Immigration Officials Violated Pastor's Free Exercise Rights

In Dousa v. U.S. Department of Homeland Security, (SD CA, March 21, 2023), a California federal district court held that U.S. immigration officials violated the free exercise rights of Kaji Dousa, a pastor at New York City's Park Avenue Christian Church. Dousa worked extensively with immigrants in Mexico and at the southern border.  The court concluded that her rights were violated when in December 2018 a U.S. Customs and Border Patrol official e-mailed the Mexican government urging it to deny the pastor entry into Mexico and to send her back to the United States. Dousa performed religious marriage ceremonies for immigrant couples with children entering the United States who were in common-law marriages. This made it more likely that they would not be subject to family separation in the U.S. The court said in part:

While the United States undoubtedly has a compelling state interest in protecting the border, Oliveri’s admission that the email was “[l]iterally, creative writing . . . [w]ithout any basis” indicates that there exists no substantial state interest in requesting that Mexican authorities deny entry to Dousa. And, as evidenced by the United States’ other investigative efforts, there exist more “narrowly tailored” approaches to achieve border security. Dousa therefore has established that the CBP violated her Free Exercise rights by restricting her ability to minister to migrants in Mexico.

The court however rejected Dousa's claim that the investigation of her activities violated her free exercise rights. The court ordered:

... Defendants SHALL COMMUNICATE in writing to appropriate Mexican immigration authorities that their request in Oliveri’s December 10, 2018 email is fully and immediately rescinded and revoked as to Dousa.

[Thanks to Heather Kimmel for the lead.] 

Moving of Confederate Monument Did Not Violate Plaintiffs' Religious Rights

In Edgerton v. City of St. Augustine, (MD FL, March 20, 2023), a Florida federal district court rejected plaintiffs' challenges to the city's moving a monument honoring Confederate Civil War veterans from City Park to a new location.  Among other things, the court rejected Establishment Clause and Free Exercise challenges, saying in part:

Plaintiffs allege that "the message [the monument] conveyed has changed over time[,] which demonstrates why the removal of it. . . appears hostile and offensive to those who use it for moments of respect, prayer, and remembrance of those long gone." ... Plaintiffs do not allege the City considered any of Plaintiffs' religious beliefs when it decided to remove and relocate the monument. Additionally, Plaintiffs provide no allegations of historical practices or understandings of similar instances of a city removing a monument, and such removal amounting to an Establishment Clause violation.

... Mr. Edgerton "expressed his religious beliefs by paying respect to the dead [soldiers] by praying at and protecting the 'empty tomb' of his 'Southern family[.]"... Mr. Ross alleges that he "had participated in prayer at the site" of the monument, but since it has been relocated, his ability to continue doing so is "nearly impossible."... Ms. Pacetti alleges that she "has freely exercised her right to Christian memorial expression of her deceased family member at the Plaza next to the [m]onument[.]"... Mr. Parham alleges that he "continued to visit the [m]onument after his father's death . . . exercising his religious memorial expressions.",,,

Accepting these allegations as true, Plaintiffs do not state a plausible violation of their Free Exercise rights. Plaintiffs can still exercise any and all of the beliefs they have alleged.... Plaintiffs do not allege facts that the City relocated the monument because of Plaintiffs' religious beliefs....

Presidential Proclamation Protects Sacred 500,000+ Acres in Nevada Under Antiquities Act

Yesterday, President Biden issued A Proclamation on Establishment of the Avi Kwa Ame National Monument (full text). The lengthy Proclamation sets aside 506,814 acres in southern Nevada, and items within that area, as protected under the Antiquities Act. The Proclamation reads in part:

The mountain and the surrounding arid valleys and mountain ranges are among the most sacred places for the Mojave, Chemehuevi, and some Southern Paiute people, and are also significant to other Tribal Nations and Indigenous peoples, including the Cocopah, Halchidhoma, Havasupai, Hopi, Hualapai, Kumeyaay, Maricopa, Pai Pai, Quechan, Yavapai, and Zuni....

For the Tribal Nations that trace their creation to Avi Kwa Ame, the power and significance of this place reside not just in the mountain itself, but radiate across the valleys and mountain ranges of the surrounding desert landscape containing the landmarks and spiritually important locations that are linked by oral traditions and beliefs.  Tribal Nations have shared those traditions and beliefs across many generations through ... origin songs, which are central to Tribal members’ knowledge of the landscape, enabling them to navigate across the diverse terrain, find essential resources, and perform healing, funeral, and other rituals....

This entire landscape is an object of historic and scientific interest requiring protection under ... the "Antiquities Act".... As well as being an object itself, the landscape contains innumerable individual geologic features, archaeological sites, and havens for sensitive and threatened species... and it provides habitat for centuries-old Joshua trees and other objects that are independently of historic or scientific interest and require protection under the Antiquities Act.  Some of the objects are also sacred to Tribal Nations; are sensitive, rare, or vulnerable to vandalism and theft; or are dangerous to visit and, therefore, revealing their specific names and locations could pose a danger to the objects or the public.

The White House also issued a Fact Sheet on the Proclamatioin. In another Proclamation issued yesterday, the President also created the Castner Range National Monument in El Paso, Texas. E&E News reports on these and related Presidential actions.

3rd Circuit: Qualified Immunity Can Be Asserted in RFRA Case, But Not in This One

In Mack v. Yost, (3rd Cir., March 21, 2023), the U.S. 3rd Circuit Court of Appeals in a 2-1 decision held that qualified immunity can be asserted as a defense by prison officers in a suit against them under RFRA, but also concluded that at the summary judgment stage here defendants had not shown facts demonstrating that they are entitled to the defense. The majority summarized its 48-page opinion in part as follows:

When Mack was incarcerated, he worked at the prison commissary, where two supervising prison guards singled him out for harassment because of his Muslim faith. Most significantly, the evidence as it now stands shows that, when Mack would go to the back of the commissary to pray during shift breaks, the guards would follow him and deliberately interfere with his prayers by making noises, talking loudly, and kicking boxes. Fearing retaliation if he continued to pray at work, Mack eventually stopped doing so, but the guards nevertheless engineered his termination from his commissary job. He then sued.

... The guards ... moved for summary judgment ... on the theory that they are entitled to qualified immunity.... [T]he District Court sided with them. It held that ... no clearly established caselaw would have put a reasonable person on notice of the illegality of the guards’ actions. Mack has again appealed.

We agree with Mack that granting summary judgment was wrong. While ... qualified immunity can be asserted as a defense under RFRA, the officers have not – at least on this record – met their burden of establishing that defense.... [E]vidence of the RFRA violation here involved significant, deliberate, repeated, and unjustified interference by prison officials with Mack’s ability to pray as required by his faith. Based on those facts ..., the officers are not entitled to qualified immunity. But if different facts come out at trial, the officers may again raise qualified immunity....

Judge Hardiman dissented, saying in part:

Even accepting the majority’s articulation of the right at issue, I would not find it clearly established here.

The cases Mack cites, as the majority notes, are not factually analogous. And the majority identifies no other precedent—from our Court or elsewhere, before or after RFRA was enacted—sufficiently similar to deny Defendants qualified immunity.

President Biden Sends Greeting To Those Celebrating Nowruz

Yesterday the White House issued a statement (full text) from President Biden and the First Lady extending best wishes to everyone celebrating Nowruz across the United States and around the world. Nowruz is the Persian New Year, celebrated in the Middle East, Central and South Asia, the Caucasus and parts of Europe. The Statement says in part:

This year, Nowruz comes at a difficult time for many families, when hope is needed more than ever—including for the women of Iran who are fighting for their human rights and fundamental freedoms. The United States will continue to stand with them, and all the citizens of Iran who are inspiring the world with their conviction and courage. And together with our partners, we will continue to hold Iranian officials accountable for their attacks against their people.

New Arkansas Law Authorizes Monument to Unborn Children on Capitol Grounds

As reported by ABC News, on Thursday Arkansas Governor Sarah Huckabee Sanders signed SB307 (full text) into law. The new law provides for a privately funded Monument To Unborn Children to be placed on the state Capitol grounds.  The monument is to commemorate "unborn children aborted during the era of Roe v. Wade..." The monument is to be funded by gifts, grants and donations from individuals and organizations.  The law also provides for legal defense of the monument if it is challenged, for maintenance of the monument and for replacement of it "if necessary due to catastrophic damage."

USCIRF Holds Hearing on Russian Violation of Religious Freedom Through Its Invasion of Ukraine

Last Wednesday, the U.S. Commission on International Religious Freedom held a virtual hearing on Russia's Invasion of Ukraine: Implications for Religious Freedom. (Video of full Hearing and transcripts of written presentations.) USCIRF described the hearings:

Since Russian President Vladimir Putin launched the full-scale military invasion of Ukraine a year ago, Russian forces have committed numerous religious freedom and other related human rights violations in Ukraine, including the killing and torture of religious leaders and the destruction of countless houses of worship. Russian officials have repeatedly turned to antisemitic rhetoric and Holocaust distortion in an effort to justify the country’s groundless invasion. In the areas of Ukraine that Russia has occupied since 2014, its de facto authorities and proxies have imposed draconian laws to suppress religious communities such as the Orthodox Church of Ukraine, predominantly Muslim Crimean Tatars and Jehovah’s Witnesses. Meanwhile, in Russia, the state has continued to prosecute an ever-growing list of religious groups as so-called “extremists” for their peaceful religious activities and launched a ruthless campaign to silence civil society and independent media.

Certiorari Denied in Challenge by Preacher to University's Speaker Permit Rule

The U.S. Supreme Court today denied review in Keister v. Bell, (Docket No. 22-388, certiorarari dened, 3/20/2023). (Order List.) In the case, the U.S. 11th Circuit Court of Appeals rejected a challenge to the University of Alabama's policy that requires a permit in order for a speaker to participate in expressive conduct on University grounds, with an exception for “casual recreational or social activities.” The challenge was brought by a traveling evangelical preacher who, with a friend, set up a banner, passed out religious literature and preached through a megaphone on a campus sidewalk. (See prior posting.) Links to filings with the Supreme Court in the case are available here.  Reuters reports on the Court's action. [Thanks to Thomas Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• Barbara Hoffman, Accommodating Disabilities in the Post-COVID-19 Workplace, (Indiana Journal of Law and Social Equality, Forthcoming).
• Andrew M. Koppelman, The Use and Abuse of Tradition: A comment on DeGirolami’s Traditionalism Rising, (Journal of Contemporary Legal issues, 2023 Forthcoming).
• Jane Tien, From The Vatican With Cash: Prosecuting Money Laundering In London Real Estate, (University of Miami International & Comparative Law Review, Vol. 30, 2022).
• Shubhankar Agnihotri, A Critical Analysis of Doctrine of Pious Obligation, (March 10, 2022).
• SpearIt, Understanding an American Paradox: An Overview of The Racial Muslim: When Racism Quashes Religious Freedom, (Hastings Constitutional Law Quarterly, Vol. 50, p. 141, 2023).
• Tasmiah Zaman, Freedom of Religion for Non-Muslims in Islam: A Pakistani Affair, (Law and Humanities Quarterly Reviews, Vol.5 No.2 (2022)).
• Jonathan F. Mitchell, Why Was Roe v. Wade Wrong?. (Forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)).
• Ashraf M,A. Elfakharani, The Impact of Covid 19 on the Obligations of Contractors through the Commercial Contract in Saudi Arabia and the Islamic Law Perspective, (Law and Humanities Quarterly Reviews, Vol.1 No.3 (2022)).

From SmartCILP:

• A Festschrift Honoring Abdullahi Ahmed An-Naim, Emory International Law Review, Vol. 36, Issue 4 (2022).
• Amanda Whiting, Book Review. Constituting Religious Conflict in a Multicultural State. Constituting Religion: Islam, Liberal Rights, and the Malaysian State, by Tamir Moustafa, [Abstract], 47 Law & Social Inquiry 1321-1326 (2022).

Transcript of Hearing Released in Challenge to FDA Approval of Mifepristone

On March 15, Judge Matthew Kacsmaryk in the federal district court in the Northern District of Texas held a hearing on the preliminary injunction motion in the widely-watched case of Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration. The full transcript of the hearing has now been released. As previously reported, the case challenges the FDA's long-standing approval for use in the United States of the chemical abortion drug mifepristone. Axios reports on the hearing.

New Utah Law Requires All Abortions To Be In Hospitals, Not In Clinnics

On Wednesday, Utah Governor Spencer Cox signed HB467 (full text) which requires that after January 1, 2024, all abortions be performed in hospitals, not in abortion clinics. Additionally, it expands the exception for rape and incest to also include any pregnancy of a child under 14 years of age. In another change, however, the new law allows abortions in all of these cases only before 18 weeks of pregnancy. The new law also makes a number of other changes in the state's abortion statutes.  Legislative history of the bill is available here.  AP reports on the new law. AP says in part:

Last year’s Supreme Court ruling [in Dobbs] triggered two previously passed pieces of legislation— a 2019 ban on abortion after 18 weeks and a 2020 ban on abortions regardless of trimester, with several exceptions including for instances of risk to maternal health as well as rape or incest reported to the police. The Planned Parenthood Association of Utah sued over the 2020 ban, and in July, a state court delayed implementing it until legal challenges could be resolved. The 18-week ban has since been de facto law.

Abortion-access proponents have decried this year’s clinic ban as a back door that anti-abortion lawmakers are using to limit access while courts deliberate.

Kamala Harris: Abortion Bans Without Rape and Incest Exceptions Are "Immoral"

Vice President Kamala Harris spoke yesterday in Des Moines, Iowa at a Roundtable on Reproductive Rights. (Full text of her remarks). She said in part:

We have seen what I would consider and do consider, as a former prosecutor, to be an immoral approach to survivors of rape or incest where, in states, there is even no exception after an individual has survived such an act of violation to their body and then, by their state, being deprived of the ability, after that, to make other decisions about their body.  It’s immoral. 

And let’s be clear: On this issue, one does not have to abandon their faith or deeply held beliefs to agree the government should not be telling her or any individual what to do with their body. 

Let them make that decision if they choose with their priest, with their pastor, with their rabbi, with whomever.  But the government should not be telling her what to do with her own body.

North Dakota Supreme Court: State Constitution Protects Right to Abortion to Save Life or Health of Mother

In Wrigley v. Romanick, (ND Sup. Ct., March 16, 2023), the North Dakota Supreme Court refused to vacate a trial court's preliminary injunction that barred enforcement of the state's 2007 abortion ban whose effectiveness was to be triggered by the overruling of Roe v. Wade. In particular, the court concluded that the absence of an exception in the abortion ban for preserving the health of the mother was a critical defect in the law.  The court said in part:

The North Dakota Constitution explicitly provides all citizens of North Dakota the right of enjoying and defending life and pursuing and obtaining safety. These rights implicitly include the right to obtain an abortion to preserve the woman’s life or health....

Fundamental rights are those which are deeply rooted in history and tradition and are implicit in the concept of ordered liberty.... North Dakota’s history and traditions, as well as the plain language of its Constitution, establish that the right of a woman to receive an abortion to preserve her life or health was implicit in North Dakota’s concept of ordered liberty before, during, and at the time of statehood....

Justice Tufte filed a concurring opinion, saying in part:

At this time we consider only the preliminary injunction, and we need not decide the constitutionally necessary scope of any health exception.

Justice McEvers, joined by Justice Crothers and Judge Narum, filed an opinion concurring specially, and saying in part:

I write separately to explain how and why the rights protected under the North Dakota Constitution may be broader than those protected under the United States Constitution.

NPR reports on the decision.

Albany, NY Catholic Diocese Files for Bankruptcy Reoganization

The Roman Catholic Diocese of Albany, New York announced that on Wednesday it filed a petition for bankruptcy reorganization in federal bankruptcy court.  The Bishop's letter to the faithful said in part:

We maintain global mediation would have provided the most equitable distribution of the Diocese’s limited financial resources but as more Child Victims Act (CVA) cases reached large settlements, those limited funds have been depleted. The Chapter 11 filing is the best way, at this point, to ensure that all Victim/Survivors with pending CVA litigation will receive some compensation. The decision to file was not arrived at easily, but we, as a Church, can get through this and grow stronger together.

To date, the Diocese has been named in more than 400 CVA lawsuits which were filed between Aug. 15, 2019, and Aug. 14, 2021. With the assistance of the Court and demonstrating its ongoing good faith commitment to Victim/Survivor claims, the Diocese has separately settled more than 50 CVA cases....

This filing also puts on hold the lawsuits involving the St Clare’s pensioners. That was not our purpose for filing. While many questions remain regarding the St. Clare’s pension fund, the plight of the pensioners is of great concern to me. The St. Clare’s pensioners are certainly close to my heart and, as I would do with anyone in a difficult situation, I offer my pastoral care.

CNA reports on the bankruptcy filing.

Suit Challenges Connecticut's Elimination of Religious Exemption from School Vaccination Requirement

Suit was filed last week in a Connecticut federal district court by a Christian preschool and the church that sponsors it challenging Connecticut's removal of religious exemptions from its statute requiring various vaccinations for preschool children. The complaint (full text) in Milford Christian Church v. Russell-Tucker, (D CT, filed 3/6/2023) alleges that the requirement violates plaintiffs' free exercise, free speech, freedom of association, equal protection, and child rearing rights. It alleges in part:

63. Conn. Gen. Stat. § 10-204a denies a generally available benefit – education– to children if their parents do not abandon their religious beliefs while affording the same benefit to parents and children who assert a medical exemption.

64. Adding insult to injury, Conn. Gen. Stat. § 10-204a prevents parents from seeking alternative education options for their children by applying the same mandate to private schools, daycares, and pre-schools, including those operated by churches and religious organizations.

65. In other words, Conn. Gen. Stat. § 10-204a forces parents to either renounce their religious beliefs and vaccinate their children or homeschool their children– something that many parents cannot do – thus depriving them any educational opportunities.

Christian Post reports on the lawsuit.