protection Act that restricts transgender minors from being treated with puberty blockers and hormone therapies. The court said in part:

Parent Plaintiffs have a fundamental right to direct the medical care of their children. This right includes the more specific right to treat their children with transitioning medications subject to medically accepted standards. The Act infringes on that right and, as such, is subject to strict scrutiny. At this stage of litigation, the Act falls short of that standard because it is not narrowly tailored to achieve a compelling government interest. Accordingly, Parent Plaintiffs are substantially likely to succeed on their Substantive Due Process claim,

The court also found that parents were substantially likely to succeed on their equal protection challenge because "discrimination based on gender-nonconformity equates to sex discrimination." GLAD and other advocacy groups representing plaintiffs issued a press release announcing the decision.

Space Force Captain With Religious Objections To Vaccine Mandate Is Denied Injunction

In Creghan v. Austin, (D DC, May 12, 2022), the D.C. federal district court refused to grant a preliminary injunction to a captain in the U.S. Space Force who has religious objections to the military's COVID vaccine mandate,  The military refused to grant her a religious accommodation, but has not taken steps to separate from the military. The court said in part:

As the Court explained in a similar case, requests for religious exemptions from military-mandated medical requirements “raise particularly difficult questions that implicate a storm of colliding constitutional interests.” Navy SEAL v. Austin, 2022 WL 1294486, at *1 (D.D.C. Apr. 29, 2022). Although this case is much closer than Navy SEAL, the Court remains concerned that it lacks the competence to “evaluate the merits of military [epidemiological and tactical] expertise” or to “weigh technical issues of public health and immunology” necessary to resolve the case. Id. at *5. Justiciability is all the more uncertain given the unfixed, evolving science on which this vaccination mandate is based. These concerns permeate the merits of Plaintiff’s claims as well.

Intervenors Say USAF Senior Leaders Told To Deny All Religious Exemptions To Vaccine Mandate

In a Memorandum In Support of a Preliminary Injunction (full text) filed on behalf of 230 intervening plaintiffs in Doster v. Kendall, (SD OH, filed 5/3/2022), plaintiffs allege:

The 2021 CORONA Conference was held at  the United States Air Force Academy. (Id.) Whistleblowers have reported that all Chaplains and all persons other than those MAJCOM commanders responsible for adjudicating accommodation requests to the Air Force’s vaccine mandate, were asked to leave the room, so that the Secretary of the Air Force’s expectations concerning religious accommodation requests could be communicated to Air Force senior leaders....  Upon information and belief, the Secretary of the Air Force and/or his designees, communicated that no religious accommodations could or should be approved for anyone who would be remaining in the Department of the Air Force....

As of the date of the Intervening Complaint, the Department of the Air Force has received thousands of requests for religious accommodation, has only approved 42 – all of them at the end of their careers, who were otherwise eligible for an administrative exemption, and has denied 5,129 initial requests; and 1,692 final appeals, for a total of 6, 821 denials. In the meantime, the Air Force currently has granted 1,013 medical exemptions, and 1,273 administrative exemptions....  As of April 12, the Air Force has administratively separated 261 active-duty Airmen.... The granting of more than two thousand medical and administrative exemptions belies any assertion that vaccination is mission-critical and that no exemptions can be granted....

(See prior related posting.) Coffee or Die Magazine reports on the filing.

Tribe Is Required Party In Challenge To Directive On Repatriation of Native American Remains

 In Weiss v. Perez, (ND CA, May 10, 2022), a California federal district court dismissed a suit brought by a San Jose State University anthropology professor who objects to the University president's directive that denied her access to Native American remains housed at the University. The directive was issued to prepare the remains for repatriation to the Muwekma Ohlone Tribe. Plaintiff, Prof. Elizabeth Weiss is an opponent of repatriation. The court held in part:

The Court finds that the Muwekma Ohlone Tribe is a required party under Rule 19 to adjudication of Professor Weiss’s claims about the Directive. Because the Tribe has sovereign immunity from suit and thus cannot be joined, Professor Weiss’s claims regarding the Directive must be dismissed with prejudice. The Court will, however, give Professor Weiss leave to amend her complaint as to her allegations about retaliation in the form of restricting access to and use of non-Native American remains and retaliation for her protected speech as it may pertain to her teaching and curational responsibilities.

Certiorari Filed On Whether Falun Gong Tables Are Protected Under FACEA

A petition for certiorari (full text) was filed yesterday in Zhang Jingrong v. Chinese Anti-Cult World Alliance, Inc., (Docket No. 21-1429, filed 5/10/2022). In the case, the U.S. 2nd Circuit Court of Appeals held that five tables on the sidewalk in Flushing, Queens, New York where Falun Gong adherents passed out flyers and displayed posters were not a "place of religious worship" under the Freedom of Access To Clinics Entrances Act that prohibits intentionally injuring, intimidating, or interfering with anyone who is exercising 1st Amendment religious freedom rights “at a place of religious worship.” (See prior posting.) [Thanks to James A. Sonne for the lead.]

Court Enjoins Part Of School's Policy On Transgender Students' Preferred Names

Ricard v. USD 475 Geary County, KS School Board, (D KS, May 9, 2022), is a suit brought by a Christian middle school math teacher who objects on religious grounds the school's policy of requiring teachers to refer to transgender students by their preferred names and pronouns, and requiring teachers not to disclose those names and pronouns to parents without the student's consent. A Kansas federal district court enjoined the school district from from disciplining the teacher for referring to a student by the student’s preferred name and pronouns in communications with the student’s parents in the regular course of the teacher's duties. The parties reached an agreement on the other aspect of the school's policy. The teacher would use students' preferred names, but not their preferred pronouns.

Plaintiff Lacks Standing To Challenge No-Fault Divorce Law Under 1st Amendment

 In King v. State of New York, (2d Cir., May 9, 2022), the U.S. 2nd Circuit Court of Appeals held that plaintiff lacked standing to challenge New York's no-fault divorce law on free exercise or Establishment Clause grounds. The court said in part:

Ms. King alleges that this law and the resulting divorce violated her Free Exercise and Establishment Clause rights by requiring her to become divorced despite her religious belief in marriage until death..... Because Ms. King alleges only the termination of a civil contract, she has not plausibly alleged that the civil judgment of divorce entered against her “sever[ed] the holy marriage covenant made before God,” ... or “chang[ed] her status under . . . the laws of God”....

Recent Articles Of Interest

From SSRN:

• Faraz Sanei, Reclaiming Establishment: Identity and the ‘Religious Equality Problem’, (71 U. Kans. L. Rev. __ (Forthcoming 2022)).
• Ansley McLellan, A Prayer For The Ministerial Exception: The Need for More Transparency and Less Rigidity in Certain Claims and Definitions, (September 20, 2021).
• Rakesh K. Anand, Reasoning About Faith: On the Religious Lawyer, (16 FIU L. Rev. 259 (2022)).
• Ioan Rotaru, Scientia Moralitas Conference Proceedings, (April 30, 2021).
• Olivia Roat, Free-Exercise Arguments for the Right to Abortion: Reimagining the Relationship Between Religion and Reproductive Rights, (UCLA Women's Law Journal, Vol. 29, No. 1, 2022).
• Philip Hackney, Written Testimony of Philip Hackney for the Hearing on Laws and Enforcement Governing the Political Activity of Tax-Exempt Entities, (U.S. Senate Finance Committee Subcommittee on Taxation and IRS Oversight, May 4, 2022).
• Zalman Rothschild, Individualized Exemptions, Vaccine Mandates, and the New Free Exercise Clause, (131 Yale L.J.F. 1106 (2022)).

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

• Jianlin Chen & Shao Yuan Chong, The Curse of the Lecherous Spiritual Charlatans: Law, Moral Panic and Newspaper Reports of Rape by Religious Fraud in Taiwan, (University of Pennsylvania Asian Law Review, Vol. 17, 89-136 (2022)).
• Samy Ayoub, A Theory of a State? How Civil Law Ended Legal Pluralism in Modern Egypt, (Journal of Law and Religion, Vol. 37, No. 1, 2022).
• James J. Friedberg, States and Laws, Jews and Palestinians: Yadgar's Traditionalist Alternative. A Reflection on Yadgar, Israel's Jewish Identity Crisis (Cambridge, 2020) (Intercultural Human Rights Law Review, Vol. 16 (2021)).
• Muhammad Munir, Consent of the Guardian in Islamic Law and Pakistani Legal System: An Introduction, (April 11, 2022).
• Raphaële  Xenidis, The Concept of Direct Discrimination in European Anti-Discrimination Law: Theory, Practice and Limits, (Forthcoming book chapter in Colm O’Cinneide, Julie Ringelheim, Iyiola Solanke (eds.), Research Handbook on European Anti-Discrimination Law).
• Jaafar Almashaal, Some Reservations by the Islamic States on Major Human Rights Treaties, (April 7, 2022).
• Lyla Latif, FinTech led Tax Justice: Redistribution Using Zakat for the Socio-Economic Improvement of Women, Kardan Journal of Social Sciences and Humanities 4 (2) 44–55 (2021).

From Elsewhere:

• Linda Greenhouse, Should Courts Assess the Sincerity of Religious Beliefs?, The Atlantic, May 5, 2022.

1st Circuit Hears Oral Arguments On Religious Exemption To School's Vaccine Mandate

The U.S. 1st Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Harris v. University of Massachusetts, Lowell.  In the case, a Massachusetts federal district court rejected a student's objections to the manner in which her request for a religious exemption from the school's COVID-19 vaccine requirement was handled. (See prior posting.)

Church Cannot Remove Cremated Remains Over Objections Of Families

In Church of the Holy Spirit of Wayland v. Heinrich, (MA App., May 5, 2022), a Massachusetts state appellate court held that a church which had sold its property was not free to relocate cremated remains buried in its churchyard over the objections of families of those buried there. In the case, an Episcopal parish that had ceased operating sold it church building and attached burial ground to a Coptic church.  The Coptic church wanted to develop the land; it also had religious objections to cremation. The court said in part:

[I]n the absence of a governing statute, common law trust principles apply to the disinterment of human remains from a dedicated burial ground until the families of the deceased have abandoned the remains or the burial ground is no longer recognizable as such....

It is uncontested that the Coptic church has a sincerely held opposition to cremation on religious grounds. The next question, however, is whether judicial relief in favor of the families would substantially burden the Coptic church's exercise of its religious beliefs.... [W]e fail to see how a judicial order preventing the Coptic church from removing those remains would constitute government interference with that church's free exercise of religion rights. And it bears noting that the unilateral disinterment of the remains potentially might implicate the families' own free exercise of religion rights.

The court also concluded that allowing two parties who had purchased burial rights for their own remains to be buried in the churchyard next to remains of their families would not infringe the free exercise rights of the Coptic church:

[I]t simply would prevent the Coptic church from interfering with rights that the individuals themselves hold in the property. Nor has the Coptic church demonstrated that such a judicial order could be seen as compelling it to endorse cremation.